Volume 182 — California Reports

<p>[1] Municipal Corporations'—Tunnel Construction Assessment— Contest—Pleading—Parties.—In an action to contest the validity of a municipal tunnel construction assessment, it is not necessary that the mayor and the clerk of the hoard of supervisors be made parties defendant, where no good reason appears for making them parties aside from their official position.</p> <p>[2] Id.—San Francisco Charter—Tunnel Construction—Adoption op "Procedure Ordinance—Bight op Board op • Supervisors.— Under chapter "VIII" of article VI of the San Francisco charter, the hoard of supervisors may adopt a procedure wholly différent from that provided by chapter II of article-VIII for the acquisition of property for a right of way and approaches for a tunnel, and- for an assessment on private property for the costs and damages.</p> <p>[3] Id.—Use op Tunnel—Operation op Street-cars—Bight op City not Exclusive.—Under article VI, chapter VIII, section 5, of its charter, the city and county of San Francisco cannot have an exclusive right to the use of a tunnel constructed to provide a way for one or more street-ear lines, and the use of the tunnel exclusively for cars on a branch of the street-car system operated by the city is unauthorized.</p> <p>[4] Id.—Construction op Tunnel por . Street-cars—Special Benefit to Private Property Owners.—The construction of a municipal tunnel in which no way is provided for passage through it except in street-cars is specially beneficial to private property upon which the assessment is levied, where without the making of the tunnel the inhabitants of the more remote district could not reach the city by means of street-cars except by a circuitous route involving considerable delay, and means of access to the city is confined to such car lines and to travel by vehicles or on foot over steep hills.</p> <p>[5] Id.—Assessment in Excess of -Benefits—When Valid.—Where conditions are such that the city authorities might reasonably conclude that there was special benefit to the property assessed, the court cannot set aside the assessment on the ground that it exceeds the benefits received from the improvement.</p> <p>[6] Id.—Tunnel not Opened to All Modes of Travel—Public Use.—A municipal tunnel between two parts of the municipality is a public improvement, for the public benefit, and is a public use, although not open to all modes of travel, where it is open to the general public for travel on street-car lines running through it.</p> <p>[7] Id.—Tunnel Construction Ordinance—Public Uses—Validity Unaffected.—The claim that a tunnel construction proceeding is invalid because the tunnel constitutes a single public use, whereas the tunnel procedure ordinance authorized the construction of a tunnel “for public uses,” is without merit, since the singular number includes the plural, and vice versa.</p> <p>[8] Id.—Acquisition of Land for Tunnel Purposes—San Francisco Charter.—Article VI, chapter VIII, sections 1, 2, 3, and 6, of the charter of the city and county of San Francisco, authorize the construction of a tunnel through land to be acquired, if the city does not already have the necessary property, and to carry on both the acquisition and construction in a single proceeding, and the city is not limited in the construction to land in which it has a previous easement.</p> <p>[9] Id.—Acquisition of Strip Necessary for Construction— Effect of Charter Provision.—In view of article VI, chapter VIII, section 2, of the charter of the city and county of San Francisco, where the resolution of intention for the construction of a tunnel shows that a part of the ninety-foot strip was acquired as an addition to the width of a street, a part of which was taken for the tunnel and thereby made unfit for a street, such strip must be deemed necessary for the construction.</p> <p>[10] Id.—Use of Entire Strip—Record—Presumption on Appeal.— In a proceeding to set aside an assessment for the construction of a municipal tunnel in the city and county of San Francisco, the burden rests upon the plaintiff taxpayer to show errors in the decision of the board of supervisors in acting upon the report of the board of public works, not shown upon the face of the record.</p> <p>[11] Id.—Property not Benefited—Omission from Assessment— •Construction of Tunnel Construction Ordinance.—A provision in a municipal tunnql construction ordinance that upon receiving the resolution of intention of the board of supervisors ordering the construction of the tunnel, the board of public works, after first determining the amount of damages that will be sustained by persons claiming damages, must estimate the total amount of costs of construction, including the costs of acquiring the necessary land and the damages sustained, and assess the total sum upon the several lots of land benefited within the district or districts of assessment, so that each of the lots shall be assessed in accordance with its benefits caused by such construction, necessarily implies that no- benefits shall be assessed against any parcel which the board may find is not benefited.</p> <p>[12] In.—Omission of Nonbenefited Parcels—Discretion of Board of Public Works—Construction of Tunnel Construction Ordinance.—A provision in such an ordinance that the board of public works must prepare and report to the supervisors a map of the districts as specified in the resolution of intention, showing the subdivisions of property therein as shown by the assessment maps of the city and county assessor, giving each subdivision a separate number, a list showing the names of the persons to whom each parcel is assessed and an estimate of the benefits which each of the respective subdivisions or parcels will receive from and by the construction of the tunnel, implies discretion to estimate that some parcel will receive no benefit.</p> <p>[13] Id.—Unassessed Property Within Assessment District— Bight of Protest by Person Interested—Construction of Tunnel Construction Ordinance.—A provision in such an ordinance that any person interested may object to the extent of , the districts declared to be benefited in the resolution of intention, or to the amount of benefits fixed by the hoard of public works in its report, or to any other act, determination or proceeding of the board or of the supervisors in the proceeding, and may file a written statement of Ms objections, and on those grounds protest against the confirmation of the reported assessment, implies the right to protest against the omission to assess benefits upon any parcel not reported as benefited by the board of public works.</p> <p>[14] Id.—Property Benefited—Amount of Assessment—Finality of Decision of Board of Supervisors.—The final decision of the board of supervisors as to the property benefited and the amount to be assessed for tunnel construction is conclusive, unless attacked on the ground of fraud or mistake.</p> <p>[15] Id.—Board of Supervisors’ Ultimate Authority.—The court will not declare such decision void unless it can plainly see from the face of the record or from facts judicially known that the assessment so finally confirmed is not proportional to benefits.</p> <p>[16] Id.—Action to Set Aside Assessment—Inquiry as to Other Assessments—Construction of Ordinance—Provision in a municipal tunnel construction ordinance that an action may be begun by any person aggrieved to contest the validity of the assessment does not give a contestant the right to inquire into the particulars of each assessment and have the court revise it and set it aside if it shall find a different apportionment would be more ■ justi or equitable, or that some of the lots not assessed were benefited.</p> <p>[17] Id.—¡Filing Protests to Report op Board op Public Works— Reasonableness op Time.—A municipal tunnel construction assessment is not invalid because persons interested were only given twenty days after the first publication of the notice of the filing of the report of the board of public works with the board of supervisors to file their protests, the said period not being unreasonable.</p> <p>[18] Id.—Action to Set Aside -Assessment—Evidence—Benefits— Action op Board in Making Estimate.—In an action to set aside a municipal tunnel construction assessment, it was not erroneous to exclude evidence as to how the board of supervisors proceeded in estimating what the benefits assessed should be upon different blocks, since such evidence was incompetent to impeach the assessment finally made by the supervisors upon the hearing.</p>

<p>■ The facts are stated in the opinion of thé court.</p> <p>A. A. Moore, Stanley Moore and Elliott Johnson for Appellant.</p>

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

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

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

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

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

<p>The facts are stated in the opinion of-the court.</p> <p>William T. Kearney and Edward C. Harrison for Appellant.</p>

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

<p>APPLICATION for Writ of Supersedeas to stay execution pending an appeal from a judgment of the Superior Court of Alameda County.</p> <p>The facts are stated in the opinion of the court.</p> <p>James F. Sheehan, Chas. J. Heggerty and Knight & Heggerty for Appellant.</p>

<p>[i] Contract—Written Instrument—Modification.—A contract in writing cannot be modified by oral negotiations leading up to its execution or by a subsequent or contemporaneous oral agreement in contradiction of its terms.</p> <p>1. Supplementing written contract by proof of collateral oral agreement, note, Ann Cas. 1914A, 454.</p> <p>[2] Building Contract—Time of Payment of Installments—Side Agreement Between Owner and Contractor — Failure to Record—Void Building -Contract.—A separate and distinct agreement between an owner and building contractor with reference to the time of payment of the installments of the contract price, would invalidate the building contract, if the agreement were not recorded.</p> <p>[3] Principal and Surety—Release of Contractor’s Surety—Undisclosed Side Agreement Between Owner and Contractor.— The making of a side agreement between an owner and contractor with reference to payment of installments of the contract price without disclosing the existence thereof to the contractor’s surety, would release the surety on the ground of fraud.</p> <p>[4] Id.—Agreement Between Contractor and Corporation—Advancement of Moneys During Work—Assignment of Payments—Surety on Contractor’s Bond not Released.—Where a pipe-line company, sixty per cent of whose stock was owned by an oil company and who had the same general manager as the oil company, made an agreement with the oil company’s building contractor to advance certain moneys to the contractor at specified intervals during the construction of oil reservoirs, in return for the contractor’s notes secured by assignment of payments due under the building contract, such agreement did not discharge the surety on the contractor’s bond on the ground that it modified the building contract providing for payments to the contractor at different stages of the work under section 1184 of the Code of Civil Procedure, without- disclosure to the surety, in the absence of any showing that the agreement was made for the purpose of defrauding the surety.</p> <p>[5] Id.—-Construction of Contract—Right of Surety.—While the surety is entitled to stand upon the strict letter of his contract and insist that the same shall not be altered, this does not mean that he is entitled to invoke equity to read into the written contract provisions not contained therein, for the purpose of defeating his own obligation.</p> <p>[6] Id.—Indemnity Agreement—Right of Owner to Sue.—The owner is entitled to sue upon a contract between the contractor’s surety and ,an indemnitor wherein the latter agreed to pay the surety all damages for which the surety should become responsible upon the bond before it should be compelled to pay the same.</p>

<p>[1] Estates op Deceased Persons—Honresident Executor—Submission to Jurisdiction—Bight to Administer.—A person named in a will as executor, who is a resident of another state, is not disqualified from acting nor rendered ineligible for appointment because he is not a permanent resident of this state, where he comes into the state and submits himself to the jurisdiction of the court for the purposes of administration of the estate, and intends to remain as long as may be necessary to complete the administration.</p> <p>[2] Id.—Incompetency op Executor—Want op. Integrity—Insufficiency op Evidence.—An executor is not incompetent by reason of want of integrity, where the only impeachment of his integrity is based on the claim that he was not courteous to the widow and that he disregarded her requests or wishes concerning the selection of an attorney to advise him in the administration of the estate.</p> <p>[3] Id.—Frivolous Appeal.-—An appeal from an order denying an application for letters of administration with the will annexed, taken without any reasonable hope of success and which occasions a delay of at least a year in the settlement of the estate, is frivolous, and presents a proper case for the imposition of a penalty.</p>

<p>[l] Public Lands—Besurvey of Lands in Imperial County—Old Survey Superseded by New—Decision on Former Appeal Conclusive.—In this action brought under the provisions of the Torrens Land Act for a decree establishing title in petitioners to certain school lands, it is held the decision on the former appeal (172 Cal. 363) that under the act of Congress of July 1, 1902, providing for a resurvey of certain townships now situated in Imperial County, the new survey supersedes the old one, and regulates the disposition of the public lands within the area affected as to all persons not in the actual occupancy of the land, is conclusive on this appeal.</p> <p>[2] Torrens Land Act—Scope of Proceeding—Pleadings—Judgment for ¡Recovery of Possession.—In a proceeding for certification of title under the Torrens Land Act, conceding that the purpose of the proceeding is simply the obtaining of conclusive evidence of title which shall be final in the courts, where certain defendants appear and in appropriate pleadings deny the claim of petitioners and allege title in themselves, the court is justified in decreeing that the petitioners are entitled to immediate possession against such defendants, since the proceeding by reason of the issues is in substance and effect one to quiet title to real property. ></p>

<p>ORDER to show cause as to the applicability of the provisions of the Code of Civil Procedure relating to the disbarment of attorneys at law in the case of removal from office under section 758 et seq. of the Penal Code. Order discharged.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>A. L. Whittle, W. H. Smith, Louis W. Bennett, Morrison, Dunne & Brobeck and Chapman & Trefethen for Appellant.</p>

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

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

<p>APPLICATION for Writ of Prohibition to prevent the Superior Court from trying the petitioner for a public offense.</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 A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>HI Negligence — Injury to Automobile Passenger — Street Excavation by Sewer Contractor—Finding—Negligence Per Se. In an action against a sewer contractor for injuries to a passenger in an automobile which ran into a trench opened by the defendant for the purpose of facilitating the work, the court, in making the finding that the trench was maintained by defendant unguarded either by lights or barriers in violation of a city ordinance, found in effect that the defendant was guilty of negligence per se,</p> <p>[2] Id.—Manner and Cause of Automobile Accident—Certainty of Evidence.—In this action against a sewer contractor for injuries to a .passenger in an automobile which ran into a trench opened by the defendant for the purpose of facilitating the work, and which had been left unguarded by the contractor, it is held the record presents no uncertainty as to how the accident happened or what caused it.</p> <p>[3] Id.—Negligence of Contractor—Evidence.—In such action, the plaintiff sufficiently established her case by showing that the contractor maintained the trench between two street-car tracks without any guard or barrier to prevent persons, teams, and automobiles from falling into it, and without any light or lights to give warning of the danger.</p> <p>[4] Id.—Evidence—Pleading—Admissibility of City Ordinance'.— In such action, an ordinance of the city requiring the maintenance of barriers and lights about such an excavation was admissible without being pleaded, since the cause of action was not a violation of the ordinance, but the negligence of the defendant in maintaining the trench without barriers or lights, and the ordinance was evidehce of such negligence.</p> <p>[5] Id.—Permanency of Injuries—Sufficiency of Evidence.—In this action it is held the finding that plaintiff’s injuries were permanent is sustained by the evidence, and the judgment of one thousand two hundred dollars was not excessive.</p> <p>[6] Id.—Excessive Verdict — Setting Aside by Court—Appeal— Findings—Applicability of Bule.—The rule that 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 judge is at liberty to interpose his judgment as against that of the jury, applies equally to the findings of a trial court when considered on appeal.</p>

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

<p>[1] Street Law—Improvement op Streets in City op Richmond— Applicability of Improvement Act op 1911.—In view of the fact that the charter of the city of Richmond is wholly silent as to the mode of the exercise of the authority therein given for the improvement of streets, an express provision in a resolution of intention that the resolution is adopted under the Street Improvement Act of 1911 amounts to an adoption of all of the provisions of the act as to the mode of executing the power, and is authorized by law.</p> <p>[2] Id.—Performance op Work—Waiver op Protest—Agreement Between Owners and Contractor.—Where owners of lands abutting upon the portion of a street to be improved entered into an agreement with the contractor expressly waiving any right of protest against the performance of the work or against the assessment district, such owners will not thereafter be heard to complain of any matter or thing embraced within the terms of the waiver.</p> <p>[3] Id. — Street Improvement Act op 1911 — Determination op Appeal — Act op Council Conclusive.—Under the Street Improvement Act of 1911, the city council acts judicially in the determination of an appeal, and, as in the case of the judgment of any tribunal for which there is no review provided by the statute, its action must be held conclusive, in the • absence of fraud, whenever the fact determined by it is brought into question collaterally before any other tribunal.</p> <p>[4] Id.—Decision op Council upon Appeal—Statements op Councilmen—Presumption op Decision upon Merits not Overcome.— Where a city council had a full hearing on an appeal, under section 26 of the Improvement Act of 1911, and heard witnesses and argument and their decision was supported by the evidence, the presumption that the decision was based upon a full and fair consideration of the case upon its merits is not rebutted by evidence of statements made by one or more couneilmen before the conclusion of the hearing expressing an opinion that the assessment was unjust, but that, as the matter would go to the courts in any event, it would be fairer to the contractor to uphold the assessment.</p> <p>[5] Id.—Action to Cancel Assessment—Failure to Assess According to Benefits—Nonsuit.—In an action to declare invalid proceedings for the creation of a street improvement district and to cancel the assessments on plaintiff’s property on the ground that the same was not made in proportion to benefits received, the plaintiff cannot complain of a nonsuit on such ground unless there appears in the record convincing and conclusive evidence that under no conceivable conditions could his property have been benefited in the proportion stated by the assessment.</p> <p>[6] Id.—Evidence—Assessments According to Benefit.—A failure to assess according to benefit is not incontestably established by the fact that plaintiff’s land was assessed to a depth of two hundred feet, while other land was assessed only to a depth of one hundred feet, or by the fact that a narrow strip separating plaintiff’s land from the street for a portion of its length was assessed at the same rate per square foot as the land whose frontage it obstructed, and that plaintiff’s land, which was situated between one hundred and two hundred feet from the street was assessed at the same rate per square foot as the land bordering on the street itself.</p> <p>[7] Id.—View of Premises by Court—Benefit—Presumption.—In an action to cancel an assessment for street improvement, where the court viewed the premises, it must be presumed on appeal from the judgment upholding the assessment that nothing was revealed by the view which would make it inconceivable that all of plaintiff’s land might have received a substantially uniform benefit from the improvement.</p>

<p>[1] Corporations—Society Conducting Private Hospital—Organization not A Charitable Society.—A society organized as a corporation in 1862 under the provisions of chapter 8 of the act of April 22, 1850, for the purpose of securing mutual assistance to its members in case of sickness without payment other than of monthly dues, and which established a hospital and employed physicians, is not' a charitable or benevolent society within the meaning of section 1313 of the Civil Code.</p> <p>[2] Id.—Admission op Nonmembers as Pay-Patients—Eligibility to Membership—Character op Society not Changed__Neither the admission to the hospital of nonmembers as pay-patients at prices to be agreed on, nor the fact that all white persons were eligible to membership is sufficient to give such corporation the character of a charitable or benevolent society, under section 1313 of the Civil Code.</p> <p>[3] Charitable Use—Public Benefit.—One of the essential features of a charitable use is that it shall be for the public benefit, either for the entire public or for some particular class of persons, indefinite in number, who constitute a part of the public.</p> <p>3. As to what are charitable uses and trusts, note, 63 Am. St. Rep. 248,</p> <p>M Corporations Organized Under Act op 1850—Mature op.—The language of the first seetion of chapter 8 of the act of 1850 (Stats. 1850, p. 373, see. 175), providing that it shall be lawful for all “churches, congregations, religious, moral, benevolent, literary or philanthropic associations or societies,” to become incorporated under the provisions of the act, does not justify the conclusion that all corporations organized under the act are, ipso facto, charitable or benevolent associations or corporations.</p> <p>[5] Id.—Determination op Character op Corporation—Controlling Factors.—The character of a corporation organized under the act of 1850, either as a de facto corporation or as a voluntary association, assuming that the act does not authorize the formation of any corporation other than a charitable one, is to be determined by the terms of its articles of incorporation and its bylaws and its conduct and acts in pursuance thereof.</p> <p>[6] Estates op Deceased Persons—Will—Bequest to Charitable Use—Construction op Code.—The fact that makes a bequest void under section 1313 of the Civil Code is that it is made to a charitable or benevolent society or corporation, or t'o any person or persons in trust for charitable uses within thirty days . before the death o'f the testator, and the purpose in mind of the testator . and his motive are alike immaterial.</p> <p>[7] Id.—Bequest to French Hospital—Trust not Created—Construction op Will.—A bequest unto the “French Hospital of the City of Los Angeles” of the sum of five thousand dollars makes the money the absolute property of the hospital, and the language does not impose any trust.</p> <p>[8] Id.—Corporation Organized Under Act op 1850—Bight to Take Bequest by Will.—A corporation organized under the act of 1850, which act authorized it to take gifts of real or personal property, may take a bequest by will, where it has not elected to continue under the code as provided in seetion 288 of the Civil Code.</p>

<p>[1] Fixtures—Personalty Used, in Working Mine—Inapplicability of Section 661, Civil Code, to Oil Operations.—The kind of property described in section 661 of the Civil Code, which was adopted in 1872, and which provides that sluice-boxes, flumes, hose, pipes, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine, shows that it was intended to apply to a mine in the ordinary meaning of the term, such as a quartz or placer mine, and while the development and production of petroleum is, for some purposes, classed as mining, the section was not intended to apply to oil operations.</p> <p>[2] Conversion—Wrongful Seizure Under Attachment—Action by Executors—Distribution—Bight of Substitution.—In an action by executors against a sheriff for the wrongful seizure of property of the estate, an heir to whom the property and all right's of action growing out of the seizure had been distributed and who had received from the other heirs a conveyance of their claim in the property and interest in the suit was entitled to be substituted in place of the executors by supplemental complaint.</p> <p>[3] Estates of Deceased Persons—Wrongful Attachment—Action for Trespass—Bight of Executors.—Executors in possession of property wrongfully seized under attachment are entitled to maintain an action for the trespass.</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>[1] Husband and Wife—Loan to Wife—Character of Money.—A married woman may borrow money to invest in real property, but money borrowed by her during marriage for that purpose will be regarded in law as community property, unless it be borrowed by her upon the faith of existing separate property belonging to her.</p> <p>[2] Id.—Investment by Husband of Money Received from Wife— Character of—Findings Sustained by Evidence.—In this action by a surviving wife against the administrator of the estate of her deceased husband to impress a resulting trust in her favor upon certain real property, on the theory that part of the sum paid as consideration for such property was money received by her from a loan upon her personal credit, it is held the evidence sustains the findings that no part of the consideration paid by the deceased for the property was the separate property of the plaintiff.</p> <p>2. Resulting trust as arising from purchase in name of one spouse with funds furnished partly by each spouse, notes 127 Am. St. Rep. 258; Ann. Cas. 1915D, 654.</p> <p>Resulting trust as arising from purchase by husband in his own name with wife’s money, notes, 127 Am. St. Rep. 256; 6 L. R. A. (N. S.) 381; Ann. Cas. 1915D, 625; 26 L. R. A. (N. S.) 161.</p> <p>[3] Resulting Trust—Evidence—Nature of Proof.—Where a resulting trust in property is claimed, it is incumbent upon him who asserts that such a trust exists in his favor to establish the fact by clear and convincing evidence.</p>

<p>[1] Corporations—Liability of Stockholders—Statute of Limitations.—The liability of a stockholder of a corporation created by section 3 of article XII of the constitution and section 322 of the Civil Code for such proportion of all its debts and liabilities contracted or incurred during the time he was a stockholder as the amount of stock or shares owned by him bears t'o the whole of the subscribed capital stock or shares of the association or corporation, is a liability created by law within the meaning of section 359 of the Code of Civil Procedure, and an action upon this primary and independent liability must be brought within three years after the liability was created.</p> <p>[2] Id.—Manner of Creation of Liability.—The liability is created by the consummation of the contract, act, or omission by which the liability is incurred, regardless of its character.</p> <p>[3] Id.—Judgment Against Corporation—Action Against Stockholders—Time not Extended.—The rendition of a judgment' against the corporation does not create a new liability or extend the time prescribed by the statute for bringing suit against the stockholders.</p> <p>[4] Id.—Breach of Covenant of Lease by Corporation—Liability of Stockholders—Statute of Limitations.—The liability of a corporation for damages for breach of a covenant contained in a contract of lease, being a liability created by contract, is contracted or incurred at the time of the execution of the contract, regardless of the time of t'he breach, and an action against the stockholders on their statutory liability is barred by the provisions of section 359 of the Code of Civil Procedure, where not commenced within three years after the execution of the lease.</p>

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

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

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

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

<p>[1] Appeal—Action on Reinsurance Policy—Availability of Special Defense—Amendment of Complaint—Decision not Law of the Case.—In an action upon a policy of reinsurance, the decision on a former appeal that a special defense, a demurrer to which had been erroneously sustained by the trial court, was available to the defendant, is not the law of the ease, where upon the return of the case an important change in respect to the facts of the case was created by an amendment of the complaint.</p> <p>[2] FntE Insurance—Reinsurance—Indorsements on Policy.—A clause in a standard form policy of fire insurance providing that liability for reinsurance shall be as specifically agreed hereon gives a controlling degree of importance to the terms of whatever indorsements are placed upon a policy of reinsurance by the immediate parties thereto, and in the ease of any inconsistency between the terms of such an indorsement and the terms of the general form, the latter in so far as they are inconsistent must' give way.</p> <p>[3] Id.—Indorsement on Policy of Reinsurance—Adjustment and Settlement by Original Insurer—Liability of Reinsurer.—An indorsement on a policy of reinsurance that the policy is subject to the same risks, valuations, conditions, and adjustments as are or may be taken by the reinsured, and loss, if any, thereunder is payable pro rata with the reinsured and at the same time and place, makes a voluntary, bona fide settlement by the original insurer binding on the reinsurer, where there is no question as to the liability of the original insurer and the reinsurer upon their respective policies up to the time of the occurrence of the disaster out of which their respective liabilities are claimed to have arisen.</p> <p>[4] Id.—Action on Reinsurance Policy—Bad Faith in Adjustment of Loss—Absence of Evidence—Disregard by Court.— In an action on a policy of reinsurance, the court is entitled to disregard the issue of the bad faith of the plaintiff in making its adjustment of the loss, in directing the jury to find a verdict in .plaintiff’s favor, where no evidence is presented on such issue.</p> <p>[5] Id.—Rubber Stamp Reinsurance Clause—Effect of.—The rule declared by section 1651 of the Civil Code that where a contract is partly written and partly printed, or where part of it is written or printed under the special direction of the parties, \and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form, applies to a reinsurance clause stamped upon the face of the policy by a rubber stamp, and gives such clause predominance over a fallen building clause contained in the policy.</p> <p>[6] Id.—Predominance of Reinsurance Clause—Effect of Clause in Policy as to Interests Other Than Insured.—A reinsurance clause stamped on a policy of reinsurance by a rubber stamp is given predominance over a fallen building clause in the policy, by a printed condition contained in the policy to the effect that as to anyone other than the insured having an interest, “the conditions hereinbefore contained” shall apply in the manner “written upon, attached or appended hereto."</p> <p>[7] Id.—Action on Reinsurance Policy—Evidence—Palling of Building Before Pire—Failure to Show Relevancy.—In an action on a reinsurance policy, it cannot be claimed that error was committed in rejecting evidence to the effect that the building had fallen before the fire, where it was not made plain that the defendant was counting on such evidence, which in the state of the record was immaterial, as merely a link in the chain of evidence to show had faith on the part of the plaintiff in settling with the insured in violation of a supplemental agreement between the two insurance companies set out in the answer but not offered in evidence.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank Karr, R. C. Gortner, W. R. Millar and Kenton A. Miller for Appellants.</p> <p>Albert Lee Stephens, City Attorney, Charles S. Burnell, Assistant City Attorney, and Wm. P. Mealey, Deputy City Attorney, for Respondent.</p>

<p>[1] Estates of Deceased Persons—'Will—'Uncertainty of Bequest —Law of Succession—When Inapplicable.—The rule that where property is bequeathed and the will is uncertain, the court, in ascertaining the purpose of the testatrix, will assume the int'ent to be to distribute the property in accordance with the law of succession, has no application to a residuary clause under which none of the legatees would take in the absence of a will, although one of them, a daughter-in-law, was regarded by the testatrix as her daughter.</p> <p>[2] Id.—Residuary Clause — Division op Bequest—Interpretation op Word “Between.”—A clause in a will providing that the residue of the estate shall be divided equally “between” the daughter-in-law of the testatrix, and the four children of the sister-in-law of the testatrix, naming them, is to be interpreted as calling for an equal division of such residue among the five legatees, and not one-half to the daughter-in-law and the other one-half to the four children.</p>

<p>[1] Constitutional Law—Tribunals Empowered to Revoke Licenses. Tribunals, such as the board of medical examiners, or other boards empowered to revoke licenses which they have previously granted, for cause defined by law, are not courts in the strict sense, since they are not exercising “the judicial power of the state” as that phrase is used in the constitution conferring judicial power upon courts, and statutes creating such boards and conferring upon them such powers are constitutional.</p> <p>[2] Certiorari—Revision of Decisions of Board—Exercising Quasi-judicial Power.—Where a board has exercised <jyasi-judieial power, its decisions are subject to revision by way of certiorari.</p> <p>[3] State Medical Law—Revocation of License for Unprofessional Conduct—Powers of Board—Constitutionality of Provision.— The provision of the act for the regulation of the practice of medicine (Stats. 1913, p. 722), empowering the board of medical examiners to suspend or revoke a license to practice medicine upon finding the practitioner guilty of unprofessional conduct', is not unconstitutional as an attempt by the legislature to vest part of the judicial power of the state in a tribunal other than one authorized by section 1 of article VI of the constitution.</p> <p>[4] Id.-—Pleading—Sufficiency of Complaint.—A complaint filed before the state board of medical examiners charging a physician, in the language of the Medical Act, with committing a criminal abortion, is sufficient to give the board jurisdiction, without stating the acts defined in the Penal Code as constituting such crime.</p> <p>[5] Id.—Evidence — Suspension of License — Testimony of Accomplices,—In a proceeding before the state board of medical examiners for the revocation of the license of a physician for unprofessional conduct, the evidence is not insufficient to justify a revocation, where based wholly upon the testimony of persons who would in a criminal prosecution have been classed as accomplices.</p> <p>[6] Id.—Proceedings Before Medical Examiners—Bules of Plead- . ing and Evidence in Criminal Cases Inapplicable.—The rules of pleading in criminal cases and the rules limiting the effect of evidence therein as fixed in the Penal Code do not apply to proceedings before the board of medical examiners.</p>

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

<p>APPLICATION for a Writ of Mandamus to compel a municipal board of public works to enter into a contract for tunnel 'Construction.</p> <p>The. facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandamus to compel the registration of a voter.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Street Law — Proceedings Under Vrooman Act — Giving op Notice to Owner to Redeem prom Sale — Evidence — Deed.— Under the aet of 1885, commonly called the Vrooman Act, with the amendments in force in the year 1912 making deeds executed in pursuance of sales for street assessments, when duly acknowledged, “primary” evidence of the regularity of all the proceedings, such a deed, in the absence of proof to the contrary, proves the giving of notice to the owner to redeem the property from the sale, if such notice is essential to its validity.</p> <p>[2] Id.—Sale to Satisfy Bond—Statute . Controlling.—The validity of a sale of property to satisfy a street' improvement bond must ■be determined upon the provisions of the Bond Act as it existed when the bond was issued.</p> <p>[3] Id.—Assessment and Statute a “Contract.”—A street assessment is a contract and the provisions of the statute in force at the time prescribing the manner of its enforcement are a part of such contract.</p> <p>[4] Id.—Bond a “Contract.”—A street improvement bond issued upon an assessment by reason of the failure of the owner to pay the same within the prescribed time constitutes a contract.</p> <p>[5] Id.—Effect op Bond—Special Power of Sale.—The bond issued" upon a street assessment, in effect, creates a power of sale whereby the contractor may enforce the lien of the assessment against' the property described in the bond, and the city treasurer is thereby made & special agent of the parties concerned, with authority to execute the power according t'o its terms, as found in the statute under which the bond is issued.</p> <p>[6] Id.—Remedy op Bondholder—Change op Statute—Prospective Effect.—A law enacted after such contract is made, and which materially alters the remedy of the bondholder to enforce his lien by means of a sale, or the rights of the owner under the law existing at the time the bond was issued, cannot apply to previous contracts and can have only a prospective effect.</p> <p>[7] Id.—Sale op Property—Limited Authority op City Treasurer. In making a sale to satisfy a street improvement bond, the city treasurer, being a special agent authorized to execute the power of gale defined in the bond and statute, is bound by the rules applicable to special agents, and Ms acts beyond those which are legitimately necessary to carry the particular power into effect do not bind the parties concerned.</p> <p>[8] Id.—Validity op Street Assessment Sales — Applicability op Bules Governing Ordinary Tax Sales.—The same rules apply to the validity of street assessment sales as in. sales for ordinary taxes, and the prescribed mode of procedure, so far as it is specific and of possible benefit to the owner, must be followed.</p> <p>[9] Id.—Notice op Sale — Statement op Amount Due — Construction op Bond Act.—Under section 5 of the Bond Act (Stats. 1899, p. 43), providing that notice of sale of bonds for street assessments shall state “the amount due thereon,” the am'ount due on the bond at the time the city treasurer gives the notice must be stated.</p> <p>[10] Id.—Notice op Sale—Statement op Amount Due—Provision Mandatory.—The requirement of section 5 of the Bond Act (Stats. 1899, p. 43) that notices of sales of bonds for street assessments shall state the amount due thereon is mandatory, and must be strictly followed, and the failure to state the correct - amount due on the bond in the notice renders a sale made upon such a notice void.</p> <p>[11] Id.—Misstatement of Amount Due — Void Sale.—The statement by a city treasurer in a notice of sale to satisfy a street improvement bond of an amount less than was due cannot be assumed to be without prejudice to the property owner, since the bondholder would have the right to complain and avoid the sale, and nothing is to be presumed against the owner and in favor of the proceedings upon a sale of property to enforce a lien for a tax or assessment.</p>

The facts are stated in the opinion of the court. Overton, Lyman & Plumb and Wm. B. Himrod for Plaintiff and Appellant. Charles S. Burnell, City Attorney, and Clyde M. Leach, Deputy City Attorney, for Defendants and Respondents. Edgar G. Pratt and Henry M. Willis for Intervener and Appellant.

<p>[1] Disqualification of Judge — Action to Enjoin Pumping from Underground Flow of.River—Ownership of City Lot Within Delta—Consideration of Complaint.—In determining whether a judge of the superior court is disqualified from sitting or acting in an ■ action to restrain an irrigation district from pumping water from t'he underground flow of a river by reason of his ownership of a city lot within the delta of the river, allegations of the complaint to the effect that the waters penetrate the soil of the entire delta, including lands not belonging to any of the plaintiffs, that the water moistens and makes productive the soil of such lands of other parties, and that all of such lands require the continuance of the underflow, cannot be regarded as surplus-age, where by other allegations the action is shown t'o have been brought for the benefit of all persons within the delta who have a like interest with the plaintiffs.</p> <p>[2] Id.—Prohibition — Pleading — Allegation of Facts Outside of Complaint.—In a proceeding in prohibition to prevent further proceedings in an action on the ground that the judge was disqualified the petitioner has the right to show the disqualification by proper allegations and proof of facts not shown upon the face of the complaint.</p> <p>[3] Id.—Absence of Use of Underground Flow Immaterial.—The disqualification of a judge to sit or act in an action to enjoin an irrigation district from pumping water from the underground flow of a river by reason of his ownership of a city lot within the river delta is not removed because he had not hitherto used the underground flow available in his lot and no showing was made that he had any intention of so doing, where the theory of the complaint was that all owners of lands within the delta had the right to use the flow beneath their respective lands at any time, even if it be admitted that the theory be erroneous.</p> <p>[4] Id.—Extent of Disqualification—Question of Law as Well as Fact.—The disqualification of a judge t'o sit or act in an action in which he is interested extends to an interest in a question of law as well as to an interest in a question of fact if it affects or determines the interest of the judge in the subject matter involved.</p> <p>1. Disqualification of judge by interest in legal question involved in litigation, note, Ann. Cas. 1917A, 1068.</p> <p>[5] Pleading — Parties — Action Brought on Behalf of Others— Bight of Intervention.—Where an action is brought not alone /or the plaintiffs but for all other persons who have a like interest with the plaintiffs, the persons thus represented are regarded-as quasi parties, and may intervene and make themselves actual parties when necessary for the protection of their interests, and they are bound by the decree.</p> <p>[6] Disqualification of Judge—Action to Bestrain Pumping Operations—Slight Injury to Property of Judge—Disqualification not Bemoved.—The disqualification of a judge to sit or act in an action to enjoin an irrigation district from pumping water from the underground flow of a river by reason of his ownership of a city lot within the river delta is not affected by the fact that the injury to his lot from the pumping operations is so slight that he could not obtain an injunction to restrain such diversion.</p> <p>[7] Injunction — Continuance of Acts — Inappreciable Immediate Damage.—An injunction will lie to prevent a wrongful act if the continuance of such act's will, in time, ripen into an easement in favor of the defendant which will operate to deprive the plaintiff of the use of his property, or some part thereof, or where it takes from him the substance of his estate, although the immediate damage inflicted by the act is inappreciable.</p> <p>[8] Disqualification'of Judge—Extent of Interest in Subject Matter of Action.—If a judge has an interest in the subject matter of the action, or has property which may be directly affected by the result of the judgment that may be rendered therein, the court will not consider the extent of the interest nor inquire into the effect it would have on his rulings, since it is sufficient to disqualify him if it is a certain, definable, pecuniary, or proprietary interest or relation which will be directly affected by the judgment that may be rendered.</p> <p>[9] Id.—Disqualification of Judge—Bight to Baise Question— Lack of Estoppel.-—The provisions of section 170 of the Code of Civil Procedure clearly imply that there can be no estoppel t'o raise the question of the disqualification of a judge to sit or act in an action in which he has an interest in - the subject matter, by the acts or conduct of a party, at least prior to final judgment.</p> <p>[10] Id.—-Construction of Section 170, Code of Civil Procedure —Be-enactments Without Amendment — Presumption as to Legislative Intent.—In view of the fact that section 170 of the Code of Civil Procedure has been several times re-enacted without change, it must be presumed that the legislature intended it to have the meaning and effect that had been given to it by previous decisions of the supreme court.</p> <p>[11] Id.—Disqualification of Judge—Consent of P'arties.—Where a judge is disqualified by reason of interest in the subject matter of the action, consent of parties cannot impart validity to the proceedings, and a party to the action who desires to attack them is not estopped from doing so by the fact that he attended during the trial without raising the objection.</p> <p>[12] Id.—Action Against Irrigation District—Disqualification of Judge Under Subdivision 5, Section 170, Code of Civil Procedure.—A judge is disqualified to sit or act in an action to enjoin an irrigation district from pumping water from the underground flow of a river by reason of his ownership of a city lot within the river delta under subdivision 5 of section 170 of the Code of Civil Procedure, which declares that in an action or proceeding by or against the reclamation board of the state, or any reclamation, levee, swamp-land, or drainage district, or any public agency, or trustee, officer, or employee thereof, affecting or relating to any real property, the judge of the superior court of the county in which the property is situated shall be disqualified to sit or act, since the phrase “public agency” includes irrigation districts.</p>

<p>[1] Adoption—Illegitimate Child—Essentials.—In view of section 230 of the Civil Code, four things are essential to the adoption of an illegitimate child by its father, first, he shall be its natural father, second, he shall have publicly acknowledged himself to be the father, third, he shall have received the child into Ms family, and fourth, he shall have otherwise treated it as his legitimate child.</p> <p>[2] Id.—Reception of Illegitimate Child Into Family—Test.—It is the attitude of the father toward and his conduct in respect to his illegitimate child, and not the1 character of Ms relationship with the mother, which is the true test in determining whether the child was received into the family of the father.</p> <p>[3] Id.—Clandestine Family of Unmabbied Man—Maintenance op , Illegitimate Child—Insufficient Reception into Family.— Where the unmarried father of an illegitimate child lives in the same community and maintains constant relations with his own legitimate family, and at the same time, under an assumed name, maintains t'he illegitimate child clandestinely in another home with its mother, with whom he lives in illicit relations a great part of his time, he is not receiving the child as his own “into his family,” within the meaning of section 230 of the Civil Code.</p> <p>1. What amounts to recognition within statutes affecting the status or rights of illegitimates, note, L. R. A. 1916E, 659.</p> <p>[4] Id.—Concealment of Existence of Illegitimate Child from Legitimate Relatives—Insufficient Treatment of Child as Legitimate.—Where the father of an illegitimate child has members of his own family living in t'he same community, with whom he is in almost constant association and maintains cordial relations, he does not treat the child as if it were a legitimate child, if he conceals its existence from such members of his real family, never has them visit the child or has the child visit them, or in any other manner acts toward the child with regard to his own legitimate relatives as any father reasonably would if he intended to adopt the child as his own and treat it as his legitimate child.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Ticknor & Carter, L. L. Riccardi, and J. W. Morin for Appellant.</p>

<p>Lij Guardianship op Minors — Bight op Surviving Mother — Evidence—Exception to Bulb.—In this proceeding by the mother of three minors, whose father was dead, to obtain the revocation of an order appointing another person the guardian of their persons and estates and her own appointment as such guardian, the evidence shows the case falls squarely within the exception to the rule, that unless some good reason exists based upon what appears to be the best interests of the children the surviving parent is entitled to he appointed their guardian.</p> <p>[2] Id.—Guardianship op Children—Controlling Considerations.— In resolving the question of the guardianship of children, the court is controlled by what appears to be for their best interest in respect to their temporal and moral welfare, and when a child is of sufficient age to form an intelligent preference, the court „ may consider that preference in determining the question.</p> <p>[3] Parent and Child—Primary Eight op Parents to Custody op Children—Exception.—While primarily the parents of a child have the right, by nature and statutory enactment, to its custody, which right should be freely recognized in the absence of compelling reasons for its disregard, yet whenever conditions are shown to be such, by reason of the mental and moral limitations or delinquency of parents, that to allow the child to continue in their custody would be to endanger its permanent welfare, this right of the parent must give way, its preservation being of less importance than the health, safety, morals, and general welfare of the child.</p> <p>1. Eight of parent to appointment as guardian of miner child, note, 33 L. E. A. (N. S.) 869.</p> <p>3. Eight of parent to custody of child, note, 2 Am. St. Kep. 183.</p>

The applicant for compensation prior to his employment was physically examined and found to have lax inguinal rings predisposing him to hernia, and thereupon was required to execute an agreement releasing his employer from all claims that might arise on account of hernia appearing while in service. During the course of his employment he sustained a left inguinal hernia and upon application for compensation the employer relied upon the release.

<p>APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission.</p> <p>The applicant for compensation prior to his employment was physically examined and found to have lax inguinal rings predisposing him to hernia, and thereupon was required to execute an agreement releasing his employer from all claims that might arise on account of hernia appearing while in service. During the course of his employment he sustained a left inguinal hernia and upon application for compensation the employer relied upon the release.</p>

[8] Id.—Pendency of Appeal—Fending of Abandonment of Former Action Unsupported by Evidence.—In view of section 1049 of the Code of Civil Procedure, which provides that an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for, appeal has passed, unless the judgment is sooner satisfied, a finding that a former action had been abandoned and was not pending in abatement is erroneous where a judgment of…

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

<p>[1] Counties — Power of Supervisors — Employment of Counsel. — Under section 4041 of the Political Code, which declares that a .board of supervisors shall have power under such limitations and restrictions as are prescribed by law to direct and control the prosecution and defense of all suits to which the county is a party, not only is it empowered to employ counsel to assist the district attorney, but it may also employ counsel for the purpose of directing and controlling the prosecution and defense of any suit to which the county is a party. '</p> <p>[2] Id.—Discretion of Supervisors—Review by Courts.—The exercise of the power by a board of supervisors to employ special counsel is a matter of discretion, and is not open to review by the court except perhaps for fraud.</p> <p>[3] Id.'—Substitution of District Attorney for Special Counsel— Mandamus.—The superior court cannot be compelled by a writ of mandate to grant the application of a district attorney to substitute him as attorney of record for his county in certain pending actions in which the county is a party, where the county is represented by an attorney authorized by the board of supervisors, and neither such attorney nor the county consents to or makes application for any change of attorney.</p>

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

PETITION for rehearing application for Writ of Certiorari to review an order of the Industrial Accident Commission. The facts are stated in the opinion of the court.

<p>PETITION for rehearing application for Writ of Certiorari to review an order of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Landlord and Tenant—Agreement Concerning Farming Lands— Construction of Instrument.—In determining whether- a written instrument concerning the letting of farming land was a mere cropping agreement or a lease, the characterization of the instrument as a lease, while not controlling, was some evidence that it was intended to, so operate, and when taken in connection with the fact that it repeatedly treated possession as transferred, reserved right of re-entry to the owner for certain limited purposes only, required the lessee to keep the premises in repair, created a definite term of years, and provided for delivery to the lessor of his share of the crops off the premises, there was' indicated an intention to execute a lease.</p> <p>[2] Id.—Tenant for Years—Bights to Property—Construction of ¡Code.—A tenant for years under section 820 of the Civil Code is entitled to the rights accorded such a tenant under section 819, unless their exercise is forbidden by the lease itself, but so far as additional privileges are concerned, his rights are measured by the terms of the instrument itself.</p> <p>[3] Id.—Bight to Pasture Straw and -Stubble on Demised Grain Lands—Express Authorization to Pasture 'Certain Lands—Absence of Implied Prohibition.—Where a lease dealt with two separate and distinct subjects, first, the letting of the grain land which was included in the demised tract, and second, the letting of the pasture lands which were included- in the tract, the fact that it expressly granted the right to pasture the pasture lands cannot be construed as an implied prohibition of the pasturing of the straw and stubble on the grain lands.</p> <p>[4] Id.—Leaving of Straw and Stubble on Land as Fertilizer— Custom and Usage—Absence of Obligation.—In the absence of an express provision in the lease that the straw and stubble should be left upon the land as a fertilizer, an obligation on the lessee’s part to so use the straw and stubble can be based, if at all, only upon the rules and usages of good husbandry prevailing in the vicinity, and where the pasturing of grain land is a common practice as incidental to farming, no such obligation exists.</p> <p>[5] Id.—Sale of Straw and Stubble — Granting of License to Pasture Sheep—Covenant Against Subletting not Violated.— The covenant against subletting in a lease of • grain lands is not violated by the act of the lessee in giving to the third person to whom he sold the straw and stubble the right to bring sheep on the land to use it.</p> <p>[6] Id. — Action fob Injury to Land — Running and Bedding of Sheep—Cross-complaint fob Injury and Loss of Sheep—Failure to Find on Issue of Damages Erroneous.—In an action by the owner of demised land to recover damages for injury to his property alleged to have been occasioned by the running and bedding of sheep upon the land by defendant under a license from the lessee, it was error to fail to find upon the issue of special damage set up by cross-complaint of injury to the sheep occasioned by their premature removal from the land and reason of the loss occasioned by the premature dismantling of water-troughs, since such damages were capable of ascertainment by proof to a reasonable certainty.</p> <p>[7] Appeal—Notice of—Construction__Notices of appeal are not strictly construed, and an appeal will not be dismissed because of a misdescription of the judgment or order to which it relates, unless it appears that the respondent has been misled by such description.</p> <p>[8] Id.—Sufficiency of Notice—Rule.—If a notice of appeal from part of a judgment specifies the part appealed from with reasonable certainty, so that respondent is not misled, such notice will suffice even though the terms used in indicating the part of the judgment appealed from are defective.</p> <p>[9] Id.—Appeal from Part of Judgment—Sufficiency of Notice.— Where a judgment consists of two parts, namely, first, that plaintiff recover nothing, and, second, that defendant recover a certain amount, a notice of appeal which specifies that the appeal is taken from that part of the final judgment which limits the amount to be recovered by defendant from plaintiff to such amount, is sufficient, and further specifications relating to the part of the judgment which fails to give judgment for the defendant in additional amounts are merely cumulative and may be treated as surplusage.</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>[1] Admiralty Law—Jurisdiction of Federal Courts—Object of Section of Federal Constitution.—By the adoption of article III, section 2, of the federal constitution, which provides that the judicial power of the • federal courts shall extend to all cases of admiralty and maritime jurisdiction, the existing law of the sea was impliedly designated to furnish the rules by which the rights of litigants in maritime eases were to be determined, and the reason therefor was to withdraw the rules and limits of maritime law from the disposal and regulation of the several states, thereby securing that uniformity and consistency at which the constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other and with foreign nations.</p> <p>[2] Id. — Amendment to Judicial Code — Extension of Saving to Suitors’ Clause—Claimants in Maritime Cases Under State Workmen’s Compensation Acts — Determination of Constitutionality not Foreclosed by Decisions.—The numerous decisions upholding the constitutionality of the saving to suitors’ clause of the Judicial Code, which provides that the district courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it, do not determine the constitutionality of the code amendment of October 6, 1917, by which Congress extended the clause to secure to claimants for maritime injuries the rights and remedies under the workmen’s compensation laws of the states, since the original clause saved remedies only, whereas the amendment saves both rights and remedies.</p> <p>[3] Id.—Code Amendment Unconstitutional—Destruction of Uniformity of Maritime Law.—The amendment of the Judicial Code of October 6, 1917, which extended the saving to suitors’ clause to claimants for maritime injuries under the workmen’s compensation laws of the states, destroys the uniformity which article III, section 2, of the constitution was aimed to secure in admiralty cases, since the compensation acts of the various states are widely divergent in their terms and not confined to the regulation of matters of a local nature.</p>

<p>[l] Constitutional Law-—Peaceable Changes in Poem or Government—Right or Organized Association—Display or Flag.—The inhabitants of the United States have both individually and collectively the right to advocate peaceable changes in the constitution, laws or form of government, although such changes may be based upon theories or principles of government antagonistic 'to those which now serve as their basis, and an organization peaceably advocating such changes may adopt a flag or emblem signifying its purpose, and the display or possession of such flag or emblem cannot be made an unlawful act.</p> <p>[2] Municipal Ordinance — Prohibition or Display or Flag or Organization Espousing Principles Antagonistic to Form or Government—Void Enactment.—A municipal ordinance making it unlawful for any person to display or have in his possession any flag or emblem representative of any organization which espouses principles of government antagonistic to the constitution and laws of the United States or to its present form of government is void, since the quality of criminality is attached to acts which under the federal constitution are permissible and within the law.</p>

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

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

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

PROCEEDINGS on Certiorari to annul an award of the Industrial Accident Commission. The facts are stated in the opinion of the court. Griffith R. Williams and Redman & Alexander for Petitioners.

<p>[l] Gas and Electric Corporations—Refusal of Service—Construction of Section 629, Civil Code—Imposition of “Penalty.”— Section 629 of the Civil Code, repealed in 1915, which provided that if a gas or electric light corporation refused or' neglected to supply gas or electricity to the owner or occupant of a building for the space of ten days after written application, it must pay to the applicant the sum of fifty dollars as liquidated damages and five dollars per day as liquidated damages for every day such refusal or neglect continued in force, imposed a “penalty^” for noncompliance, notwithstanding the use of the words “liquidated damages.”</p> <p>[2] Id.—Recovery of Penalties—Statute of Limitation.—An action to recover from a gas or electric corporation the penalties provided by section 629 of the Civil Code for the refusal or neglect to furnish gas or electricity is an action for a penalty or forfeiture imposed by statute within the meaning of subdivision 1 of section 340 of the Code of Civil Procedure, which prescribes a one year period of limitation, and penalties accruing more than a year from the time of the commencement of the action cannot be recovered.</p> <p>[3] Id.—Per Diem Penalty—Statute of Limitations.—Under section 629 of the Civil Code, where there was a continuous default a new and additional penalty was imposed thereby for each day’s refusal or neglect so long as the default continued in force, and the cause of action as to each day accrued with the expiration of that day and was barred only upon the expiration of one year therefrom.</p> <p>[4] Id.—Daily Penalties—Recovery in Single Action.—Where daily penalties are incurred by the failure or neglect of a gas or electric corporation to furnish gas or electricity, while a separate cause of action exists as to each day’s penalty, they may, and perhaps must be regarded, solely for the purpose of recovering them in a single action, as one penalty, recoverable in a single action.</p> <p>[5] Id.—Constitutionality of Section 629, Civil Code.—Section 629 of the Civil C.ode, as it existed prior to its repeal in 1915, cannot properly be held to have been violative of section 11 of article I of the constitution, which provides that all laws of a general nature shall have a uniform operation, on the theory that it discriminated unlawfully between corporations furnishing gas and electricity and natural persons and copartnerships engaged in the same business, in view of section 33, article IV, providing that the legislature shall pass laws for the regulation and limitation of the charges for services performed and commodities furnished by “gas corporations,” and of the well-settled presumption in favor of the validity of legislative action, and of the fact that it is a matter of common knowledge that the business of furnishing gas and electricity for light, etc., is in this state practically always conducted by a corporation.</p> <p>[6] Id.—Action for Recovery of Penalties—Erroneous Nonsuit.— In an action to recover from an electric light corporation penalties for failure to furnish electricity, the granting of a nonsuit on the ground that the action is barred by the provisions of subdivision 1 of section 340 of the Code of -Civil Procedure is erroneous where the plaintiff made a prima facie case for the recovery of the five dollar per diem penalties accruing within a year of the time of the commencement of the action.</p>

<p>[1] Mechanics’ Liens —Stop Notice — Inapplicability to Public Work on Public Highways—Construction op Code.—The clause “wagon road or other structure” contained in section 1183 of the Code of Civil Procedure, which defines the structures and im-' provements upon which liens attach under the mechanic’s lien law. does not include public roads or highways, but has reference to private wagon roads only, and, therefore, the provision of section 1184 as to stop notices in case of public work is not applicable to public work on public highways.</p> <p>[2] Id.—Right to Lien and Stop Notice—Persons Entitied.—The right to a lien under section 1183 of the Code of Civil Procedure and to a stop notice under section 1184 is limited to those persons described in the former section, namely, those who perform work on structures therein described at the request of the owner.</p> <p>[3] ID .—Public Street Work—Remedy op Materialmen.—Neither section 1183 nor section 1184 of the Oode of Civil Procedure applies to work on a public street or highway, and the remedy of materialmen in case of a contract let by the public authorities for street work is upon the personal responsibility of the contractor and his sureties, and in the ease of a private contract upon a public highway under section 1191, which gives a lien on the abutting property.</p> <p>[4] Contract—Escrow op Street Improvement Bonds—Determination op Validity op Claims—Agreement Between Contractor and Assignee—Lien in Favor op Claimants not Created.—An agreement between a street contractor and his assignee providing that two of the bonds issued against the improvement be left in escrow with the county treasurer until the question of the validity of certain claims for supplies be settled created in such claimants no rights in or to the bonds not already existing, and the mere withdrawal of the remainder of the bonds and the release of the county from all obligation thereon by such claimants did not, in the absence of the consent of the assignee, give such claimants any equitable lien thereon as against him.</p>

<p>[1] Statutes of Limitation—Trespass upon Beal Property.—The three years’ period of limitation for an action for trespass upon real property provided hy subdivision 2 of section 338 of the Code of Civil Procedure applies only where there is some entry upon the premises of the plaintiff or direct or intentional injury thereto, amounting to a trespass thereon, and does not apply to actions in which the injury caused to the plaintiff’s real property is consequential only and arises from some lawful act of the defendant not done upon the plaintiff’s property, but committed elsewhere, and causing, as a consequence thereof, some injury to such property not arising from an entry thereon by the defendant or his agencies, since subdivision 1 of section 339, providing a two year limitation, is applicable to such class of actions.</p> <p>[2] Action for Injury to Real Property — Boundary by City Street—Pleading—Presumption as to Ownership.—In an action for damages for injury to real property fronting on a city street, it must be presumed, in view of section 831 of the Civil Code, that the plaintiff was the owner of the property to the center of the street, where the complaint showed that the property was bounded by the street, and nothing appeared in the record to rebut the presumption.</p> <p>[3] Public Highway—Basement—Trespass for Interference.—A public highway is a mere easement and the owner of the soil over which it passes has an action of trespass against any person who interferes with it for any purpose but to use or repair it.</p> <p>3. Rights, obligations, and remedies of owner of land abutting on highway, note, 101 Am. St. Rep. 103.</p> <p>[4] Municipal Corporations—Construction op Tunnel—Damage to Private Property—Presumption as to Authority.—In an action ■by the owner of land fronting on a city street against the city for damages resulting from the caving of the land alleged to be due to negligence in the construction of a tunnel beneath the street, it must he assumed, in the absence of a showing to the contrary, that the city had authority to construct the tunnel.</p> <p>[5] Id.—Duty op City as to Land Owners—Applicability op Code Section as to Eights op Coterminous Owners.—A city in the construction of a tunnel beneath a street is under obligation to use ordinary care and skill and take reasonable precautions to sustain the land of a property owner abutting on the street, the rule declared by section 832 of the Civil Code as to the rights of coterminous owners to lateral and subjacent support Being applicable.</p> <p>[6] Action for Damages — Construction op Tunnel — Pleading — Statute op Limitation Applicable.—A complaint in an action by the owner of land fronting on a city street against the city for damages resulting from the caving of the land alleged to he due to negligence in the construction of a tunnel beneath the street, states a cause of action for trespass, where it alleges that the defendants failed to take such precautions or to use such care, and as a result thereof the earth above caved into the tunnel and caused the settling and cracking of the surface of the earth, and the action is not barred by the two year limitation, but comes within the three year provision.</p> <p>5. Nature of right to lateral and subjacent support, note, 68 L. E. A. 683.</p>

<p>[1] Appeal—Findings—Conflict of Evidence.—Where the testimony in the trial court is substantially conflicting, .the appellate court cannot interfere with the findings of fact by that court.</p> <p>[2] Action upon Promissory Notes—Nature of Transaction—Findings Supported by Evidence.—In this action upon two promissory notes, the finding that the transaction was a loan and not a conditional gift is sustained by the evidence.</p>

<p>[1] Estates of Deceased Persons—Will—Undue Influence—Relationship of Mother and Daughter.—Undue influence in the execution of a will by a mother in favor of her daughter is not to be presumed from the mere existence of the relationship between them.</p> <p>[2] Id.—Will Contest—Undue Influence—Evidence—Proper Non-suit.—In a will contest on the ground of undue influence, a non-suit is proper where it is affirmatively shown that no undue influence was exercised and that the testatrix was acting under independent legal advice.</p> <p>1. Undue influence as affecting the validity of wills, note, 31 Am. St. Rep. 670.</p> <p>Presumption of undue influence, note, 21 Am St. Rep. 94.</p> <p>Burden of proof as to undue influence, notes, 17 L. R. A. 494; 36 L. R. A. 724, 733.</p> <p>[3] Id.—Evidence—Friendly Relation Between Testatrix and Disinherited -Children.—In a will, contest, the exclusion of certain evidence bearing upon the friendly relation between the testatrix and her disinherited children is not prejudicial to .the contestant where the children testified that the relations were friendly.</p> <p>[4] Id.—Weakness op Mind op Testatrix—Conclusions op Witnesses.—In a will contest the weakness of the mind of the testatrix may be shown upon the issue of undue influence, but it cannot be shown by questions calling for conclusions of the witnesses.</p>

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

<p>[X] Election or Remedies—E'stoppel.—A party having two inconsistent, concurrent remedies may not pursue both, but must choose between them and, after having elected to proceed upon one, is thereby bound and estopped from invoking the other.</p> <p>1. Binding force of election to pursue one of two inconsistent, concurrent remedies, note, 10' Am. St. Rep. 487.</p> <p>[2] Id.—Mistake in Election—Effect of.—Where a party makes a mistake in election of remedies, he is not estopped by his abortive election from subsequently resorting to and pursuing a remedy to which he was really entitled.</p> <p>[3] Id.—Foundation of Theory of Election.—The principle of election is founded upon the theory that a party should not be allowed . to occupy inconsistent positions.</p> <p>[4] Id.—Action for Rescission of Contract—Fraud—Judgment of Nonsuit—Subsequent Action for Damages—Right of Plaintiff.—The bringing of an action for the rescission of a contract for the exchange of properties on the ground of fraudulent representations in which a judgment of nonsuit was rendered because of the failure of the plaintiff to tender defendant a deed prior to bringing the action is not a bar to a subsequent action for damages for fraudulent representations, since the effect of the judgment was merely to leave the parties in the same relative position as before the action was commenced, namely, with a subsisting contract between them.</p> <p>[5] Action for Fraud—Exchange of Properties—Evidence—Value. In an action for damages for fraudulent representations made by defendant as to the value of certain real property exchanged for a stock of merchandise belonging to the plaintiff, evidence of the value of the properties was admissible not only under the issue of fraud for the purpose of showing the circumstances surrounding and attending the making of the contract, but was relevant and material to the issue raised by the answer as to the true value of plaintiff’s stock of merchandise.</p> <p>[6] Id.—Value of Properties at Other Times—Discretion.—In such an action, the admission of evidence of value at times shortly prior or subsequent to the date of the contract of exchange is largely within the discretion of the trial court.</p> <p>[7] Principal and Agent—Interest Adverse to Principal—Imputed Knowledge—Where an agent is interested in the result of a transaction adversely to the interest of his principal, the rule of imputed knowledge on the part of the principal no longer obtains.</p> <p>[8] Id.—Acceptances of Benefits of Representations of Agent— Liability of Principal.—A principal who accepts the advantages obtained by the representations and concealments of his agent is bound thereby.</p> <p>[9] Fraud—Expression of Opinion—When Affirmation of Fact.— When a statement concerning a subject matter of a transaction, which might otherwise be only an expression of opinion, is affirmed as an existing fact material to the transaction and reasonably induces the other party to consider and rely upon it as a fact, the statement then becomes an affirmation of fact within the meaning of the general rule as to fraudulent representations.</p> <p>2. Effect of choosing by mistake, remedy not legally available, notes, 5 Ann. Cas. 962; 8 L. R. A. (N. S.) 144; 22 L. R. A. (N. S.) 1153.</p> <p>[10] Id.'—Evidence of Fraud.—While fraud must be clearly proved, direct evidence is not necessary, but the indirect evidence and the inference to be drawn from the proved facts must be so convincing as to satisfy the court that fraud was designed and accomplished.</p> <p>[11] Id.—Representations of Existing Fact—Sufficiency of Evidence.—In this action for damages for fraudulent representations, it cannot be said that the evidence was insufficient to support the finding that the representations were of an existing fact.</p> <p>[12] Id.—Evidence—Statements of Defendant—Refusal to Strike Out Harmless Error.—In such action, refusal to strike out evidence of statements made by defendant to plaintiff’s daughter when the contract was being drafted on the ground of absence of proof that plaintiff heard them was harmless where there was a substantial conflict in the evidence as to whether they were heard by the plaintiff.</p> <p>[13] Id.—Dismissal of Action—Proper Refusal.—There was no error in refusing to dismiss such action on the ground that defendant attempted to rescind prior to suit, where it was shown that he had sold the stock of merchandise and was not able to restore plaintiff to his original position.</p>

<p>[1] Contract—Furnishing Water for Irrigation of Bice Crop—Evidence—Effect of Delay.—In actions by a canal company to ,£ore-close liens to secure promissory notes given by a rice company in payment for water, wherein the defendant filed counterclaims for damages alleged to have been suffered because of the partial failure of a rice crop alleged to be due to the delay of the plaintiff in furnishing irrigating water, testimony of witnesses as to the effect upon a rice crop of delay in furnishing water was clearly admissible for the purpose of showing that such delay was the proximate cause of defendant’s loss.</p> <p>[2] Appeal—Instructions—Record.—It is important for the record to show whether or not instructions complained of are given at the request of the party complaining, and this should be made clear by the judge, for, in default of such explanation, a party complaining of such an instruction may find his objection precluded by the rule which favors regularity of the proceedings in the trial court.</p> <p>[3] Action for Water Furnished—Counterclaim for Damages to Crop—Instruction—Assumption of Breach—Lack of Prejudice.—In actions by a canal company to foreclose Hens to secure notes given by a rice company in payment for water, wherein the defendant set up a counterclaim for damages to the crop from delay in furnishing the water, an assumption in an instruction that there had been in fact a breach of the contract by the plaintiff was not misleading where the opening statement of counsel, the course of the evidence, other instructions, and, doubtless, the argument of counsel before the jury made it apparent that the main contention in the case was as to whether there had been a breach.</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>[1] Contract—Drilling Well—Action for Breach—Evidence.—In an action for damages on account of the alleged failure of the defendant to perform in a workmanlike manner a contract for the drilling of a water well, it was not enough to meet the burden of proof resting upon the plaintiffs to show merely that after a certain lapse of time following the completion of defendant’s work the well was not in a serviceable condition, but it was essential that plaintiffs should show this condition to be the resplt of a breach by the defendant of the terms of his contract.</p> <p>[2] Id.—Cause of Defects—Pleading—Finding.—Where in such an action the issue - was joined by the pleadings as to whether there . were any crooks or bends in the well casing, and if there were, whether they were caused by an unworkmanlike construction of the well, a finding that the manner in which the defendant filled and tamped the earth in digging the well “did not bring about or cause the bends or crooks in the casing of said well” was directed clearly to such issue.</p> <p>[3] Id.—Careless Acts of Plaintiff—Finding Immaterial.—A finding in such an action that the careless and reckless acts of plaintiffs in installing and removing the pump were the sole cause of the bends and twists in the casing of the well was not' essential to .the judgment, and therefore immaterial, whether within the issues presented by the pleadings or not.</p> <p>£4] Id.—Responsibility for Damage—Conflict of Evidence—Sending—Appeal.—In such an action, the finding on thet issue of responsibility for the damage will not be disturbed on appeal where made upon conflicting evidence.</p>

<p>PROCEEDING in Mandamus to compel the filing of a referendum petition relating to the ratification of the eighteenth amendment to the constitution of the United States.</p> <p>The facts are stated in the opinion of the court.</p> <p>Theodore A. Bell and Sloss, Ackerman & Bradley for Petitioner.</p> <p>A. J. Hill, County Counsel, Robert B. Murphey, Assistant County Counsel, U. S. Webb, Attorney-General, and Robert W. Harrison, Chief Deputy Attorney-General, for Respondent.</p>

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

<p>[1] Contract—Protection op Employers—Contribution to Common Fund—Payment by Note—Effect op Provision.—Where a contract entered into between several employers for protection against the demands of their employees required each of them to pay into a common fund a certain amount or give his promissory note therefor, and provided, in the event of the termination of the contract, the fund be distributed proportionately among the parties who had kept the covenants, the mere recital in the contract that contribution might be made by note did not have the effect in an action on the notes to prevent an investigation into the preliminary matters touching the original transaction out of which the notes emanated.</p> <p>[2] Id.—Damages for Breach-—Use op Word “Penalty.”—While the terms by which the parties designate the sum decided upon are to be considered in ascertaining the purpose and intent in stipulating the amount to be paid in ease of a breach, such terms are by no means controlling, and, even though the term “penalty” is used, it must be ascertained- from a consideration of the nature of the agreement whether there was an actual intent to prescribe a penalty, that is, an intent to determine and define the liability in the case of a breach of the contract without any reference to the actual damage likely to be sustained.</p> <p>[3] Id.—Construction of -Contract—Liquidated Damages.—Under a contract entered into between a number of structural steel and iron manufacturing corporations for their protection against the demands of their employees, which required each to contribute a certain amount to a common fund by the payment of cash or the giving of a note, and which provided for the distribution of the fund in event of the termination of the contract among those who had not breached the contract in proportion of their gross annual business, the sums represented by the notes constituted liquidated damages and not penalties, although the contract used the word “penalty.”</p> <p>[4] Id. — Breach op Contract — Recovery op Amount Specified — Pleading and Evidence.—In an action to recover the amount fixed in a contract as damages for its breach, it is necessary to allege and prove that it would be impracticable or extremely difficult to fix the actual damage.</p> <p>2. Stipulated forfeiture for breach of contract as penalty or liquidated damages, notes, 108 Am St. Rep. 48; 1 Ann. Cas. 244; 10 Ann. Cas. 225; Ann. Cas. 1912C, 1021; Ann. Cas. 1917D, 739; 38 L. R. A. (N. S.) 847; L. R. A. 1917E, 372.</p> <p>[5] Id. — Contract Between Corporations — Appointment of Executive Committee to Represent—Valid Provision.—In a contract entered into between several steel and iron manufacturing corporations for their protection against the demands of their employees, provision for the appointment of an executive committee to represent them in certain negotiations was not an attempt to delegate discretionary corporate functions.</p> <p>[6] Id.—Breach of Contract—Relief—Equity.—Where a contract provided for the payment by each party of a certain sum into a . common fund, either by cash or by note, to he distributed on breach to the other parties as damages, an action on the notes and for distribution of the money among those entitled in the proportions provided by the contract is not an action for the specific performance of a contract for the payment of money, but is within the jurisdiction of a court of equity.</p>

<p>Ill Deed — Reservation of Right of Way-—Uncertainty of Description—Right of Subsequent Delimitation.—A clause in a deed saving and excepting therefrom a strip of land for a road to be built at some future time is not void for uncertainty of description when construed as a reservation, since under such circumstances the owner of the servient estate may in the first instance designate a reasonable way, and if he fails to do so, the owner of the dominant estate may designate it.</p> <p>[2] Id.—Construction of Clause in Deed—Uncertainty in Description—Reservation and not Exception.—A clause in a deed saving and excepting therefrom a strip of land for a road to be built at some future time, .which is so uncertain in description as to be void when construed as an exception of the fee of the strip, but which is valid when construed as an easement, will be given the latter construction in view of section 1069 of the Civil Code, which provides an exception is construed most strongly in favor of the grantor.</p> <p>[3] Id.—Exception of Strip for Future Road—Wagon Road.—A clause in a deed to a quarter-section of land “saving and excepting therefrom a strip of land forty feet wide along the banks of the east fork of Austin Creek all the way across the said land, for a road to be built at some future time,” is to be construed as reserving a right of way for a wagon road and not for a private railroad.</p> <p>[4] Id.—Reservations and Exceptions—Construction.—While the difference between reservations and exceptions is well defined, the use of the word “excepting” or “reserving” is not alone determinative of the question, and the effort of the court should be to construe the whole conveyance for the purpose of ascertaining the real intention of the parties and give it effect accordingly, regardless of the use of the appropriate terms “reserving” or “excepting.”</p> <p>[5] Id.—Reservation of Easement—Construction of Deed.—In a conveyance of a quarter-section of land containing the clause “saving and excepting therefrom a strip of land forty feet wide along the banks of the east fork of Austin Creek all the way across the said land, for a road to be built at some future time,” the phrase “for a road” modifies the whole clause and shows the intention of the parties to have been to reserve a right of way for a road rather than to except the fee to the strip from the operation of the deed.</p> <p>4. General distinctions between exception and reservation of easements, notes, 18 Ann. Cas. 799; 20 L. R. A. 631.</p>

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

APPLICATION to insert statement in bill of exceptions of signing of findings without reading or personal knowledge of contents. The facts are stated in the opinion of the court.

<p>[1] Negligence—“Kicking” op Railroad Oar Across City Street— Injury to Wagon Driver.—In. an action for personal injuries sustained by the driver of a wagon at a city street crossing from being struck by a freight-ear, where there was evidence showing that the ear had been “kicked” across the street, that is, given a strong push by the locomotive and then uncoupled and allowed to proceed under the impetus so given it, with no one on the car to stop or control it, the jury was justified in concluding that the conduct of defendants was negligent.</p> <p>1. Negligence of railroad company in respect to flying-switches or detached cars moving by their own momentum, notes, 10 Ann. Cas. 15; Ann. Cas. 1912D, 342; Ann. Cas. 1915B, 608; 18 L. R. A 63; L. R. A. 19160, 1033.</p> <p>[2] Id.—Kicking of Cab Uncontrolled Across Street—Inference of Negligence.—Kicking a car uncontrolled across a public and traveled street in a large city at least permit? a justifiable inference of negligence, if nothing more.</p> <p>[3] Id.—Contributory Negligence—Insufficiency of Evidence.—In such action, it cannot be said that the jury was not justified in finding impliedly that plaintiff was not guilty of contributory negligence in attempting to' cross ahead of the car, where there was a decided conflict in the evidence as to any warning being given him by defendant and plaintiff directly testified that he approached the crossing slowly and saw the ear apparently standing still.</p>

<p>[1] Workmen’s Compensation Act—Death of Automobile Driver— Violation of Instructions in Returning from Business Errand—Nonliability of Employer.—An award of compensation for injuries resulting in the death of the driver of an automobile from the overturning of the machine while returning from a business errand for his employer is not justified on the theory that at the time of the accident he was discharging a duty incident to his employment, where in returning to his employer’s place of business he, in violation of instructions, departed from the usual and direct road and went several miles out of his proper course, where the accident occurred.</p> <p>[2] Id.—Injury in Course of Employment — Burden of Proof. ■— Under the Workmen’s Compensation Act, the burden of proving that the injury was received in the course of employment is upon the employee.</p> <p>1. Disobedience precluding recovery under Workmen’s Compensation Act, notes, Ann. Cas. 1913C, 17; 4 A. L. R. 116.</p>

<p>[1] Mortgage—Want of Record Title in Mortgagor—Recordation not Constructive Notice to Subsequent Purchasers.—Where the owner of certain real property conveyed it to a corporation by a deed, which was never recorded and apparently lost, for bonds of the corporation whose payment was secured by a previously executed and recorded mortgage on the property, the mortgage, although recorded, did not come into the record chain of title, and constructive notice of it was not given by its record to subsequent purchasers, and the original owner remained as the record owner of the property free of any encumbrance.</p> <p>[2] Id.—Quitclaim Deed—Title Subject to Mortgage—Validity of Agreement—Subsequent Purchasers With Notice.—Where the owner of certain real property conveyed it to a corporation by a deed, which was never recorded and apparently lost, and thereafter such ,owner conveyed it by a quitclaim deed to another corporation of which the first corporation was merely a subsidiary, upon the understanding that the record title obtained by the quitclaim deed was to be subject to a mortgage on the property executed by the first corporation to secure the payment of bonds taken by the owner in payment for the property, the understanding was effective as between the parties and the mortgage a valid lien as between such parties and subsequent purchasers with notice.</p> <p>[3] Id.—Action for Foreclosure—Lis Pendens—Purchase Pendente Lite from Holder of Record Title—Constructive Notice of Mortgage.—Where in an action by a bondholder for the foreclosure of such mortgage the original owner and the corporation having the record title were made party defendants and the owner ■ in her cross-complaint alleged that such corporation claimed some interest in the property, but that it was subject and subordinate to the mortgage, and a Us pendens was duly recorded naming such corporation as one against whom relief was sought, the purchaser from such corporation during the action was charged with 'constructive notice of the mortgage and took subject thereto.</p> <p>[4] Id.—Adverse Title—Trial in Foreclosure Suit.—While it is the rule that adverse titles may not be litigated in a foreclosure suit, yet the question as to whether the title of a defendant is in fact adverse or is one subject to the mortgage, and therefore properly subject to foreclosure, is a question which is properly presentable in the foreclosure suit and may be there tried and determined.</p> <p>1. Recprd of instrument out of line of title as constructive notice, note, Aim. Cas. 1917E, 486.</p> <p>3. Who is purchaser pendente lite, note, Anti. Cas. 1918C, 53.</p> <p>[5] Id.—Adverse Claim—Adjudication in Foreclosure Suit—When Permissible.—While it is the rule that adverse titles may not be litigated in a foreclosure suit, yet if the parties to such an action voluntarily proceed to litigate the question of whether the title or interest of the defendant is adverse, and such question is determined by the decree, the determination is a valid adjudication.</p> <p>[6] Id. — Determination op Interest as Subject to Mortgage— Binding Adjudication.—Where the owner of certain real property conveyed it by a deed to a corporation and the deed was never recorded, and thereafter the owner quitclaimed to another corporation of which the first was merely a subsidiary, upon the understanding that the title conveyed by the quitclaim deed should be subject to a mortgage executed by the first corporation, which was recorded, and, in an action for the foreclosure, the second corporation by its answer specifically alleged the execution of the quitclaim deed and claimed title, and the court declared that the interest of the second corporation was subject to the mortgage, such declaration was a binding adjudication.</p> <p>[7] Id.—Amendment op Pleading—New Cause op Action—Effect upon Previous Purchaser Pendente Lite.—Where a new cause of action is injected into a suit by the plaintiff by amendment or otherwise, a previous purchaser pendente lite from a defendant of the subject matter of the suit is not bound by the judgment upon such new cause of action unless he is made a party.</p> <p>[8] Id.—Foreclosure—Amendment op Answer—Issue of Adverse Claim—Determination Binding upon Prior Purchaser Pendente Lite.—Where, in an action for the foreclosure of a mortgage, ■ a defendant by amendment of its answer raised the issue as to whether its interest was subject to the mortgage, and the court determined the matter, a purchaser pendente lite from such defendant was bound by the decree, since the amendment did not inject a new cause of action but merely raised a new issue, material to the original cause of action.</p> <p>[9] Id.—Purchasers Pendente Lite—Adjudication op Issues Raised by Subsequent Amendment.—A purchaser pendente lite is bound by the result of the suit, although that result may be based upon issues raised subsequently to his purchase, provided the matter adjudicated be the cause of action subject to which he bought and the issues be material and proper to that .cause of action.</p> <p>6. Remedy of one improperly omitted as party to foreclosure proceedings, note, 4 Ann. Cas. 848.</p> <p>[10] Title by Prescription — Character of Possession. — Possession alone, no matter how exclusive and complete, is not sufficient to create a title by prescription.</p> <p>[11] Id.—Possession Under Purchase Pendente Lite—Holding not Adverse to Mortgagee.—Where during the pendency of an action for the foreclosure of a mortgage the property is purchased from a defendant who holds it subject to the mortgage and the purchaser takes possession under and by virtue of such purchase, the possession is not adverse to the mortgagee and the statute of limitations does not' run.</p> <p>[12] Id.—Foreclosure of Property of Public Utility Gas Company—Recovery of Mesne Profits Independent of Possession—Right of Purchaser.—The purchaser at a foreclosure sale of real property belonging to a public utility gas company and used by it as a part of its gas plant may recover the mesne profits accruing subsequent to the sale, although possession may not be recovered by reason of it being property appropriated to a public use.</p> <p>[13] Id.—Action to Recover Mesne Profits—Judgment upon Findings—Right of Plaintiff.—In this action by the purchaser at a foreclosure sale against the purchaser pendente lite to recover mesne profits accruing subsequent to the sale, it.is held the plaintiff was entitled to judgment upon the findings, notwithstanding the finding that defendant had been in the exclusive adverse possession and that the plaintiff was not the owner of the property.</p> <p>[14] Id.—■ Adjudication of Priority of Lien of Mortgage — Construction of Finding.—In an action by a purchaser at a foreclosure sale to recover mesne profits, a finding that the foreclosure decree “adjudged” that the lien of the mortgage was prior and superior to the interest of the company from whom the defendant . purchased pendente lite was a finding that there had been a judicial determination of the superiority of the lien.</p> <p>[15] Id. — Status of Purchaser from Defendant Pending Foreclosure Action.—Where a corporation having no title to mortgaged property was in the possession thereof at the time of the filing in the foreclosure suit of the cross-complaint upon which the decree of foreclosure was subsequently based, and such corporation was made a party defendant by the cross-complaint and a lis pendens was recorded naming it as such, and the decree adjudged that its interest was subject to the mortgage, and foreclosed, and pending suit it conveyed the property to one who in turn conveyed it to another corporation, who took possession, such latter corporation was a purchaser pendente lite, and its possession was not adverse to the mortgagee. (On denial of peti- " tion foi; rehearing.)</p> <p>[16] Id.—Improvements Made by Purchaser Pendente Lite—Immateriality in Action for Mesne Profits.—In an action by the purchaser at a foreclosure sale against the purchaser pendente lite to recover mesne profits, the fact that the property was improved by the defendant is immaterial, for if such improvements were included in the decree, and should not have been, the defendant’s remedy was in the foreclosure proceedings. (On denial of petition for rehearing.)</p>

<p>[1] Estates of Deceased Persons—Letters of Administration— Eight of Surviving Husband.—A surviving husband is entitled to letters of administration on his wife’s estate in preference to . anyone else, unless incompetent on some statutory ground.</p> <p>[2] Id.—Want of Understanding of Surviving Husband—Appeal— Affirmance of Einding—Eule.—Where on sufficient evidence a surviving husband is found to be incompetent to administer on his wife’s estate for a want of understanding, the finding cannot be overturned on appeal even though in the opinion of the appellate tribunal. it be contrary to the preponderance of the evidence.</p> <p>[3] Id.—Presumption of Mental Capacity—Effect of.—The prima facie presumption of mental capacity does not change the rule that if the trial tribunal, court or jury finds that the fact Is proven, such finding cannot be disturbed on appeal unless there is no evidence to support it, or it is plainly contrary to the' evidence, but merely operates to throw on the party claiming that mental capacity is lacking the burden of proving that fact.</p> <p>[4] Id. — Want of Understanding — Finding Supported by Evidence.—On this appeal by a surviving husband from an order appointing an administratrix with the will annexed of the estate of his wife, it is held the finding of want of understanding of the appellant, is sustained by the evidence.</p>

<p>[1] Estates of Deceased Persons—Betters of Administration— Daughter op Predeceased Spouse of Testatrix—Preference to Public Administrator.—Under sections 1310 and 1386, subdivision 8, of the Civil Code, and sections 1350a and 1365 of the Code of Civil Procedure, the daughter of the predeceased husband of a testatrix, who by her will gave her property to her husband, is entitled to letters of administration upon her estate in preference to the public administrator, where a part of the property was received by her under the will of her deceased husband and they were related to each other by consanguinity.</p> <p>[2] Id. — Common Property of Deceased Spouses — Sufficiency of Evidence.—In a proceeding by a daughter of the predeceased husband of a testatrix for letters of administration with the will annexed upon her estate, it was sufficiently shown that part of her estate was common property of the testatrix and her deceased husband, where it appeared that she received an undivided one-half interest of his estate under the decree of distribution, died within nine months thereafter, and the daughter in her petition for letters set out much of the identical property as part of her estate.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a Writ of Assistance under a decree of foreclosure and sale. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

PROCEEDING for disbarment of an attorney at law. Action deferred pending appeal. The facts are stated in the opinion of the court.

<p>[1] Street Law — County Highway Improvement Proceedings — Adoption of Plans and Profiles not Jurisdictional Prerequisite.—In proceedings under the act of 1907 (Stats. 1907, p. 666), for the improvement of county highways, the adoption of plans and profiles before entering into any contract for the furnishing of materials is not a jurisdictional prerequisite, since the money is already in the treasury, and so far as persons who perform work or furnish material are concerned, it merely represents a fund properly applicable to the expenses of improving the highway.</p> <p>[2] Id.—Purchase of Cement—Advertisement for Bids Essential. Under the act of 1907 providing for the construction of county highways, assuming that the board of supervisors are authorized to treat the furnishing of cement as a separate and distinct contract, it is essential that the purchase should be after advertisement and from the lowest responsible bidder.</p> <p>[3] Id.—Appointment and Powers of County Purchasing Agent— Purchase of Supplies Without Advertising—Statutory Requirements of County Highway Act not Affected.—The statute of 1907 requiring the purchase of supplies from the lowest responsible bidder after advertisement was not .modified by the addition of 1913 to section 4041 of the Political Code of the subdivisions authorizing the employment of a county purchasing agent and giving him power to purchase supplies without advertising for bids, since the phrase “all other supplies,” contained in section 4048, is limited by the context to ordinary county supplies, and is not broad enough to cover cement furnished by the county for highway construction.</p> <p>[4] Id.—Void Contract for Cement — Failure to Advertise for Bids.—A contract made by a county purchasing agent for the purchase of more than one thousand dollars’ worth of cement to be furnished to the contractor by the county for county highway construction, is void, and the contractor cannot recover thereon, where made without having first advertised for bids.</p>

<p>[1] Criminal Law—Murder—Appeal—Truth of Evidence.—On appeal from a judgment of conviction of murder, the question of the truth of the evidence implicating the defendant is conclusively determined for all the purposes of the appeal by the verdict of the jury and the action of the trial court in denying the motion for a new trial.</p> <p>[2] Id.-—Identification of Defendant—Instructions.—In a prosecution for murder wherein the sole question in dispute was whether the defendant was the man who did the killing, the refusal to give requested instructions directed particularly to the question of identification and to the testimony of the witnesses who swore that he was the guilty party, was not prejudicial error, where the jury was repeatedly instructed that they could . not convict the defendant unless satisfied^ beyond all reasonable doubt by the evidence of his guilt.</p> <p>[3] Id.—Evidence — Accusatory Statements—'Silence of Defendant.-—In the prosecution of a Chinese for the murder of a fellow-countryman, statements in the English language made by the deceased and his wife in the presence and hearing of the defendant when under arrest shortly after the shooting accusing him of the commission of the crime were admissible solely for the purpose of_ showing an admission on his part of the truth of the charge, where the defendant made no reply thereto and it appeared that he had sufficient understanding of the English language to appreciate the nature of the accusations.</p> <p>[4] Id.—Misconduct of Counsel—Improper Statement of District Attorney During Cross-examination of Witness—Instruction— Lack of Prejudice.-—In such prosecution, the conduct of the district attorney in stating substantially to the court when objection was made to a question asked one of defendant's witnesses as to whether he was a member of a certain tong, that- he would attempt to show by cross-examination that the witness was a member of the tong, that the deceased was ordered killed by such tong, and the witness delegated by the tong to testify for the defendant, was improper, but without prejudice, where the jury was instructed that statements of counsel did not constitute evidence.</p> <p>[5] Id.—Appeal—Misconduct of Counsel—Essentials.—Where any possible prejudicial effect of misconduct of counsel would be obviated by a proper admonitory instruction, formal assignment as misconduct and request for an instruction, are essential to a consideration of the matter in an appellate court.</p>

<p>[1] Habeas Corpus—Unlawful Restraint—Insufficiency of Petition.—An application for a writ of habeas corpus to secure the release of the petitioner from custody under a commitment of contempt based upon the legal insufficiency of the process in the contempt proceeding, must be denied where it is not alleged that such process constitutes the only or sole ground of his restraint, and it is fairly inferable from the allegations of the petition that he is lawfully in custody under a warrant based upon an indictment charging him with the commission of a public offense.</p>

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

PROCEEDINGS on Certiorari to review an order of the Industrial Accident Commission awarding compensation. The facts are stated in the opinion of the court.

<p>[1] Juvenile Court Act—Remanding op Person Under Eighteen Years of Age for Examination or Trial—Power of Juvenile Court.—The superior court, sitting as a juvenile court, has the power under the juvenile court law, upon the hearing of a case which had been under examination before a magistrate upon a charge of crime and had been certified to the juvenile court because of the age of the defendant, to remand such defendant to the magistrate for examination or trial, regardless of age, if the court shall conclude that such person is not a fit subject for further consideration under the act.</p> <p>[2] Id.—Certification of Cause to Juvenile Court—Attachment of Copy of Complaint—Requirement Directory.—The requirement of section 6 of the juvenile court law that the committing magistrate, after finding that a person charged with crime is under eighteen years of age, shall attach to his certificate a certified copy of the original deposition or complaint filed before him, is merely directory, and omission to comply therewith does not deprive the court of jurisdiction.</p> <p>[3] Id.—Appeal—Presentation of Objection — Record. — Objection that in certifying the cause to the juvenile court, after finding that the person charged was under eighteen years of age, the magistrate failed to attach to the certificate a certified copy of the original deposition or complaint filed before him, should be made part of the record, either by a bill of exceptions or by some special order of court to be reviewable on appeal.</p> <p>[4] Id.—Failure to Move to Set Aside Information—Waiver of Objection.—Objection that in certifying the cause to the juvenile court, after finding that the person charged was under eighteen years of age, the magistrate failed to attach to the certificate a certified copy of the original deposition or complaint filed before him, is waived where no motion was made to set aside the information or to arrest the proceedings upon that ground.</p> <p>[5] Criminal Law—Bias of Jurors—Opinions from Beading Newspapers—Challenges When Properly Overruled.—Challenges of . jurors for actual bias for opinions formed from reading newspapers are properly overruled under section 1076 of the Penal Code in view of testimony that such opinions could be disregarded and a verdict rendered solely on the evidence.</p> <p>[6] Id.—Following of Instruction by Jurors—Proper Question by District Attorney.—A question asked by the district attorney during the examination of jurors, that supposing they were instructed if they should find the killing was done in an attempt to perpetrate a felony, that they would have no option in the matter, but that they should find the defendant guilty of murder in the first degree, would they follow such instruction, is not objectionable as failing to advise them that the guilt of the defendant must be shown to a moral certainty and beyond a reasonable doubt, where the district attorney in his questions repeatedly stated that the court would instruct them that a conviction could not be had unless they were satisfied of guilt beyond reasonable doubt, and the court so instructed them.</p> <p>[7] Id.—Murder—Statements of Deceased Concerning Assault— Erroneous Admission Without Prejudice—Proof by Other Uncontradicted Evidence.—In a prosecution for murder wherein the evidence showed that the defendant hired the deceased and his automobile for a trip, and while on the trip, the defendant hit the deceased on the head with a hammer, and then took his money and automobile away from him, the erroneous admission of testimony of statements made by the deceased after the assault and before his death, concerning the crime,_ was not prejudicial, where the same facts were established by other uncontradicted evidence including the confession of the defendant.</p> <p>[8] Id.—Locks of Matted Hair Found in Stolen Automobile of Deceased—Proper Evidence.—In such prosecution, the admission in evidence of locks of matted hair adhering to something which appeared to be parts of a human scalp found in the automobile where defendant abandoned it, and shown to be of the same color as the hair of the deceased, was proper, without further evidence showing the hair to be in the same condition as when taken from the automobile.</p> <p>5. Opinions gained from newspapers as disqualifying jurors in criminal case, note, 35 L. B. A. (N. S.) 988.</p> <p>[9] Id.—Instruction—Duty on Jurors.—An instruction that unless the jury did their duty, laws might as well be stricken from statute books is not to be construed as a direction that they should find the defendant guilty, and that they would be neglectful of '• their duty if they did not do so, where as part of the same instruction the jury was advised that both the public and the defendant had the right to demand and expect a careful and dispassionate consideration of the law and the evidence and the rendition of a verdict just to both sides.</p>

<p>APPEAL from an order of the Superior Court of ■ Los Angeles County fixing amount of inheritance tax. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Robert A. Waring, John W. Carrigan and Edwin H. Pennock for Appellant.</p> <p>O’Melveny, Millikin & Tuller and A. Lincoln Rowland for Respondents.</p>

<p>[1] Mortgage — Subsequent Improvements — Partition Decree — Change of Boundaries—Substitution op Security.—Where the owners of certain unimproved lots designated by number in a block of a subdivision, mortgaged the property to secure money to build dwellings thereon, which were built,'1 and thereafter a partition suit was brought to determine the boundaries of the lots and blocks in the subdivision, and the owners and the mortgagee were among the parties plaintiff, and by the decree the boundaries of the lots were so changed that the houses were not on the lots of which the mortgagors were declared to be the owners, the effect of the decree was to substitute such other lots as security, and the houses were removed .from the lien of the mortgage.</p> <p>[2] Id.—Inclusion op Improvements by Mistake—Omission prom Foreclosure and Sale—Release prom Mortgage.—Where the owner of a mortgage which covered certain realty and certain houses which were not a part of such realty brought suit to foreclose the mortgage and obtained a decree foreclosing on the realty alone, and bought the realty in for the full amount due, the houses, by reason of their omission from foreclosure and sale, were released from the mortgage.</p> <p>[3] Id.—Foreclosure—Omission op Mortgaged Parcel—Discharge prom Lien.—Where different pieces of realty are subject to mortgage and a foreclosure is had which omits one of the pieces, the omitted parcel is discharged of the mortgage.</p> <p>[4] Id.—Relief prom Omission.—If the omission of the houses from the foreclosure was by mistake, under such circumstances as to entitle the plaintiff to relief, such relief could be had only by reopening or setting aside the. foreclosure decree by suitable proceedings.</p>

<p>[l] Bstat.es or Deceased Persons—Construction op Will—Intention op Testator.—A will must be given effect in accordance with the intention of the testator, as found from the language of the will, where it is clear, and if it is ambiguous, from the language of the will aided by such extrinsic facts as may be admissible for that purpose.</p> <p>1. Law governing construction of will, note, 2 L. B. A. (N. S.) 443.</p> <p>[2] Id.—Interpretation Upholding Will.—A will must be given an interpretation which will make it operative, rather than one which will render it inoperative, and an interpretation by which it disposes of the property dealt with is to be preferred to one which creates an intestacy.</p> <p>[3] Id.—Conversion of Property—Direction in Will—Personalty from Death.—Where a will directs that the testator’s property be converted into money and the proceeds applied to certain purposes, the property and all its proceeds must be deemed personal property from the time of the testator’s death.</p> <p>[4] Id.—Devise in Trust—Conversion into Money—Power of Alienation not Unlawfully Suspended.—A devise to trustees with directions to sell for the purpose of converting the estate into money to be applied in carrying out further trusts created in the proceeds and with power to sell immediately, does not occasion an unlawful suspension of the power of alienation, and this is equally true where a future date is fixed for the exercise of the power if the donees are permitted to sell in the meantime in their discretion.</p> <p>[5] Id. — Devise in Trust — Creation of Fund fob Payment of Specific Legacies—Power of Alienation not Unlawfully Suspended.—A devise directing trustees to sell property to create a fund for the payment of specific legacies and payment of residue to residuary legatees does not unlawfully suspend the power of alienation, since the right to the legacies, both specific and residuary, vested immediately upon the death of the testatrix and were subject to alienation by the legatees at any time thereafter.</p> <p>[6] Id.—Accumulation of Fund—Disposition upon Death of Beneficiaries—Power of Alienation not Unlawfully Suspended.— A provision in a will directing trustees to accummulate a fund from sales of the testator’s property, and to pay after the accumulation of the fund a specified portion of the income thereof to certain persons during their respective lives, and in the event that any of them shall not be living at the time of such ae- , cumulation, or if then living, shall afterward die, such proportion of the fund shall be paid to their children then living, does not unlawfuly suspend the power of alienation.</p> <p>[7] Id.—Vesting of Gift—Construction of Will.—In a case of ambiguity or inconsistency, the law favors a construction that will cause the gifts to vest, if the opposite construction will render it void.</p> <p>3. When equitable conversion takes place under will directing sale of land at future time, notes, 5 Am. St. Rep. 145; 17 Ann. Cas. 643; Ann. Cas. 1915D, 434.</p> <p>[8] Id.-—Severable Trusts—Suspension of Power of Alienation—Manner of Consideration.—Where the several trusts created by a will in a fund to be accumulated are severable, the question whether the power of alienation is suspended is to be considered with reference to each share separately.</p> <p>[9] Id.'—Payment of Annuities Pending Accumulation of Fund—Provision Disposing of Remainders of Fund Unaffected by Invalidity.—Where a testatrix directed trustees to sell her property, accumulate a fund out of the proceeds, and pay specified portions of the income therefrom to certain persons with remainder to their children upon death before or after the accumulation of the fund, the validity of such trust was not affected by a further provision directing payment of an annuity to each of such persons pending the accumulation of the fund, which provision unlawfully suspended the power of alienation between the death of such a person and the accumulation of the fund.</p> <p>[10] Id.—Valid and Invalid Separable Trusts—Rule.—Where there are several independent trusts, some of which are legal, while others are in contravention of the statute regulating uses and trusts • or the statutes against perpetuities, the estate of the trustee will be upheld to the extent necessary to enable him to execute the valid trusts, and will only be void as to the illegal or invalid trusts.</p>

<p>[1] Judgment—Matters Concluded.—The general rule that a judgment is conclusive not only as to the subject matter in controversy, but also as to every other matter that was or might have been litigated, is not always applicable literally, and really means that a judgment is conclusive upon the issues tendered by the complaint.</p> <p>[2] Id.—Finding Outside of Issues—Evidence—Inadmissibility in Subsequent Action.—A finding made of a fact upon which there is no issue and which does not enter into or form the basis of the judgment is not admissible in another action between the same parties, either as an admission or- by way of estoppel.</p> <p>[3] Divorce—Default—Setting Apart Homestead—Lack of Jurisdiction—Pleading.—Where in. an action for divorce the only relief sought in the complaint is a dissolution of the marriage, and no reference is made therein to the existence of a community homestead or as to the existence or nonexistence of other community property, the court is without jurisdiction upon the default of the defendant to set apart the homestead to the plaintiff.</p> <p>[4] Id. — Dissolution of Marriage — Submission of Single Issue — Bights of Parties.—Parties to an action for divorce may submit the simple issue of their right to a divorce without reference to their property.</p> <p>[5] Id.—Silence of Complaint as to Property—Bight of Defaulting Defendant.—Where a complaint in divorce contains no allegation with reference to property rights, a defaulting defendant should be entitled to assume that the only matter which will be determined is the matter of divorce, and tha,t the question of property rights will be left for consideration and determination in another and separate action.</p> <p>[6] Default—Measure of Belief—Prayer of Complaint.—Where in a default case the relief granted exceeds the prayer of the complaint, it is a nullity and may be attacked collaterally, or its effect avoided under the doctrine that it is not res judicata.</p> <p>[7] Homestead—Community Property—Dissolution of Marriage-Bight of Partition.—While as a general proposition a homestead cannot be made the subject of an action for partition, the principle has no force in the case of a homestead on community property after the dissolution of the marriage by a decree of divorce, where the decree made no disposition of the homestead and there were no minor children.</p> <p>1. Conclusiveness of judgment, note, 15 Am. St. Rep. 142.</p> <p>6. Effect of default judgment beyond scope of relief asked, notes, 11 Ann. Cas. 353; 11 L. B. A. (H. S.) 803.</p> <p>7. Effect of divorce on partition of homestead, notes, 6 Ann. Cas. 954; 4 L, R. A. (3ST, S.) 7S6.</p> <p>[8] Id.—Destruction oe Homestead — Dissolution oe Marriage — Tenancy in Common.—Where a homestead is carved out of community property and thereafter the marriage on which the homestead depends is dissolved by a decree of divorce, which makes no disposition of the homestead, the homestead, in the absence of minor children, is destroyed and the former husband and wife become tenants in common of the property.</p> <p>8. Effect of divorce on homestead, notes, 23 L. R, A. 239; 16 L. R. A. (N. S.) 114.</p>

<p>[1] Book Account—Evidence—Entries in Book not Kept in Usual Course op Business.—In an action upon an open book account, entries in a book not kept in the usual course of business and not containing all the dealings between plaintiff and defendant are not sufficient to establish the plaintiff’s claim.</p> <p>[2] Id.—Action Against IJxecutor—Correctness op Account—Evidence—Incompetency of Plaintiff.—In an action upon an open book account against the executor of an estate, the plaintiff is an incompetent witness to establish the correctness of the account or to testify with reference to any matter of fact occurring before the death of the testator.</p>

<p>[1] Sale—Crop op Growing Melons—Recovery op Price—Pleading— Allegation op Delivery Unnecessary.—In an action to recover the balance of the purchase price of a crop of melons growing on the ranch of the plaintiff which was “sold” by him to the defendant, no specific allegation of delivery is essential.</p> <p>[2] Id.—Growing Crops—Absolute Sale.—Growing crops, as well as other personal property, are subject to absolute sale.</p> <p>[3] Appeal—Lack op Merit—Penalty.—Where in view of section 4% of article VI of the constitution an appeal is without semblance of merit, a penalty should be imposed.</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>Gibson, Dunn & Crutcher and Norman S. Sterry for Appellant.</p>

PROCEEDING- for disbarment of an attorney at law based upon judgment of conviction of felony involving moral turpitude. Action deferred pending appeal from judgment. The facts are in all material respects the same as those in the Matter of Biccardi, a/nte, p. 675.