Volume 187 — California Reports

<p>APPLICATION for a Writ of Mandamus to enforce the dismissal of an action. H. D. Burroughs, Judge Presiding. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] ‘Corporations—Disregard op Entity—Fraud.—While it is the general rule that a corporation is an entity separate and distinct from its stockholders, it is also equally well-settled that both law and equity will, when necessary to circumvent fraud, protect the rights of third persons, and accomplish justice, disregard such distinct existence, and treat them as identical.</p> <p>[2] Id.—Essentials.—In order to cast aside the legal fiction of distinct corporate existence as distinguished from those who own its capital stock, it is not enough that it is so organized and controlled and its affairs so managed as to make it merely an instrumentality, conduit, or adjunct of its stockholders, but it must further appear that they are the business conduits and alter ego of one another, and that to recognize their separate entities would aid the consummation of a wrong.</p> <p>[3] Id. — Purchase op Notes — Guarantor as Sole Stockholder — Nonpayment — Contribution — Statute op Limitations.—Where a corporation purchased notes with money advanced by one of the guarantors, the fact that the guarantor was the sole' stockholder of the corporation and had transferred to it all of his property did not, on the theory that the corporation and guarantor were identical and not separate entities, make such purchase a payment of the notes by the guarantor and forthwith set in motion the statute of limitations against any claim for contribution from the co-guarantors, in the absence of any showing of fraud in either the organization of the corporation, the transfer of the property or the purchase of the notes.</p>

<p>[1] Boundary — Uncertainty of True Location — Agreed Line.— When two adjoining owners of land, being uncertain as to the true location of the boundary line between their contiguous land, agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the period of the statute of limitations, or under such circumstances that substantial los» will be caused by a change of its position, such line becomes in law the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements, notwithstanding the true position of the dividing line could always have been determined by a correct measurement or by a survey.</p> <p>[2] Id.—Intention of Adjoining Owners—Extent of Claims—Consistency With Doctrine.—The doctrine of agreed boundaries is not nullified by the fact that adjoining owners never intended to claim anything beyond the true line. Such intention is entirely consistent with the doctrine.</p> <p>1. Location, of boundary by acquiescence or agreement, notes, 27 Am. Dec. 121; 69 Am. Dec. 711; 27 Am. Bep. 239; 10 L. B. A. L(N. S.) 610.</p>

<p>APPLICATION for Writ of Habeas Corpus to discharge petitioner held in custody for failure to register under the alien poll tax law. Petitioner discharged.</p>

<p>APPLICATION for Writ of Habeas Corpus to discharge petitioner held in custody for .failure to register under the alien poll tax law. Petitioner discharged.</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. Thos. F. Graham, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Pleading—Issues—Evidence—Appeal.—It is settled law under the decisions of this state that where a case is tried without objection upon a showing of facts not pleaded, but supported by the evidence and covered by the findings, objection will not be considered on appeal that the pleadings do not present the issue.</p> <p>[2] Action fob Damages—Destruction of Lumber by Eire—Notice of Nonliability.—Where a wharf and storage company notified a lumber company that there would be a strike of the longshoremen and wharf handlers on a certain date, that it would not receive a shipment of lumber for storage after that date, except subject to its not assuming any responsibility for delivery, or loss, or damages, or theft, or any cause whatever of that nature, until the strike was over and it was in a position to handle the same, and, with said understanding, shortly after the date of the strike the lumber was removed from a steamer by the master and piled in the" rough upon the wharf for the express purpose of having the same stored by the wharf and storage company, the terms of the. notice of nonassnmption of liability were amply sufficient to cover a loss of the lumber by fire.</p> <p>[3] Bailments — Negligence — Nonliability—Contract for.—A depositary or bailee for hire in the course of his ordinary business cannot relieve himself by contract or notice from responding in damages for loss arising from his own negligence, or that of his agents or servants.</p> <p>[4] Id.—Bight to Befuse Goods for Storage Except on Conditions. A wharf and storage company, anticipating a strike of longshoremen and wharf handlers, and having reason to believe that its facilities for handling business would be so disturbed as to render it unsafe to assume the usual risks, has the right to refuse to accept goods in storage except on condition of being released from liability for damages that might in any way be traceable to such disorganized conditions.</p> <p>[5] Id.—Degree of Care Bequired.—Nothing short of gross or wanton negligence would make a wharf and storage company responsible for the loss of lumber placed on its wharf with the express understanding that it would be relieved from all liability, a strike being threatened which would disorganize its usual business, and that the owner of the lumber would take all of the risks if permitted to pile its lumber there awaiting storage.</p> <p>[6] Id.—Contract for Nonliability—Public Policy—Validity of Contract.-—A contract between a wharf and storage company and a lumber company by which the former permitted the latter to place its lumber on the wharf of the former for the purpose of storing it, upon the express understanding that, in view of the fact that a strike of longshoremen and wharf handlers was threatened which would disorganize the business, the former should not be in any way liable, is not against public policy, but the contract is binding upon the parties and operates to relieve the storage company from negligence of its employees while in its service.</p>

<p>[1] Chose in Action—Assignment—Parties.-—An assignee of a chose in action may bring suit thereon in his own name.</p> <p>[2] Id.—Collision of Automobiles — Cause of Action for Negligence—Oral Assignment.—Since there is no statutory provision requiring an assignment of a claim for damages to an automobile, alleged to have resulted from negligence in a collision, to be in writing, parol evidence of the transfer is admissible.</p> <p>[3] Id.—Witnesses—Testimony of Assignor.—In a suit by the assignee upon a claim so assigned, the oral testimony of the assignor himself to the effect that he has transferred his claim is sufdeient to bind the assignor and support a finding that an assignment has been made.</p> <p>[4] Id.—Parties—Collateral Agreement With Reference to Recovery.—Provided the assignment in such a ease, whether verbal or written, is absolute so as to vest the apparent legal title in the assignee, the latter is entitled to sue in his own name, whatever arrangements may have been made between him and the assignor respeeting the proceeds, as the debtor is completely protected by the assignment.</p> <p>[5] Id.—Interest op Third Party in Claim—Evidence—Admissibility op.—In an action by the assignee upon an assigned claim for damages to an automobile alleged to have occurred by defendant’s negligence, evidence of the interest in the claim of an insurance company in which both the assignor and assignee were insured is admissible subject to plaintiff’s connecting this interest with the present action by proof of his authorization to sue.</p> <p>[6] Id.—Evidence—Appeal.—In an action upon an assigned claim where the trial court found, upon ample evidence, that plaintiff sustained the burden of proving a direct assignment- of the claim, defendant cannot upon appeal raise objection that certain evidence is lacking when his attorneys are responsible for its omission, nor can he complain that the ease was tried upon an erroneous theory when the court and parties were led into the acceptance of that theory by defendant’s own counsel.</p>

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

<p>[1] Municipal -Corporations—Consolidation-^-Conditions of.—Under the law of this state relative to consolidation of municipal corporations there may be a consolidation without any assumption of existing bonded indebtedness, a consolidation with the assumption " of all the existing -bonded indebtedness, and a consolidation with the assumption of only a part of the existing bonded indebtedness.</p> <p>[2] Id.—Election—Official Ballot—Statement of Proposition.— The importance of stating upon the official ballot, at least in terms sufficiently specific to bring home to the voter knowledge of the general nature of the proposition upon which he is to vote, has been uniformly recognized by all our laws relative to elections under the so-called Australian ballot system.</p> <p>[3] Id.—Act fob Consolidating Municipalities—Construction of.— It was the design of the act “to provide for the consolidation of municipal corporations,” approved June 11, 1913 (Stats. 1913, p. 577), as amended April 29, 1915 (Stats. 1915, p. 311), that a proposition to consolidate municipal corporations should be stated upon the official ballot in terms sufficiently specific to tell the voter in a general way what the whole proposition was; and where there is a failure to indicate on the ballot that there is to be an assumption by one of the municipalities of a part of the bonded indebtedness of the other, the departure from the requisite form of ballot under the Consolidation Act is so substantial in nature that it cannot be hold not to have affected the result, and there was no consolidation of the municipalities by the election.</p>

<p>[1] Evidence—Disqualification of Witnesses—Section 1880, Subdivision 3, Code of Civil Procedure—Waiver—Executors and Administrators.—The provision of section 1880, subdivision 3, of the Code of Civil Procedure, that parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person, cannot be witnesses, may be waived by the personal representative of the decedent; and in an action by the surviving widow of the deceased to recover from his estate a certain amount which she had turned over to him for investment in bonds, where the administrator expressly declined to object to the widow testifying on the grounds of ineompeteuc-y under said section, the waiver should have been allowed and the witness permitted to testify.</p> <p>1. Bight of personal representative, heir or next of kin of party to waive privileged communication, notes, 10 Ann. Cas. 1118; Ann. Cas. 1913A, 100.</p>

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

<p>[1] Superior Court—Increase in Number op Judges of County— Power of Governor.—The Governor of the state is authorized to temporarily increase the number of superior court judges in a county by a request that judges from other counties sit within that county as superior court judges.</p> <p>[2] Drainage District—Determining Validity of Assessments— Jurisdiction op Court.—Assuming that the matter pending before a superior court of hearing and determining a question as to the validity and proper apportionment of assessments of a drainage district, is a judicial one, as the statute expressly declares, the court has jurisdiction of the matter, and three superior court judges selected by the Governor to sit in that court in the matter have jurisdiction to dispose of the same.</p> <p>[3] Id.—Disqualification op Judge.—The judge of the superior court of a county is disqualified, under subdivision 5 of section 170 of the Code of Civil Procedure, from hearing proceedings to determine the validity and proper apportionment of assessments of a drainage district when they affect or relate to any real property within his county.</p> <p>[4] Superior Court—Extra Judges.—There may be as many sessions of the court as there are superior court judges in a county, including those assigned thereto by the Governor and those acting pro tempore, and all of these judges can also sit together at one time for the trial of a case; and the constitution contemplates a session held by one or more judges as well as by one and by all.</p> <p>[5] Id.—Judges Sitting Together.—The constitution authorizes three judges of the superior court, if they choose, to sit together for The purpose of hearing any proceeding over which the court itself has jurisdiction.</p> <p>[6] Id.—Determination by Majority.—The general rule is that where authority is conferred upon a court of more than one judge, the majority can render decisions of the court in the absence of express statutory or constitutional provision to the contrary.</p> <p>[7] Id.—Jurisdiction—Sufficiency of Complaint.—If a court sitting to determine the validity and apportionment of assessments of a drainage district has jurisdiction and authority to pass upon the validity of "the assessments and the questions arising with relation thereto, the sufficiency of the complaint or document filed to invoke that jurisdiction is one to be determined by it upon the hearing and does not affect its jurisdiction to pass thereon.</p> <p>[8] Drainage District—Determination of Validity of Assessments —Judicial Proceedings.—The legislature, under the act relating to the issuance of bonds for assessments for improvements in the Sacramento and San Joaquin . drainage district (Stats. 1919, p. 1092, secs. 4, 5), contemplated a court proceeding, and provided that such proceeding should be commenced in the superior court, and upon a judgment by it affirming the validity of the bonds no further attack is permitted thereon.</p>

PROCEEDING in Mandamus to compel the dismissal of an action on the ground that it was not brought to trial within five years after answer filed. Writ granted. The facts are stated in the opinion of the court.

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

<p>[1] Contracts—Option—Acceptance—Election.—An option contract may be regarded as embodying an offer, and whén the optionee, or person to whom the offer is made, signifies his desire to accept in accordance with the terms of the option, the optionor, or person making the offer, becomes obligated to perform. This acceptance of the offer contained in the option contract is called “election” and gives rise to a subsequent contract between the parties to buy or sell, or perform whatever other acts have been specified in the option contract. The particular act or acts which constitute an election may be fixed by the terms of the option, as also the time when, the place where, and the person to whom it shall be . made; and the language of the contract itself controls as to what act or acts constitute an election.</p> <p>[2] Id.—Sale oe Stock—Option—Election.'—Where an option clause in a contract for the sale of stock provided that the first parties would at the option of the second party, at the expiration of a certain time, repurchase from the second party the stock sold for the amount of the purchase price on the exercise of said option, provided the second party should give ten days’ notice before expiration of the time of his intention to exercise said option, the giving of the notice gave rise to a binding bilateral contract for the repurchase of the stock.</p> <p>[3] Id.—Demand—Tender.—Under such a contract all that was required of the second party, after due notice of election, was to offer to perform, by tender and demand, on or within a reasonable time after the date upon which the first parties’ obligation to perform arose.</p> <p>[4] Id.—Time por Demand.—The general rule is that where an actual demand is essential as a condition precedent to a complete right of action for the recovery of money, such demand must be made within a reasonable time after it can lawfully be made, or within a reasonable time after the contract by its terms contemplates that it should be made, and that, unless there are peculiar circumstances affecting the question, a time coincident with that of the statute of limitations will be deemed reasonable.</p> <p>[5] Id.—Statute oe Limitations.—Under such a contract a cause of action arose against the first parties upon their refusal to accept a tender and comply with a demand of the second party, and where the action was brought in less than four years thereafter, it is not barred by subdivision 1 of section 337 of the Code of Civil Procedure.</p>

<p>[1] Quieting Title—Appeal by Past op Dependants—Reversal op Judgment — Honappeaung Defendants.—In an action to quiet title in which plaintiff’s title is based on a school land certificate and the defendants, who are tenants in common, claim under another certificate, the controversy being as to the validity of the respective certificates, where the lower court held ■ plaintiff’s certificate valid giving him judgment, the appellate court has no power in reversing the judgment upon an appeal by part of the defendants only to order a retrial of the issues as to all of the defendants.</p> <p>[2] Id.-—Rights of Honappealing Defendants—Interests not Adverse.—While the rights of nonappealing defendants in such a case would be affected by a reversal of the entire judgment, their interests were in no sense adverse to the appellants, and their rights would not be affected by a reversal of the judgment as to the appealing defendants, as the rights of the several defendants were separate and distinct.</p> <p>[3] Id.—Retrial—Undivided Interests.—A retrial of such case can be had with relation to the undivided interest claimed by the appealing defendants without in any wise affecting the rights of the plaintiff and nonappealing defendants as determined by the previous judgment.</p> <p>[4] A,ppeal—Reversal—Application op Order.—The broad expression “the judgment is reversed” will be confined to the issues arising upon the appeal and the parties appealing.</p> <p>[5] Id.—Appeal prom Portion op Judgment.—An appeal from a judgment by some of the defendants, although the notice of appeal is general in its terms, is of necessity an appeal from only that portion of the judgment which injuriously affects the appealing defendants, and is thus, in effect, an appeal from a portion of the judgment—that is to say, the portion of the judgment adverse to their interests, unless the reversal or modification of the whole judgment is essential to protect the interests of the appealing defendants.</p> <p>[6] Id.—Review op Part op Judgment—Jurisdiction.—Upon an appeal from a portion of a judgment only the appellate court has no jurisdiction to review any part of the judgment, except 'the part to which the appeal is directed, and an order of reversal, although general in terms, will be construed to apply only to the part brought up for review.</p> <p>6. Effect of reversal where part only of judgment is appealed from, note, Ann. Cas. 1913E, 1323.</p>

<p>[1] Writ of Beview—When Lies.—To grant a writ of review it must appear that an inferior tribunal, board, or officer, exercising judicial functions, has exceeded its or his jurisdiction, that there is no appeal from the judgment sought to be reviewed, nor, in the judgment of the court to which the application for the writ is made, any plain, speedy, and adequate remedy; and the review upon such writ cannot be extended further than to determine whether the inferior tribunal, board, or officer had regularly pursued his or its authority.</p> <p>[2] Personal Bights — Pursuit of Business.—It is the right of every person to pursue any lawful business or vocation he may select, subject to such legal restrictions and regulations as the proper governmental authority may impose for the protection and safety of society, and such right is available and must be protected and secured, and cannot be taken from those who possess it, without “due process of law.”</p> <p>[3] Beal Estate Act—Validity of.—The act known as the “Beal Estate Act” (Stats. 1919, p. 1252) violates none of the fundamental principles of law, but is in harmony with them, in that it is a measure looking to the protection of the public, and provides a method of procedure in all respects ample to the protection of the rights of the licensee, and must be followed in order that the license can be legally revoked by the commissioner.</p> <p>[4] Id.—Action of Beal Estate Commissioner — Quasi-judicial Capacity.—The commissioner under the “Beal Estate Act” acts in a gacm-judieial capacity when passing upon applications for a license, and when hearing petitions to revoke, and revoking, a license issued under the act, for he is deciding property rights and determining what shall be decreed in the matters before him, all of which is the exercise of a “judicial function”; but such commissions are not courts in the strict sense nor exercising judicial power as meant by the constitution conferring power upon courts, and statutes creating such commissions are constitutional.</p> <p>[5] Id.—Charge of Dishonest Dealing — Jurisdiction.—A charge against a person laid before the real estate commissioner of acts “involving embezzlement, false representations,' and gross moral turpitude” constitute “dishonest dealing,” within the meaning of the phrase used in the Beal Estate Act, ancl presents an issue which the commissioner is clearly authorized to hear and has jurisdiction to determine.</p> <p>1. Nature and scope of bill of review, note, 20 Am. Dec. 160. Who is entitled to file bill of review, note, Ann, Cas. 1914C, 126.</p> <p>[6] Id.—Constitutionality of Act.—The “Beal Estate Act” (Stats. 1919, p. 1252) is constitutional.</p>

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

<p>[1] Contracts — Storage op Sugar ■— Implied Terms.—Where the owner of warehouses entered into a contract with the owner of certain sugar by correspondence in which the former solicited the patronage of the latter and represented that he would be in a position to store a certain quantity of sugar, and probably more, and represented that his warehouse was a reinforced concrete, fireproof building, upon which representation a certain quantity of sugar was stored, and thereafter through further negotiations between the parties additional sugar was shipped for storage, there was, in the absence of notice to the consignor to the contrary, at least an implied agreement on the part of the warehouseman to accept the additional amount for storage under the same terms and conditions as the previous amount.</p> <p>[2] Id.—Diligence in Receiving Goods por Storage—Lack op Liability por Damage by Dire,—Where an owner of warehouses, under a contract to store certain sugar, exercises reasonable diligence in prosecuting the work of storing the sugar which is shipped to him in unexpectedly large quantities, and in the process of transferring it from ears to the warehouses places it on an unloading platform which he incloses to protect it from tho elements, he is not liable for destruction of the sugar by accidental fire while so temporarily stored, it being reasonably necessary to place the sugar on the unloading platform temporarily owing to the congested condition of the- warehouses and it being left there no longer than, in the exercise of reasonable care and diligence, was necessary.</p> <p>2. Liability of bailee for loss of, or injury to, goods kept at a place other than that originally intended, note, 12 A. L. R. 1322.</p>

<p>[1] Life Insurance—Medical Examination—Accidents.—In a medical examination on an application for life insurance, a question as to what illnesses, diseases, or accidents the applicant has had since childhood calls for facts in regard to accidents suffered since childhood, as well as illnesses and diseases, and an answer which omits all mention of accidents is, in effect, an answer that no accidents have been sustained.</p> <p>[2] Law of the Case—Meaning of.—The doctrine of the law of the case means simply that the court having once decided the law and the cause having gone back to the lower court for further proceedings in accordance with the law as thus established, and the parties and the lower court having acted in reliance upon that law, the appellate court will not, upon a second appeal, again enter into a consideration of the question, but, if the facts and circumstances are substantially the same, will treat it as settled law, regardless of its accuracy.</p> <p>[3] Life Insurance—False Answers—Directing Verdict.—In an action on a life insurance policy where the evidence conclusively shows that the answer to a question concerning “illnesses, diseases, and accidents" was untrue and, according to the law laid down for the guidance of the trial court, the truth or falsity of the answers was the determining factor and the only question to be submitted to the jury, it was proper for the judge to direct a verdict for defendant upon the theory that a material question had been falsely answered by the decedent..</p> <p>[4] Id.'—Accident—Informing Medical Adviser—Incompetent Evidence.—In an action on a life insurance policy, where it is contended in defense that the insured falsely answered a question on his medical examination in failing to report an accident, there is no competent evidence in support of plaintiff’s contention that the decedent informed the medical examiner of the accident, where the only evidence tendered was that of the physician, who testified that he had no independent recollection whatever of the examination and a memorandum signed by the witness by which it was sought to refresh his memory dated nine years after the examination was not shown to have been written or dictated by the witness or to have been written at a time when it was fresh in the witness’ memory or that he knew the fact was correctly stated-therein.</p> <p>[5] Id.—Witnesses—¡Refreshing Memory—Memorandum.—A witness cannot refresh his memory or testify from a memorandum unless it is made to appear that the memorandum complies with certain qualifications specified in section 2047 of the Code of Civil Procedure.</p> <p>[6] Id.—Evidence—Failure to Call Witness—Presumption.—In such an action the contention of plaintiff that since defendant objected to plaintiff’s questioning the physician who examined the decedent for defendant and itself failed to call the physician, the presumption arises that the physician’s testimony would have been adverse to defendant, cannot be maintained, as defendant was under no obligation to call the physician as its own witness or to permit him to testify for plaintiff, especially as the physician was unable to recall the medical examination at all and there was no legally competent memorandum to aid him.</p>

<p>[1] Community Property—Section 164 op the Civil Code—Statutory Construction.—Two rules have been uniformly adhered to in the interpretation of section 164 of the Civil Code and its amendments: First, that the law has been construed as applying only to property acquired in California, or by persons domiciled here; and second, that amendments are not to be construed as retroactive, unless the language thereof compels such a construction.</p> <p>[2] Id.—Property Acquired in Other States—Status op.—Notwithstanding the definition of community property has in terms included all property acquired by the husband or wife after marriage, other than that acquired by gift, bequest, devise, or descent, it has uniformly been held that property acquired in other states by persons domiciled therein and subsequently brought to California by them at the time of establishing residence in this • state, retained the status that it had in the state where it was acquired, regardless of our definition of community property.</p> <p>[3] Statutory Construction—Codes and Amendments not Betroactive.—The Civil Code expressly provides that no part of it is retroactive unless expressly so declared, which rule applies to the amendments to that code as well; and it is a general rule of statutory construction that statutes should not be construed retrospectively unless it is clear that such was the legislative intention.</p> <p>[4] Community Property—Property Acquired Outside op State— Construction op Section 164 op the Civil Code.—The clause of section 164 of the Civil Code, as amended in 1917, referring to personal property, construed prospectively and not retrospectively, as required by our code and by our decisions, should read that personal property wherever situated (thereafter) acquired by a person while domiciled elsewhere which would not have been the separate property of either husband or wife, if acquired while domiciled in this state, is community property; and so construed all personal property owned by a decedent at the time of his removal to California in 1910 would be his separate property according to the law in force at that time, and would be unaffected by the amended definition of community property of 1917, where the property was separate property under the law of the state in which it was acquired.</p> <p>[5] Id.—Section 1402, Civil Code—Inheritance Tax Act of 1917.— Section 1402 of the Civil Code, providing for the succession to the community property of a decedent, would have no application to such separate property, and section 1 of the Inheritance Tax Act of 1917, which refers only to the community property to which the wife would succeed under section 1402 of the Civil Code, would have no application to such separate property.</p>

<p>[1] Publication—Definition of Word “Print.”—The definition of the word “print” is to put in print, or cause to be put in print or issued from the press; 'carry or send forth in print; publish.</p> <p>[2] Newspapers—General Circulation—Printing in One Town and Publication and Circulation in Another.—The fact that the physical printing of a paper is done in one town, and the publi- • cation and circulation in another, does not prevent it from being a newspaper of general circulation within the meaning of section 4460 of the Political Code.</p>

<p>APPEAL from a judgment of the Superior Court of Solano County. W. T. O’Donnell, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[l] Slander op Title—Vendor and Vendee—Guaranty op Title.— In an action by a vendor against a title insurance company for slander of title, where it appears from the complaint that the plaintiff presented to his vendee a duplicate certificate of title issued by the registrar under the Torrens land law, that the pur- • chaser demanded as additional assurance of title a guaranty of the defendant, and this the plaintiff agreed to furnish, that the defendant declined to furnish such a guaranty of title unless a certain judgment of record was specifically released, that the plaintiff agreed to secure such release, and paid a certain sum for such purpose to the defendant, that thereupon the defendant wrote its guaranty of the title to the purchaser, and the plaintiff secured the purchase money, the vendor is not entitled to recover the amount which the defendant required him to pay as a condition of entering into a guaranty with a third person, plaintiff’s vendee, leaving the defendant obligated by its guaranty.</p>

<p>[1] Vendor and Vendee—Failure of Title—Nonliability for Damages—Notice.—In an action to foreclose a purchase money mortgage, the defendant cannot recover damages for failure of title to a portion of the land, in the absence of fraud, although the conveyance to him included this portion of the land, where the grantor knew that it did not have title thereto, or at least that a railroad company was occupying and claiming it adversely, and the grantee was aware that at least some portion of this land was claimed and occupied by the railroad as a right of way.</p> <p>[2] Id.—Grant by Congress—Adverse Claim—Notice.—An act of Congress under which land is claimed by a railroad company, being a public statute, is constructive notice to both parties to a conveyance of the land of the adverse claim of the railroad company.</p> <p>[3] Id.—Examination of Title — Mistake — Bescission.—It is well settled that, in the absence of fraud or an agreement, express or implied, for a good or particular title, a purchaser of land buys at his peril and is bound to look to the title and competency of the vendor. Therefore a purchaser cannot rescind on the ground that he was mistaken as to his vendor’s title. But where both parties are under a mistake as to the vendor's title, equity will relieve the purchaser from the contract.</p> <p>[4] Id.-—Expression of Opinions.—Mere expressions of opinion as to the sufficiency of the title, when the means of information are equally accessible to both parties, or the same facts are within the knowledge of both parties, and when no confidential relation exists between them, do not constitute fraud or deceit on the part of the vendor. It is a more statement of opinion, and does not justify the party to whom the statement is made in relying thereon.</p> <p>4. Misstatement as to title to real property sold as matter of opinion, notes, 28 i. E. A. (ST. S.) 200; 39 1. E. A. (N. S.) 1143.</p>

<p>[1] Statutes—County Engineer Act—Creation of Public Office.— The County Engineer Act (Stats. 1919, pp. 1290, 1295) contemplates the creation of a county office and does, in fact, provide for something more than a mere employment by the board of supervisors of a person to be known as the county engineer.</p> <p>[2] Id.—Statutory Construction.—Cardinal rules of statutory construction require an interpretation of a statute which will give effect to the legislative intent, if consistent with the real object and purpose of the statute.</p> <p>[3] Id.—Declaration of Legislature — Effect of. — A legislative declaration, whether contained in the title or body of a statute, that the statute was intended to promote a certain purpose is not conclusive on the courts and they may and must inquire into the real, as distinguished from the ostensible, purpose of the statute, and determine the fact whether, after all has been said and done by the legislature, the statute, in its scope and effect, departs from the declared legislative design and contravenes the fundamental and supreme law of the state.</p> <p>[4] Id-.—Public Office — Character of — How Determined.—The definition and application of the words “public office” depend not 'upon what the particular office in question may be called, nor upon what a statute may call it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the true character of the position and make and mark it a public office, irrespective of its formal designation.</p> <p>[5] Id.—Definition.—A public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public.</p> <p>[6] Id.—Nature of Public Office.—A public officer is a public agent and as such acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the act performed by the officer the authority and power of a public act or law. The most ■ general characteristic of a public officer, which ‘distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting. Their characteristics are a fixed tenure of position, the exaction of a public oath of office, and perhaps, an official bond, the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and the payment of his salary from the general county treasury.</p> <p>[7] ,Id.—County Officer—Definition.—A county officer is a public officer and may be specifically defined to be one who fills a position usually provided for in the organization of counties and county governments, and is selected by the political subdivision of the state called the “county” to represent that governmental unit, continuously and as part of the regular and permanent administration of public power, in carrying out certain acts with the performance of which it is charged in behalf of the public.</p> <p>[8] Id.-—County Engineer Act—Failure to Specify Compensation. The County Engineer Act is practically inoperative because it specifies no compensation for the office, and any ordinance of a board of supervisors attempting to fix the salary of a person appointed to the position of county engineer is void to that extent, because the constitution imposes upon the legislature, exclusively, the duty of regulating the compensation of all county officers, unless a county has adopted a charter in accordance with the provisions of sections 7% or 7%a, article XI, of the constitution, or there is some other express constitutional exception.</p> <p>[9] Id.—County Officers—Fixing Salary—Delegation of Power— Constitutional Law.-—-The state legislature cannot directly delegate to the board of supervisors of the various counties the power of fixing the compensation of a county officer.</p> <p>[10] Id.—Uniform System of County Governments — Constitutional Law.—The constitution contemplates and commands that the system of county governments shall be uniform throughout the state, except in those special instances where the constitution itself sanctions a departure from uniformity, such, for instance, as in the ease of. counties or consolidated cities and counties which adopt charters in accordance with the provisions of sections 7]^ and 7%a of the constitution.</p> <p>[11] Id.—Definition of “System.”—The word “system,” as employed in the constitution, means an organized plan or scheme in keeping with which the constituent parts thereof are rendered similar and are connected and combined into one complete, harmonious whole, and it necessarily imports both a unity of purpose and entirety of operation.</p> <p>[12] Id.-—County Engineer Act — ITnconstitutionality of.—Inasmuch as the County Engineer Act provides for a county office, involving the exercise of political functions, it violates the constitutional requirement that the system of county governments prescribed by the legislature shall be uniform throughout the state, by reason of the fact that it is not mandatory in its operations, but it is optional with each county whether or not the office provided for by the act shall be established therein.</p>

<p>[1] Appeal—Conflicting Evidence—Findings.—Where the evidence is sufficient as a matter of law, and presents a substantial conflict, the findings will not be disturbed on appeal.</p> <p>[2] Deeds—Delivery—Evidence of.—The question of delivery of a deed is essentially one of fact and depends upon the intention of the parties to unconditionally transfer the title to the property. No set form of delivery is necessary, and whether a delivery has been effected in a particular case must be determined by the facts and the circumstances, including the conduct of the parties.'</p> <p>[3] Evidence—Credibility of Witness.—It is the exclusive function of the trial court to weigh the evidence and determine the credibility of the witnesses.</p> <p>2. Delivery of deed as question of law or fact, notes, 16 Am. Dec. 35; 58 Am, Rep. 289; 5§ Ain, St, Rep. 537; Ann. Cas. 1914D, 108.</p> <p>[4] Deeds—Action to Cancel and Quiet Title—Findings.—In an action for the cancellation of deeds to real property given by plaintiff’s testator to the defendant and to quiet title, where the trial court found that on a certain date there was a delivery of the deeds, another "finding to the effect that neither the testator nor her estate was the owner of the property at all times is correct, for upon "the theory that there was a delivery on the date found, neither the testator nor her estate could have "been the owner after that date.</p> <p>[5] Id.—Transfer in Contemplation of Death—Motive—Evidence. Although the complaint alleged in such action that the transfer was made in contemplation of death, where the court found that the deeds were delivered during the lifetime of the grantor and . that title was in the grantee, the motive of the former—whether she delivered the deeds in contemplation of death—is immaterial, and the finding could not have been prejudicial.</p> <p>[6] Id.—Evidence—Physical Condition of Grantor.—In such a case evidence of the statement of the doctor to the grantor concerning her physical condition was properly excluded as hearsay, the doctor not being called as a witness.</p> <p>[7] Id.—Fear of Grantee.—In such a case the testimony of a witness as to whether or not the grantor was in fear of the grantee was properly excluded, where there was no claim that the deeds were delivered by reason of the grantee’s coercion.</p> <p>[8] Id.—Equity—Relief.—In such a case, where the complaint asked for a cancellation of the deeds, and the court found that respondent was the owner of the property, the relief granted was clearly embraced within the issues.</p> <p>[9] Id.—Motion to Dismiss Cross-complaint and Separate Defense —Failure to Object—Waiver.—In such ease, where no objection was made by plaintiff to the granting of motions by defendant at the close of the trial to dismiss the cross-complaint ard separate defense without prejudice, the question cannot be raised for the first time on appeal.</p> <p>[10] Id.—Withdrawal of Pleading.—The withdrawal by defendant of his pleading admitting title to one-half of the property in appellant, carried with it the corresponding prayer for relief and .left only the general prayer of the answer.</p>

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

<p>[1] Criminal Law—Motion in Arrest of Judgment—Definition.—■ A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, and it may be founded on any of the defects in the indictment or information mentioned in section 1004 of the Penal Code, unless the objection has been waived by a failure to demur, and must be made and determined before the judgment is pronounced.</p> <p>[2] Id.—Demurrer to Indictment—Grounds of.—The defendant may demur to an indictment when it appears upon the face thereof either that it does not substantially conform to the requirements of sections 950, 951, and 952 of the Penal Code, or that the facts stated do not constitute a public offense.</p> <p>[3] Id.—Form of Indictment.—An indictment must contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and it must be direct and certain, as regards the- offense charged and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.</p> <p>[4] Id.—Objections to Indictment—How Taken.—When the objections mentioned in section 1004 of the Penal Code appear on the face of an indictment, they can only be taken by demurrer, except that the objection that the facts stated do not constitute a ' public offense may be taken after the trial, in arrest of judgment.</p> <p>[5] Id.—Sufficiency of Indictment.—In a prosecution for presenting a false proof in support of a claim upon a policy of insurance, under section 549 of the Penal Code, where the indictment alleged that the insurance company was organized and doing an insurance business on a certain date, that defendant procured a policy of insurance, and that, intending to cheat the said company, he presented false claims of proof of loss to it, the proof of loss being set out in the indictment, the indictment was sufficient although there was no allegation, in terms, that the proofs of loss were presented on contracts of insurance for the payment of a loss, and there was no allegation that the company whose existence was alleged issued the policies.'</p> <p>[6] Id.—Judgments — Omissions — When not Prejudicial.—Under section 960 of the Penal Code no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason "of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits; and under section 1404, neither a departure from the form or mode prescribed by the Penal Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.</p> <p>[7] Id.—Failure to Allege Contract in Force—Immateriality oe. In such a ease the indictment is not defective in not alleging that the contract of insurance was in force at the time the proof of loss was presented.</p>

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

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

<p>[1] Contracts—Agreement to Sell Land—Principal and Agent— Vendor and Vendee—Intent.—-Whether an agreement permitting a person “to sell” land' on certain terms creates the relation of principal and agent or that of vendor and purchaser under a contract of sale depends upon the intention of the parties.</p> <p>[2] Id.—Ambiguity—Construction by Parties.—Where the intention of the parties to a contract is imperfectly expressed and the language employed by them is ambiguous and requires interpretation, it is permissible for the court to take into consideration the construction placed upon, the instrument by the various persons concerned.</p> <p>[3] Id.—Action for Accounting—Sale of Land Under Option—Failure to Sign Option.-—In an action for an accounting to recover from defendants profits derived from a sale of land effected by them, without the .knowledge and consent of plaintiffs, by means of an option given to the plaintiffs by the land owners, the failure of the trustee for the owners to sign the option is of no avail to the defendants, where the sale was consummated by them under the option and its terms were observed and complied with without question by all of the owners of the land.</p> <p>[4] Fraud—Accounting—Jurisdiction—Equity.—An action for an accounting lies within the jurisdiction of equity, among other instances, in cases of fraud as well as where there is a fiduciary relation between the parties and the facts are peculiarly within the knowledge of one; and having once taken jurisdiction, the court will grant further relief demanded by the situation and neeessary to complete justice.</p> <p>[5] Id. — Conspiracy — Liability op Several Parties. — If through fraud and conspiracy other defendants assisted one of the defendants in violating his obligation to his principal by effecting a sale of land under an option given to plaintiffs, without plaintiffs’ knowledge, and in retaining the proceeds, they, as well as the other defendant, are equally liable for all the consequences of the conspiracy, regardless of the extent of their participation or the share of the profits obtained by them.</p> <p>[6] Id.—Violation op Fiduciary Obligation—Liability op Parties Assisting—Accounting—Judgment.—Where, after the violation of a fiduciary obligation, an accounting is had and an amount found to be due from the agent or trustee, judgment for the same amount may also be rendered against those proven to have fraudulently aided in the attempt of the fiduciary to obtain secret profits, although they themselves are not fiduciaries and received no share of the profits.</p> <p>[7] Id.—Conflicting Evidence—Findings.—Where, although the -trial court might have drawn the inference from the evidence before it that one of the defendants in such case did not act in conjunction with the other defendants in the matter, the conclusion reached was that said defendant was implicated in the conspiracy and the evidence was conflicting, and it was possible to draw conflicting inferences from that part of the evidence which was not itself conflicting, the conclusion cannot be disturbed on appeal.</p>

<p>[1] Street Law—Act of 1913—Jurisdiction to Order Street Improvement—Grades.—The Street Improvement Act, as adopted in 1913, authorizes the physical improvement and change of grade of a public street independently of a concurrent establishment, change, or modification of the official or paper grade in the same proceeding; and a city council has jurisdiction to proceed under this statute with a view to contracting for street work in conformity to previously established grades.</p> <p>[2] Id.—Authority to Establish Grade for Tunnel.—The Street Improvement Act of 1913 confers authority to establish a grade for a tunnel to -be used as a public thoroughfare.</p> <p>[3] Id.—Resolution of Intention—Designation of Grade—Reference to Plans and Specification.—A resolution of intention to improve a tunnel used as a public thoroughfare in a city is not insufficient, although not designating the grade upon which the work is to be done, where it provides that the work shall be constructed as shown on various plans and specifications 'referred to for more particular description and on file in the city engineer’s office, as it will not be inferred that all the information required was not contained in such specifications, in the absence of a showing to the contrary.</p> <p>[4] Id.—Notice of Proposed Improvement—Affidavit of.—Under the Street Improvement Act of 1913, the making and filing of an affidavit by the city clerk of mailing post-cards to the property owners within the assessment district containing the notice required by the statute of the proposed improvement, before the work is ordered, is mandatory and jurisdictional as affecting the power of the city council to pass an ordinance ordering the performance of the work; and such an affidavit is insufficient and the city council acquires no jurisdiction to order the work, where the affidavit refers to the location of the work proposed as, “for the improvement of Broadway tunnel,” while the resolution of intention included the improvement of “Broadway tunnel between Temple Street and Sunset Boulevard, California Street between North Broadway and Hill Street, North Broadway between Temple Street and California Street.”</p> <p>[5] Judgments—Conclusion op Law—Appeal.—An erroneous conclusion of law does not constitute a cause of reversal if the judgment is right.</p> <p>[6] Street Law—Unlawful Changing op Grade—Action por Damages—Interest.—In an action for damages against a city arising from the unlawful changing of the street grade in front of plaintiff’s premises by the city, the claim being one for unliquidated damages does not draw interest before judgment.</p> <p>[7] Id.—State or Municipality'—Interest.—As against a state or municipality thereof interest cannot be recovered except under special statutory authorization.</p> <p>6. Bight to interest on damages from change of grade of street, note, 28 L. B. A. (N. S.) 66.</p>

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

<p>[1] Negligence—Personal Injuries—Pleading—Inconsistent Defenses.—A defendant has a right to make inconsistent defenses, and he does so in an action for damages for personal injuries where in the first count of his answer he specifically denies the charge of negligence set forth in the complaint and in his second count alleges contributory negligence of the plaintiff.</p> <p>[2] Id.—Instructions — Position of Conductor on • Car — Question of Pact.—In an action for damages for personal injuries sustained in falling from a “pay-as-you-enter” street-ear, where the complaint counts upon the negligence of the company in suddenly starting the car with a jerk while the plaintiff was alighting, and there is no general allegation of negligence, an instruction that if the conductor knew that the plaintiff was about to alight and that the alighting place was dangerous because the ear was traveling at a fast rate of speed and would necessarily give a lurch upon reaching a certain street and he was not in his place on the car, the acts of the conductor, consisting in his failure to be at his post, would constitute negligence, and in such a ease the verdict should be for plaintiff, is erroneous, as the duty of the conductor with reference to his place on the car is a question of fact, and there was no issue on this subject.</p> <p>2. Presumption of negligence from sudden start, stop, jerk, or jolt of ear, notes, 13 L. R. A. (N. S.) 611; 29 L. R. A. (N. S.) 814; L. R. A. 1916C, 373.</p> <p>Negligence on starting street-ear with jerk while passenger is alighting, notes, 23 B. R. A. (N. S.) 891; 34 L. R. A. (N. S.) 225.</p> <p>[3] Id.—Contributory Negligence.-—Such instruction is prejudicially erroneous, in that it fails to take into account the alleged' contributory negligence of the plaintiff, this defense having been made.</p> <p>[4] Id.—Instruction—Proximate Cause of Injury.—Such instruction is erroneous in overlooking the principle that the negligence must be a proximate cause of the injury in order to justify recovery.</p> <p>[5] Id.—Employees of Carriers—Place of Performance of Duties. The law fixes no particular place for the performance of the duties of the employees of a carrier; it merely fixes the obligation of the carrier to the passenger.</p> <p>[6] Id.—Lurching of Car.—Such instruction is erroneous in permitting the jury to find for the plaintiff, not only "upon conduct of the conductor which could not be a proximate cause of the injury, but also if she was injured by a jerk or lurch of the car, necessarily incident to its operation over the intersection of a street at fast speed, and if the conductor was not in his place.</p> <p>[7] Id.—Proximate Cause of Injury—Matters of Law.—When the court specifically instructs the jury that in a certain state of facts they must bring in a verdict for the plaintiff, the jury has a right to assume that the court in that instance is determining as a matter of law that such negligence was the proximate cause of the injury and that there was no contributory negligence.</p> <p>[8] Id.-—-Instruction' to Find for Plaintiff—Essentials of.—The rule is that whore an instruction directs a verdict for plaintiff if the jury finds certain facts to be true, it must embrace all the things necessary to show the legal liability of the defendant and to warrant the direction or conclusion that the plaintiff is entitled to the verdict.</p> <p>[9] Id.—Justifiable Rate of Speed — Ambiguous Instruction.—In such a case an instruction that the defendant may be justified under certain circumstances in running its car at “a very fast” or “the fastest rate” of speed, while under other circumstances to run its ears at “a high” rate of speed might be negligence, and that if the jury found that the defendant operated its car at such a rate of speed while approaching the streets where the accident happened, and that said speed contributed to or was the proximate cause of the accident, the verdict should he for the plaintiff, is ambiguous, because it does not appear what rate of speed was considered by the court in the last sentence of the instruction.</p> <p>[10] Id.—Erroneous Instruction.—Such instruction is erroneous in that it allows the' jury to bring in a verdict for plaintiff if the rate of speed “might be negligent.” In order that the plaintiff should recover because of the speed alone, it is essential that the speed should have been negligent under the circumstances.</p> <p>[11] Id.—Proximate Cause—Speed Contributing to.—Such instruction is erroneous in the fact that the jury was instructed that if the speed contributed to or was the proximate cause of the accident, their verdict should be for the plaintiff.</p> <p>[12] Id.—Construction of Instruction — Contradictory Instructions.—Instructions are to be construed together, but where the instructions are flatly contradictory, as is the ease where the jury is instructed upon a specific state of facts to bring in a verdict in favor of the plaintiff or defendant, and is elsewhere instructed in general terms not to do so, the instructions must he held to be conflicting and prejudicial, because it cannot he ascertained upon what theory the verdict was returned:</p> <p>[13] Id.—Evidence—Conduct and Habit of Conductor.—In such a ease, evidence as to the previous conduct and habit of the. conductor as to sitting down and talking to the passengers was improperly received, not only because the matter was not in issue, but also because his habit was not competent.</p>

<p>[l] Appeal—Notice—Failure to Name Court.—In view of the fact that the only court in which an appeal in any ease can be heard is determined by constitutional provision, and in view of the further constitutional provision that no appeal taken to the supreme court or to a district court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, an appeal will not be dismissed because the notice of appeal did not state to what court the appeal was taken.</p>

<p>[1] Workmen’s Compensation Act—Playful or Malicious Act of Fellow-employee—Injury Outside of Employment.—An injury-received by an employee while engaged in his work from being bit in the eye by one of several- grapes either playfully or maliciously thrown by a fellow-employee at another employee was not an injury arising out of, or in the course of, his employment within the meaning of the -Workmen’s Compensation Act.</p> <p>1. Whether injuries caused by sportive acts are injuries arising out of, and in the course of, the employment, notes, 13 A. L. B. 540; L. E. A. 1918E, 504.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Charles 0. Busick, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—Friendly Wrestling Match— Injury Outside of Employment.—An injury received by an employee while in the performance of his duties from being accidentally fallen upon by two fellow-employees who were engaged in a wrestling match, which was not caused by any dispute over the work or over anything connected with the employment, was not an injury arising out of, or in the course of, his employment within the meaning of the Workmen’s Compensation Act.</p> <p>1. Right to compensation in ease of injury sustained through horse-play or fooling, under workmen’s compensation statutes, notes, 13 A. L. R. 540; L. R. A. 1918E, 504.</p>

<p>[1] Motor Vehicle Act — Speed Limits — Turning ot Corners — Bules Inapplicable to Fire Apparatus.—The general restrictions as to speed and turning of corners applicable to vehicular traffic contained in the Motor Vehicle Act (Stats. 1917, p. 382), do not apply to a fire apparatus responding to an alarm, in view of the fundamental rule of construction that a statute is not applicable to the government or its agencies unless expressly included by name.</p> <p>[2] Id.—Eight op Way op Fire Apparatus—Construction op Act.— The provision of section 20 (m) of the Motor Vehicle Act that fire apparatus while being operated as such shall have right of way with due regard to the safety of the public has reference to the person required to yield such right of way, and notice to him is essential and a reasonable opportunity to stop or otherwise yield the right of way, necessary in order to charge him with the obligation to give precedence to the fire apparatus.</p> <p>2. Care required of driver of street-car or other vehicle to avoid collision with fire apparatus, notes, Ann, Cas. 1918A, 290; 19 Xi. B. A. (N. S.) 623; L. B. A. 1917E, 415; of fire apparatus to avoid collision with street-car or other vehicle 'in street, note,' Ann. Cas. 1913E, 231.</p>

<p>[1] Criminal Law—Lewd, and Lascivious Act—Sufficiency of Evidence.—On this appeal from a judgment of conviction of violation of section 288 of the Penal Code, the testimony of the complaining witness is held not to be so inherently improbable as to be unworthy of belief, although it reveals an exceptional depth of moral degeneracy.</p> <p>[2] Id.—Construction of Section 288, Penal Code — Erroneous Reference.—-The reference to “Part Two” in section 288 of the Penal Code, making it an offense to commit any lewd or lascivious act “other than the acts constituting other crimes provided for in Part Two of this code,” should be construed as a reference to “Part One,” as the reference was either a legislative oversight or a clerical misprision.</p> <p>[3] Id.—Complaining Witness—Accomplice.—In a prosecution for violation of section 288 of the P'enal Code, the complaining witness cannot be an accomplice regardless of his mental capacity, moral insight, or acquiescence, whore the defendant is over the age of fourteen years, since the gist of the offense is the crime against a child under the age of fourteen years.</p> <p>[4] Id.—Evidence—Testimony of Complaining Witness—Corroboration.-—In a prosecution for violation of section 288 of the Penal Code corroboration of the testimony of the complaining witness is not required.</p> <p>[5] Id.—Acts Committed After Age of Fourteen Tears—Corroboration.—In a prosecution for violation of section 288 of the Penal Code corroboration is not required of the testimony of the complaining witness relating to the commission of similar acts by the defendant subsequent to the act charged and after the witness became of the age of fourteen years, admitted to show the disposition of the defendant to commit the act charged.</p> <p>5. Age of alleged accomplice in sexual offense as affecting the necessity of corroboration of testimony, note, I». R. A. 1915E, 1222.</p> <p>[6] Id.—Letters of Defendant—Construction—Instruction.—In a prosecution for violation of section 288 of the Penal Code the defendant was not entitled to an instruction that the jury were to give an innocent construction to letters written by defendant to the complaining witness because the mother of the witness gave them such a construction when they were received and before she was informed of the alleged acts.</p> <p>[7] Id.—Other Offenses—Effect of Proof—Instruction.—An instruction that testimony had been introduced tending to prove other lewd acts for the purpose of proving the lewd and lascivious disposition of the defendant, and not to prove distinct offenses, but such evidence was corroborative evidence tending to support the offense charged, was not erroneous.</p> <p>[8] Id.—Jury — Exercise of Peremptory Challenges — Departure from Code Procedure—Lack of Prejudice.—A defendant cannot complain of an alleged violation of section 1088 of the Penal Code, which provides that first the people and then the defendant shall take a peremptory challenge, by the action of the court in permitting the district attorney to exercise one peremptory challenge after passing his challenge several times, where the defendant after exercising nine of his peremptory challenges, leaving one unexereised, and the state exercising only the one challenge, expressed satisfaction with the jury.</p>

<p>[1] Appeal — Contract by Deceased Person — Performance by Executors—Appealable Order.—An order made under section 1597 et seq. of the Code of Civil Procedure directing the executors of a will to transfer and deliver to a Ijhird party certain assets of the estate, based on a contract for the sale thereof alleged to have been made by the testator, is an appealable order, although not specified as such in subdivision 3 of section 963 of the Code of Civil Procedure, specifying the probate judgments and orders from which an appeal may be taken.</p> <p>[2] Estates of Deceased Persons — Proceeding fob Enforcement of Contract—Nature of Judgment.—The proceeding authorized by section 1597 of the Code of Civil Procedure is practically a proceeding in equity terminating in a final judgment having the full force and effect of a final judgment in an action for specific performance of a contract.</p>

<p>[1] Negligence — Public Exposition — Safe Condition of Grounds and Thoroughfares.—A duty is imposed upon a company conducting a public exposition to use ordinary care to keep its grounds, including the thoroughfares, in a safe condition for its invitees, even if there is no duty, as matter of law, resting upon it to provide separate thoroughfares for vehicles and pedestrians.</p> <p>[2] Id.—Injury to Exposition Visitor—Act of Bailee of Concessionaire—Pleading—Sufficiency of Complaint.—A complaint in an action against an exposition company for damages for personal injuries received by a visitor while walking along one of the thoroughfares used by pedestrians, from being struck by an electric carriage operated by another visitor and rented from a concessionaire, states a cause of action, where it is alleged, in addition to the failure to provide separate thoroughfares for pedestrians and electric cars, that the defendant was negligent in the granting of the concession, the granting of permission to operate it, and the granting of permission to the concessionaire to allow persons unskilled in the operation of such ears to operate them upon the grounds among the pedestrians.</p> <p>1. Duty of owners and managers of exhibitions and places of amusement as to safety and protection of patrons, notes, 5 Ann. Cas. 926; 15 Ann. Cas. 517; Ann. Cas. 1915B, 546; Ann. Cas. 1917D, 931, 933; Ann. Cas. 191SE, 1073.</p> <p>2. Liability of one maintaining a place of amusement to which public are invited for negligence of concessionaire, notes, 14 L. R. A. (N. S.) 284;' 32 L, R. A. (N. S.) 717; L. R. A. 1915F, 696.</p> <p>[3] Bailment—Negligence of Bailee—Liability of Bailor.—The rule that á bailor is not liable to a third person for injuries caused through the negligent use, of the bailment is not applicable where the bailor is under a duty to use ordinary care to protect the third person from injury.</p> <p>[4] Negligence—Dangerous Nature of Concession—Knowledge of Exposition Company—Liability to Invitee.—An exposition company is liable for injuries received by an invitee from the operation by another invitee of an electric carriage, which the latter had rented from a concessionaire, where the vehicle was a dangerous appliance when in the hands of one unskilled in its management and the company had knowledge of such fact.</p>

<p>[1] Counties—Charter—Constitutional Law.—While a county charter should be consistent with the constitution, the whole charter cannot be declared null and void because it may contain certain provisions that are inconsistent with the constitution at the time of its adoption.</p> <p>[2] Id.—Charter of County of Tehama—-Failure to Provide for Deputy County Clerks—Validity.—The charter of the county of Tehama adopted pursuant to section 7% of article XI of the constitution is not totally invalid because it contains no provision for the fixing and regulation, by the board of supervisors, of the manner of appointment and removal, the number, or the compensation of deputy county clerks, as required by such section of the constitution.</p> <p>[3] Id.—Appointment and Compensation of Deputy County Clerk' —Applicability of General Law.—In view of the provisions of section 7% of article XI of the constitution, relating to county charters superseding general laws as to matters provided for in such charters, the general law contained in section 4266 of the Political Code empowering the county clerk to appoint his own deputy and fixing the compensation for such deputy is applicable to the county of Tehama and has not been superseded by the county charter, which contains no valid provision for either the appointment or compensation of such deputy.</p>

<p>APPLICATION for a Writ of Mandamus to compel a county auditor to draw a salary warrant. Granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Taxation — Invalid Sale to State — Continuance op Lien — Judgment.—In an action by the state controller to ) recover the possession of real property which had been conveyed to the state for delinquent taxes, a judgment decreeing that the state had no interest in or lien upon the property because of the invalidity of the original tax sale to the state is erroneous, since the lien of the state remains as a burden on the property until discharge by payment or by a valid sale to the state.</p> <p>[2] Id.—Action by State—Possession op Property—Appirmative Belief—Bight op Dependant.—In an action by the' state controller acting under the provisions of section 3773 of the Political Code to recover the possession and the rents and profits of real property which had been deeded to the state for delinquent taxes, the defendant cannot, in the absence of statutory authority, convert the action into one to quiet title and obtain affirmative relief therein against the state.</p> <p>[3] Id.—Consent op State — Provisions Authorizing Cross-complaints Insufficient.—The provisions of the law authorizing cross-complaints do not give the consent of the state to a cross-complaint to quiet title in an action brought by the state controller, representing the state, for the possession and for an accounting of the rents and profits of real property deeded to the state for delinquent taxes.</p> <p>[4] Courts—Actions Concerning Possession op Beal Estate— Jurisdiction—Constitutional Law.—Where the constitution itself has expressly defined and fixed the exclusive jurisdiction of its courts with reference to actions concerning the possession of real estate, the legislature cannot, under the general power to legislate, infringe upon the jurisdictional limits established by the constitution itself, by giving jurisdiction to superior courts of counties other than those in which the property is located.</p> <p>[5] Taxation—Becovery op Possession op Beal Property—Jurisdiction—Section 3773, Political Code, TTnconstitutional.—Section 3773 of the Political Code, in so far as it attempts to give jurisdiction to the superior court of Sacramento County of actions by the state controller for the possession of real property located in other counties which has been conveyed to the state for delinquent taxes, is void, in view of section 5 of article VI of the constitution, which gives exclusive jurisdiction of actions to quiet title or for the possession of real property to the superior court of the county in which the property is situated.</p> <p>[6] Id.—Recovery of Rents—Local Character of Action not Destroyed.—The local character of an action on behalf of the state to recover the possession of real property which has been conveyed to it for delinquent taxes, is not affected by the fact that the action is also one for the rents, issues, and profits of the property, since the action in so far as it relates to the rents is essentially one to quiet title within the meaning of the constitution.</p> <p>[7] Pleading—Action for Rents—Issue of Title—Character of Action.—An action for rents and profits of real property where the right to the title is involved is not a transitory action.</p>

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

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

<p>[1] Criminal Law—Violation of Syndicalism Act—Indictment— Specification of Acts.—An indictment charging a defendant with the commission of acts in violation of subdivision 5 of section 2 of the Criminal Syndicalism Act of 1919 (Stats. 1919', p. 281), should contain a specification of such acts.</p> <p>[2] Id.—Membership of Unlawful Organization — Indictment — Failure to State Name—Lack of Prejudice.—The failure to name the organization in an indictment charging a defendant with being a member of an organization denounced by subdivision 4 of section 2 of the Criminal Syndicalism Act, is not a sufficient ground for a reversal of the judgment of conviction, in view of article VI, section 4%, of the constitution, where the indictment sufficiently charged the offense in general terms, and the defendant, who acted as his own counsel, was advised by the district attorney at the beginning of the trial as to the particular organization referred to in the indictment.</p> <p>[3] Id.—Character of Organization—Evidence—Books and Papers. In a prosecution under an indictment charging a defendant with being a member of an organization denounced by subdivision 4 of section 2 of the Criminal Syndicalism Act, books, pamphlets, and papers advocating criminal syndicalism and sabotage found at the headquarters of the organization are admissible as tending to show the character of the organization.</p> <p>[4] Id'.—Question for Jury.—In such a prosecution, the question whether or not the particular organization was organized to advocate, teach, aid, and abet criminal syndicalism is for the jury to determine, and not for the court to infer as a matter of law.</p> <p>[5] Id.—Membership of Unlawful Organization—Sufficiency of Evidence.—In this prosecution under an indictment containing four counts based upon subdivisions 1, 2, 4, and 5 of section 2 of the Criminal Syndicalism Act, the evidence is held sufficient to sustain the conviction on the count of knowingly belonging to an organization advocating criminal syndicalism and sabotage, but not sufficient to support the verdict on the other counts.</p> <p>[6] ID .—Advocacy of Doctrines—Indictment—Specific Acts.—An indictment charging a defendant with advocating the doctrine of criminal syndicalism and with printing or circulating books or pamphlets relating to such doctrine should designate the specific acts, and name and describe the books and pamphlets, and the statement of the offenses in the language of the statute is not sufficient.</p> <p>[7] Id.—Printing or Circulation of Literature—Character of— Relative Duty of Court and Jury.—In prosecutions for printing or circulating pamphlets, books, or other articles advocating criminal syndicalism, if the articles are in plain and unequivocal terms, it is the duty of the court to construe the meaning and effect of the documents for the benefit of the jury, but if the instruments are susceptible of two interpretations, it is for the jury to say, on proper instructions, whether the documents are unlawful.</p>

<p>[1] Sales—Recovery of Deposit—Pleading—Theory op Action— Inapplicability op Code Provisions.—Where an action to recover the deposit paid under an agreement to “furnish and install” gas engines was not upon a.n express warranty, or the action primarily one to reform a contract and recover damages for its breach as reformed, neither the provisions of section 3308 of the Civil Code, which establishes the measure of damages for the breach of an agreement by the seller to sell personal property not fully paid for in advance, -nor of section 3313 of the same code, which prescribes the rule of compensation for the detriment caused by the breach of a warranty of the quality of personal property, were applicable.</p> <p>[2] Id.—Warranty op Manufactured. Article—Inapplicability of Code Section.—An action to recover the deposit paid under an agreement to “furnish and install” gas engines does not fall within section 1770 of the Civil Code, which declares that one who manufactures an article -under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose, in the absence of an allegation that the defendant manufactured or agreed to manufacture the engines.</p> <p>2. Implied warranty by manufacturer or vendor of machinery or apparatus not in itself defective of fitness for use under existing conditions, note, 6 L. R. A. (N. S.) 180.</p> <p>[3] Id.—Contract for Sale of Gas Engines—Rescission—Refusal to Accept.—In view of section 1689 of the Civil Code, which declares that a party to a contract may rescind it where through the fault of the party as to whom he rescinds the consideration for his obligation fails, in whole or in part, the refusal of the purchaser to accept engines tendered which would not develop the stipulated horse-power was a rescission of the contract, without an express statement of rescission.</p> <p>[4] Id.—Failure of Consideration—Action for Money had and Received.—Where a claim for the recovery of a deposit paid on account of the purchase price of gas engines is based upon an alleged total failure of consideration in that the engine tendered did not comply with those to be furnished under the contract, an action for money had and received is maintainable, since in such a ease the law raises a promise on the part of the seller to repay the money, and without any previous request.</p> <p>[5] Id.—Total Failure of Consideration—Recovery of Deposit— Formal Rescission Unnecessary.—Where gas engines tendered were of no value to the purchaser because of their failure to develop the stipulated horse-power, the failure of consideration was total, and no formal rescission of the contract was necessary before suit to recover the deposit.</p> <p>[6] Contract—Mutual Mistake—Reformation.—In view of section 3299 of the Civil Code, a contract in writing may be revised for a mutual mistake, so as to truly express the intention of the parties.</p> <p>[7] Sales — Recovery of Deposit — Reformation of Contract — Mutual Mistake—Finding.—In an action to recover the deposit paid under a contract for the purchase of gas engines, wherein the plaintiff also sought a reformation of the contract so as to include a provision as to horse-power alleged to have been omitted by mutual mistake, a finding that the omitted provision was a mistake on the part of the parties to the contract was the equivalent of a finding that it was a mutual mistake.</p> <p>[8] Contract — Reformation — When Unnecessary. — Where the reformation of a contract is not for the purpose of enforcing it as reformed or to recover damages for its breach, but to show a total failure of consideration, it is not necessary that it be formally revised.</p> <p>[9] Sales — Reformation of Contract — Finding.—A finding in an action to reform a contract for the purchase of gas engines that plaintiff executed the contract in the “belief” that it contained a provision calling for the development by the engines of certain brake horse-power, justifies a reformation of the contract, in view of the general finding that the omission was a mistake on the part of the parties.</p> <p>6. Mutual mistake as ground for reformation of written instruments, notes, 30 Am. St. Rep. 621; 117 Am. St. Rep. 227; 3 Ann, Cas. 444.</p> <p>[10] lb.-—Pleading — Overruling of Demurrer — Error Without Prejudice.—In such action, error in overruling the demurrer to the complaint for failure to allege whether the omission of the provision as to the engines developing a certain horse-power was a mutual mistake, or a mistake of the plaintiff which the defendant at the time knew or suspected, was not prejudicial, where the answer contained a denial that there was any mistake made by either party and alleged that the contract embodied all conditions intended to be contained therein.</p>

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

<p>[1] Counties—Formation of New County-—Petition—Compliance With Acts of 1907 and 1909.-—A petition for the organization of a new county out of territory .wholly within the territory of an existing county which fails to comply with the requirements of the act of 1907, providing for the formation of new counties (Stats. 1907, p. 275), and also with the requirements of the amendatory act of 1909 (Stats. 1909, p. 194), is insufficient and properly denied.</p>

<p>[1] Mandamus—Denial by District Court of Appeal—Remedy in Supreme Court.'—Where a petition for a writ of mandate is denied by the district court of appeal, the remedy of the petitioner in the supreme court is by way of petition within the sixty days allowed by the constitution for an order vacating the judgment of the district court and directing a rehearing of the ease in the supreme court.</p>

<p>[1] Public Lands—Title in- United States—Taxation by State.— Land belonging to the United States is not subject to taxation by the state, and a sale of such land for taxes levied thereon before it is listed to the state and before the applicant to purchase the land from the state is in possession is void.</p> <p>[2] Id.—Conflicting Claimants — Holder of Prior Certificate — Laches—Statute of Limitations.—A claim of title to state land based upon a certificate of purchase issued prior to the listing of the land to the state by the Hnited States is neither barred by laches nor by the provisions of section 343 of the Code of Civil Procedure, as against a claim under a subsequent certificate of purchase issued after the land had been sold to the state under a void tax sale, where the latter merely paid the taxes for several years and neither of the claimants had ever been in possession or made any claim or demand upon the other until the latter commenced an action to quiet title.</p> <p>[3] Quieting Title—Adverse Claim.—One holding the legal title or a paramount claim to the legal title is not called upon to take action against a hostile claim which is not of a nature to ripen into a valid adverse title.</p> <p>1. . Liability to state taxation of Hnited States property granted or sold by government, but to which government still holds title, note, 11 Ann. Cas. 381.</p> <p>[4] Id.—Mebe Cloud upon Title—Continuing Cause op Action.— An outstanding adverse claim -which amounts only to a cloud upon the title is a continuing cause of action and is not barred by lapse of time until the hostile claim is asserted in some manner to jeopardize the superior title, and so long as the claim lies dormant and inactive the owner of the superior title has the privilege of allowing it to stand indefinitely, and each day’s assertion of the claim gives a renewed cause of action to quiet title until such action is brought.</p>

<p>[1] Insane Persons—Commitments—Place of Hearing.—Under section 2185c of the Political Code, providing that when a person accused of being so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control is brought before the superior court, the judge must by order fix such time and place for the hearing and examination in open court as will give a reasonable opportunity for the production and examination of witnesses, the court may in its discretion designate any place other than that fixed in pursuance of section 142 of the Code of Civil Procedure.</p> <p>[2] Id.-—Loss of Power of Self-control—Intemperate Use of Narcotics and Stimulants—Trial by Jury.—A person accused under section 2185c of the Political Code of being so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control is not entitled to a trial by a jury under section 2174 of such code, since such section applies only to proceedings to adjudge a person insane for commitment as an insane person.</p> <p>[3] Id.—Sufficiency of Affidavit.—An affidavit for the arrest of a person under section 2185c of the Political Code, reciting that the accused has been addicted to the excessive use of intoxicating liquors for more than five years last past and has been continuously intoxicated for six months preceding the making of the affidavit, sufficiently shows that the accused is subject to dipsomania or inebriety to bring him within the purview of the statute and to give the court jurisdiction to proceed with the hearing and examination.</p>

<p>[1] Corporations—Salary of Manager—Disqualification of Director—Estoppel.—A corporation which has received the benefit of the services of its general manager is estopped from asserting that one of its directors who voted for a resolution providing for an increased salary was not qualified to act as director.</p> <p>[2] Id.—Bight to Increased Salary—Effect of Besolution.—Where a resolution fixing the salary of the general manager of a corporation was limited in its operation to a period of six months, and thereafter the manager was paid an increased salary for a period of one year, the corporation cannot recover the amount of the increase, where more than three months after the expiration of the six-months period succeeding the passage of a resolution raising the salary the board of directors unanimously passed a resolution declaring that all payments made were fully authorized and that the same salary be continued the remainder of the year.</p>

PROCEEDINGS on Habeas Corpus to test the validity of a conviction of a misdemeanor in the Justice’s Court of the City of Berkeley. Writ discharged and petitioner remanded. The facts are stated in the opinion of the court.

<p>[1] Appeal—Judgment of Dismissal—Point Baised by Demurrer— Failure to Mention in Brief.—Where, on an appeal from a judgment of dismissal entered after demurrer sustained without leave to amend, the respondent fails to mention in her brief the point of defect of parties raised by the demurrer, it will be regarded as abandoned.</p> <p>[2] Husband and Wife—Grant Deed—Breach of Covenant—Pleading—Parties.—Where a husband and wife execute a deed as joint and several obligors, the wife is severally liable and may be sued alone for a breach of covenant' for quiet enjoyment.</p> <p>[3] Deed—Breach of Contract of Seisin—Venue.—An action for damages for breach of a contract of seisin is not an action to try title in the sense that requires the suit to be brought in a court of competent jurisdiction of the state in which the land is situated.</p> <p>[4] Id.-—Breach of Covenant for Quiet Enjoyment.—In the absence from a deed of a stipulation providing therefor, the question whether an express covenant for quiet enjoyment runs with the land must be determined by the lex situs rather than the lex loci contractus.</p> <p>[5] Id.—Covenant Bunning With Land—Presumption as to Law of Another State.—In an action for breach of a covenant for quiet enjoyment of land situated in another state, where no statute of such state is pleaded or called to the attention of the court, the presumption is that the law of such state is similar to the law of this state, namely, that such a covenant runs with the land.</p> <p>[6] Id.—Breach op ' Covenant op Quiet Enjoyment—Venue.—While a covenant for quiet enjoyment runs with the land, it is interrupted by and ceases upon a breach thereof, and where the breach occurs while the original grantee still holds the interest originally conveyed to him by the grantor, the claim, assuming that it arises from the fact that the broken covenant runs with the land, becomes a chose in action and transitory and enforceable in any jurisdiction in which the grantor may be found.</p> <p>[7] - Id.—Action by Original Grantee—Venue.—The original grantee under a deed executed in this state to land situated in the state of Washington may recover for breach of covenant for quiet enjoyment, irrespective of whether the covenant runs with the land, notwithstanding the laws of Washington declare such a covenant to be an express covenant and hence for all purposes substantially a part of the deed, since such covenant is one of agreement.</p> <p>[8] Id.—Action by Assignee op Original Grantee—Venue.—Where an assignee or grantee of the original grantee seeks recovery for a breach of a covenant for quiet enjoyment while he holds the title, a different rule prevails, for in such a ease there is no privity of contract between the original grantor and the assignee and the latter’s right to enforce the covenant rests upon privity of estate, and, in the absence of a contract providing that the covenant should inure to his benefit, his right for relief for its breach would be dependent upon the covenant running with the land.</p> <p>[9] Id.—Construction op Deed—Law Controlling.—The effect and construction to be given a deed must be determined by the laws of the state in which the lands it conveys are located, irrespective of where it may have been executed or the grantors reside.</p> <p>[10] Id.—Deed to Land in Washington — Construction op Covenants.—Covenants in a deed executed in this state to land situated in the state of Washington must be construed and their scope ascertained from and measured by the laws of such state, and the words “bargain, sell and convey” contained in such a deed constitute an express covenant for quiet enjoyment, and recovery for breach may be had as if expressly inserted therein.</p> <p>[11] Id.—Inability to Obtain Possession — Paramount Title — Breach op Covenant.—Failure to obtain possession by reason of a superior title in a third person is a breach of a covenant for quiet enjoyment.</p>

<p>[1] Estates of Deceased Persons — Succession — Children of Deceased Sister—Construction of Code.-—The separate property of a widow dying intestate who leaves neither issue, father, mother, brother, nor sister descends to the children of a deceased sister as next of kin under subdivision 5 of section 1386 of the Civil Code, to the exclusion of grandchildren of another deceased sister, since subdivision 3 of such section giving right of representation only applies where the deceased leaves a surviving brother or sister.</p> <p>[2] lb.—Community Property—Vesting of Interests of Deceased Spouses.—Where a widow dies intestate leaving property which was the community property of herself and her predeceased husband, the interests of the heirs of the deceased spouses vest independently of each other under subdivision 8 of section 1386 of the Civil Code, and the heirs of the predeceased husband are entitled to the one-half without regard to whether the other half vests in a father, mother, brothers, or sisters of the widow.</p> <p>[3] Id.—Children of Deceased Brothers and Sisters—Bight of Succession to Community Property—Construction of Code.— Under subdivision 8 of section 1386 of the Civil Code, there need be no brother or sister surviving in order that the descendants of deceased brothers and sisters may inherit the one-half of the community property of a deceased spouse, who left neither issue nor parents.</p> <p>[4] lb.—Petition for Partial Distribution — Outstanding Unallowed Claim — Sufficiency of Petition.—A petition for partial distribution presented in accordance with the terms of section 1663 of the Code of Civil Procedure, added in 1917, is not insufficient, because it shows an outstanding claim not allowed, where it appears that sufficient property has been set aside to cover it, since it is not a requisite that all claims shall have been allowed or disallowed, but only that the court satisfy itself that no injury can result from distribution.</p> <p>[5] Id.—Determination of Heirship —■ Compliance With Section 1664, Code of Civil Procedure.—A petition for partial distribution under section 1663 of the Code of Civil Procedure is not insufficient because of failure to comply with section 1664, relative to the determination of heirship.</p> <p>[6] Id.—Payment of Inheritance Taxes—Sufficiency of Order.— An order for partial distribution directing that out of the distributed properties there shall be deducted and paid the inheritance taxes due from each of the distributees, sufficiently satisfies the requirements of section 1669 of the Code of Civil Procedure.</p> <p>[7] Id.—Evidence—Pedigree—Construction of Code.—The provisions of sections 1852 and subdivision 4 of section 1870 of the Code of Civil Procedure do not prescribe the sole method by which pedigree must be proved, and do not exclude testimony on that subject by one having primary knowledge of the facts and who is competent to testify.</p> <p>[8] Id.—Findings—Heirship.—In a proceeding for partial distribution, a general finding that all the allegations of the petition are true is controlled by a special finding that certain named persons are the heirs.</p>

<p>[1] Workmen's Compensation Act — Dependent Minor — Meretricious Relationship With Mother.—Under the Workmen’s Compensation Act a minor is entitled to compensation for the death of an employee as a dependent member of his household in good faith, although the relations between the.mother of the minor and the employee were meretricious, where they all lived together and he supported the mother and minor as if they were his own wife and daughter.</p> <p>[2] Id.—Support op Minor—Liability op Father—Immateriality.— Under the Workmen’s Compensation Act the right of a minor to compensation as a dependent member of the family of an employee is not affected by the fact that the father of the minor is legally liable for its support under sections 205 and 206 of the Civil Code.</p> <p>1. Who are dependents within meaning of Workmen’s Compensation Act, notes, Ann. Cas. 1913E, 480; Ann. Cas. 1918B, 479; 13 A. L. R. 686; L. R. A. 1916A, 121, 163, 248; L. R. A. 1917D, 157; L. R. A. 1918F, 483.</p> <p>“Child” in statute relating to workmen’s compensation as including illegitimate child, note, Ann. Cas. 1918B, 258.</p>

Denied. The petitioner in violation of an order of court refused to turn over to the guardian of the estates of her minor children certain moneys belonging to them, on the grounds that such guardian was not their legally appointed guardian and that she, as their mother, was entitled to letters of guardianship of their persons and estates.

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

<p>[1] Public Lands — Uplands Bordering on Lake — Patent.—A United States patent to uplands bordering on a lake conveys title to the actual margin of the lake, although the surveyed meander line does not conform to the actual water line of the lake, and a state patent under the act of March 24, 1893, to land between such meander line and the lake, conveys no title, in the absence of proof of a recession or drainage of the waters of the lake.</p> <p>[2] Vendor and Vendee—Executory Contract—Prior Approval op Title.—An approval of title by a purchaser before entering into a contract of purchase does not, in the absence of an express agreement, or of facts constituting an estoppel, operate as a waiver of the right to a deed carrying the title, on the final execution of the contract.</p> <p>1. Waters and watercourses as boundaries, notes, 30 Am. Dec. 286; 27 Am. St. Rep. 56.</p> <p>[3] Id.—Payment and Acceptance op Deed — Prior Approval op Title.—Ordinarily the payment of the purchase price and acceptance of a deed to land, after approval of title by the purchaser, precludes him from rescinding or recovering the purchase money upon failure of his title.</p> <p>[4] Id.—-Merchantable Title—Implied Agreement.—In ease of an executory contract, there is an implied agreement on the part of the vendor to convey a merchantable title, and failure to do so on demand and upon tender of final payment is a breach of the contract which justifies rescission and recovery of the money paid by the purchaser.</p> <p>[5] Id.—Placing op Deed in Escrow—Contract not Executed.— The placing in escrow of a grant, bargain, and sale deed without express covenants, to be delivered to the grantee upon the completion of stated payments, and providing for a forfeiture of all rights of the grantee for failure to make any payments within thirty days after' maturity, does not, on its face,- constitute an executed conveyance such as to merge the implied agreement of the contract to convey a good title into the covenants of the deed.</p> <p>[6] Id.—Examination and Acceptance op Imperpect Title — Estoppel.—An examination and acceptance of an imperfect title, precedent to entering upon a contract to purchase, might operate as an estoppel against rescission, either by express agreement or under circumstances giving substantial advantage to the purchaser, or operating to the detriment of the vendor.</p> <p>[7] Id.—Rescission—Waiver—Knowledge.—A waiver of right of rescission implies knowledge, actual or constructive, of the existence of the right and an intention to relinquish it.</p> <p>[8] Id.—Notice op Rescission—Want op Laches.—A purchaser is not guilty of laches in failing to give notice of rescission before the time has arrived for final payment and delivery of the deed, since the vendor has until such time to make his title good.</p> <p>8. Necessity and effect of notice of rescission before party can be. placed in default as to time for performance of contract, note, 4 A. Xi, ¡R, 822.</p>

<p>[1] Appeal—Notice—Date op Entry op Judgment—Incorrect Bbcital.—An appeal from a judgment of dismissal after the sustaining of a demurrer to the complaint without leave to amend is not open to the objection that the appeal was taken from the order sustaining the demurrer, and not from the judgment, because the notice incorrectly recited the date of the entry of the judgment as being the date on which the demurrer was sustained, where but one judgment was entered and the notice gave the correct book, page, and date of entry thereof.</p> <p>[2] Slander—Pleading—Sufficiency of Complaint.—In an action for slander the complaint states a cause of action where it alleges that plaintiff is a skilled teacher, that defendant stated to a newspaper reporter, knowing and intending that the statement would be given further circulation through the public press, that plaintiff was to be dropped from the staff of city school-teachers for the reason that the city superintendent considered his position as it existed “a weak spot in the public school system of instruction,” that such statement was false, malicious, and unprivileged, and that the defendant thereby publicly accused plaintiff of being unfit and incompetent to be employed in his profession.</p> <p>2. Sufficiency of complaint in action for slander as to averments of publication, note, Ann. Cas. 1918B, 504.</p> <p>[3] lb.—Definition of Offense.—Slander is a false and unprivileged publication, other than libel, which tends to directly injure one in respect to his office, reputation or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit, or which by natural consequence causes actual damage.</p> <p>[á] Id.—General and Special Damages—'Pleading.—In an action for slander a sufficient allegation of general and special damages is made by the averment that the false, malicious, and unprivileged publication by the defendant exposed plaintiff to hatred, contempt, ridicule, and obloquy, and was made by the defendant to so expose him, and that by reason of the slander plaintiff has suffered great mental anguish, and has been, and is, and from henceforth will be greatly injured and prejudiced in his reputation as a school-teacher, and has lost and will continue to lose and be deprived of great gains and profits which would otherwise have accrued to him in his calling, occupation and profession.</p> <p>[5] lb.—Amendment of Complaint — Statute of Limitations.—An action for slander is not barred by section 340 of the Code of Civil Procedure by reason of the amendment of the complaint after the expiration of the period provided by such section, where the original complaint was filed within time, and the only difference in the two statements of the cause of action was that in the original complaint it was asserted that defendant knowing and intending that the words would be published in a newspaper communicated them to a reporter, and they were so published, the article, quoting the words being given in full, while the amended complaint alleged that the false and unprivileged communication was made to the same party, the defendant knowing and intending that it would be given further circulation through the public press, the exact words being set out.</p> <p>4. Eight to recover damages for mental or physical suffering in actions for libel and slander, note, Ann, Gas. 19140, 291.</p>

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

<p>[1] Public Becords—Preliminary Estimates and Details of Municipal Water Supply System—Hbtch Hetchy Project of San Francisco — Character of Documents and Data Before Approval by City Engineer.—The preliminary estimates, plans, drawings, maps, and other data prepared by the assistants and subordinates of the city engineer of the city and county of San Francisco for submission to him for his approval in connection ■with the acquisition and construction of the municipal water supply system, known as the -Heteh Hetehy project, of which project the engineer is in charge as an officer of the board of public works, are not, before official approval, “public records in the office of an officer” open to inspection by any citizen of the state, within the meaning of sections 1888, 1892, 1893, and 1894 of the Code of Civil Procedure, section 1032 of the Political Code, and section 6 of chapter 1 of article "VI and section 13 of article XVI of the charter of the city and county of San Francisco.</p> <p>1. Bight to inspect public records relating to public contracts, notes, 27 L. R. A. 82; 41 I». R. A. (N. S.) 280.</p> <p>[2] Id.—Right of Inspection as “Other Matters” in Office of Public Officer—Construction of Section 1032, Political Code. The preliminary estimates and details prepared by the assistants and subordinates of the city engineer of the city and county of San Francisco for submission to him for his approval in connection with the Heteh Hetehy project are, before approval, of such character as constitutes them “other matters” within the meaning of section 1032 of the Political Code, which provides that the public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any citizen of the state.</p> <p>[3] Id.—Confidential Character Immaterial.—The right of a citizen under section 1032 of the Political Code to inspect preliminary estimates and details in. connection with the acquisition and construction of a municipal water supply system as “other matters in the office of any officer” is not affected by the fact that the engineer had communicated them to the city attorney as confidential matter in pending and anticipated litigation affecting the project.</p> <p>[4] Id.—Inspection by Certain Citizens—Waiver of Privileged Character.—Where preliminary estimates and details in connection with the acquisition and construction of a municipal water supply project were permitted by the city engineer to be inspected by some citizens, the right of other citizens to inspect cannot be refused on the ground that the matter was of a confidential character.</p>

<p>[1-2] Hegligence—Injury to Taxicab Passenger—Excessive Speed — Duty oe Passenger-—-Erroneous Instructions.—In an action for injuries received by a taxicab passenger through the overturning of a machine alleged to have been caused by its operation at an excessive rate of speed, an instruction charging in substance that if plaintiff knew that the automobile was being driven at an unlawful rate of speed, but nevertheless continued voluntarily to ride therein, having the opportunity to leave it, but not doing so, she would not be entitled to recover, and an instruction charging in substance that if plaintiff knew that the automobile was being driven at an unlawful rate of speed in time to have objected and left the machine or to have had the speed decreased prior to the accident, but made no objection and effort to be permitted to leave it, the verdict must be for defendants, constitute erroneous statements of the law.</p> <p>[3] Id.—Presumption oe Hegligence—Bebuttal by Preponderance oe Evidence—Modification oe Instruction.—In such action, an instruction that the “presumption’' is that the overturning of the taxicab occurred through the negligence of the driver, and in order -to rebut the presumption the defendants must show “by a preponderance of evidence” that the overturning was a result of an inevitable casualty or of some cause which human care and foresight could not prevent, was properly modified by changing the word “presumption” to the word “inference” and by striking out the words “by a preponderance of the evidence.”</p> <p>1. Proprietor of taxicab as common carrier, notes, Ann. Cas. 1916D, 767; 4 A. L. B. 1501; 5 L. B. A. (H. S.) 1069.</p>

<p>[1] Waters and Water Bights—State Water Commission—Appli- ■ cation for Appropriation—Arbitrary Denial.—The State Water Commission created by the act of the legislature (Stats. 1913, p. 1012) does not possess and could not be invested with power to arbitrarily deny an application made in conformity to the act for the appropriation of water that is subject to appropriation.</p> <p>[2] Id.-—Permits for Appropriation of Waters—Powers of Commission.—The State Water Commission under the act of 1913 has only supervisorial discretion in the matter of granting permits for the appropriation of unappropriated waters of the state.</p> <p>[3] Id.—Exercise of Discretionary Powers—Mandamus.—Mandamus is a proper remedy to compel a reasonable exercise of such discretionary powers as are granted by the act creating the State Water Commission.</p> <p>[4] Id.—Commission Without Judicial Powers — Constitutional Law.—In view of section 1 of article VI of the constitution vesting in the courts therein mentioned the entire judicial power of the state, it is not within the power of the legislature to give to the State Water Commission the judicial power to establish and declare the right and title to private property. (Concurring opinion of Shaw, C. J.)</p>

<p>[1] Public Lands—Issuance oe Patent—Mandamus—Bes Adjudicata.—In a proceeding in mandamus originally brought in the supreme court to compel the state surveyor-general to issue a patent to land owned by the state based upon a certificate of purchase alleged to have been validated by an act of the legislature, the judgment dismissing the proceeding is conclusive on the state and of the rights of the petitioner under such certificate both as to the claims set forth therein and as to any others which might have been presented.</p> <p>[2] Id.—Contest—Evidence—Judgment in Mandamus Proceeding— Construction.—Where, during the pendency of a contest between private claimants for the right to purchase state lands, one of them brought a mandamus proceeding in the supreme court to compel the state surveyor-general to issue a patent to the petitioner, notwithstanding the pendency of the contest, the judgment dismissing the proceeding is binding upon the petitioner and admissible in the trial of the contest, notwithstanding the recital therein “that the rights of the contestants are not foreclosed by our decision herein” (178 Cal. 554), since from the nature and character of the decision, as well as the context, the term “contestant” was intended to refer to the rights of those who were contesting the claims of the petitioner, and the court did not intend to change the usual effect of the whole opinion and judgment by such clause.</p> <p>[3] Id.—Unsegregated Swamp and Overflowed Land—Sale.—Under section 3493m of the Political Code, swamp and overflowed land is subject to sale, even if unsegregated.</p> <p>[4] Id.—Shore of Little Klamath Lake.—Character of Land.—In this contest between private parties for the right to purchase, as swamp and overflowed land, certain land forming a part of the bed of Little Klamath Lake, the conclusion of the district court of appeal that the government surveys of 1873 established the character of the land as sovereign and not as swamp and overflowed land is held to be erroneous, and that it cannot be declared as a matter of law, from facts of which the court takes judicial notice, that the land is not swamp and overflowed land.</p> <p>[5] Id.—Contest—State not a Party—Judgment—Lack of Estoppel.—While it is made the duty of the state surveyor-general under section 3416 of the Political Code to issue his patent or certificate to the successful party in a contest for the right to purchase state lands, the state is not a party to the contest and is not estopped by the judgment therein.</p> <p>[6] Id.—Stipulation as to Character of Lands—Foreclosure of Inquiry—Evidence.—Where, in a contest for the right to purchase state lands, both parties claimed that the lands were swamp and overflowed lands, such question was not an issue, and evidence as to the character of the lands was, therefore, wholly ineffectual and immaterial.</p> <p>[7] Id.—Decision as to Character of Land — Eights of United States.—A decision of the supreme court in a contest between private persons for the right to purchase land on the shores of Little Klamath Lake that the land is sovereign land is not prejudicial to „ the rights of the state as against the United States growing out of the act of the legislature (Stats. 1903, p. 4), ceding certain lands in such lake to the United States for reclamation purposes, the government not being a party to the proceeding.</p>

<p>[1] Public Lands—Contest—Judgment in Mandamus Pboceeding— Lack of Estoppel.—A judgment in a mandamus proceeding to compel the state surveyor-general to issue a patent to state land that the land was sovereign land is not conclusive upon a contestant of the petitioner’s right to purchase, where such contestant was not a party to the mandamus proceeding.</p>

<p>[1] Appeal—Findings—Insufficiency of Evidence—Specification. Where a bill of exceptions contains nothing which even purports to specify wherein the evidence fails to sustain any of the findings, the contention that the findings are not supported by the evidence cannot be considered.</p> <p>[2] Fixtures'—Question of Fact—Intent.—Whether or not in any ease a building is permanently resting upon the soil so as to be deemed affixed to the land within the meaning of section 660 of the Civil Code remains a question of fact to be determined upon the evidence of that case, and, as a general rule, the intent of the parties is a controlling criterion.</p> <p>[3] Id.—Structures Erected by Licensee — Ownership.—Where structures are erected upon land by a person who occupies the - land with the permission or license of the owner, but who has no estate in the land, consent on the part of the owner of the land that the structures shall remain the property of the person erecting them will be implied in the absence of any other facts or circumstances tending to show a different intention.</p> <p>[4] Id.—Damages for Destruction—Place of Trial.—An action by a licensee to recover damages for the destruction of a dwelling and windmill erected by plaintiff on defendants’ land was not improperly brought and tried in the county where two of the defendants resided, which was not the county in which the land was situated, since the action was based upon plaintiff’s rights to the buildings as personal property.</p> <p>[5] Id.—Liability of Employee of Land Owners.—An employee of land owners who joined with them in demolishing buildings with full knowledge that they belonged to and were the personal property of the plaintiff is liable for damages.</p> <p>[6] Employer and Employee—Joint Tort—Liability.—In the prosecution of actions for canses ex delieto all persons concerned in the commission of the tort may be joined as defendants, or either or any of them may be sued severally, and where an employer and an employee have participated in a tortious act against a third person, they may be jointly sued for damages.</p> <p>[7] Id.—Damages—Evidence—Cost of Removal of Destroyed Buildings.—In an action by a licensee to recover damages for the destruction of a dwelling and a windmill erected by him on land of defendants, where the agreement under which the buildings were erected required the plaintiff to remove the structures to his own land and the plaintiff sought to establish value merely -by proof of the cost of construction, it was error to refuse defendants permission to prove the cost of removal in mitigation of the damage.</p> <p>2. Fixing character of property as realty or personalty, notes, 84 Am. St. Rep. 877; 1 Ann. Cas. 312.</p>

<p>[1] Estates of Deceased Persons—Letters of Administration— Residence of Applicant—Finding—Appeal.—A finding that an applicant for letters of administration was not a ~bona fide resident of the state at the time of his application will not be disturbed on appeal.</p> <p>[2] Id.—Disqualification of Nonresidents—Constitutional Law.— The statute denying to nonresident heirs the right to administer upon the property of decedents- in this state is not in violation of the fourteenth amendment to the federal constitution, which provides that no state shall deprive any person of life, liberty, or property, nor deny to any person within its jurisdiction the equal protection of - the laws.</p> <p>2. Right of nonresidents to act as executors or administrators, notes, 113 Am. St. Rep. 562; 3 Ann. Cas. 988; Ann. Cas. 1912A, 747; . 1 L. R. A. (N. S.) 341.</p>

<p>[l] Contract—Services for Management of Ranch—Compensation Contingent on Profits — Rendition of Yearly Accounts — Waiver.—Where a contract relating to the management of a ranch required the manager to keep proper books of account and to render an account annually, and provided for the payment of all expenses of operation before the payment of any compensation to the manager, and owing to the fact that the profits of the ranch were not in the form of cash, there was insufficient money to pay the manager at the end of the first and second years, and as a result payment of compensation was not asked, but the parties continued under the contract until the sale of the property, the right to a yearly settlement of accounts was waived by both parties, and the manager was entitled to full compensation upon proof of a profit each year equal to or in excess of the compensation.</p> <p>[2] Action for Services—Evidence—Book Accounts.—In an action upon claims alleged to have arisen in connection with the management of a ranch for a corporation, the corporation’s books were admissible as containing the first permanent entries of the transactions in question, where the correctness of the books were attested by the secretary who made the entries and by the manager who furnished the original data from which the entries were made.</p> <p>[S] Id.—Profits of Ranch—Increase in Stock and Produce—Construction of Contract.—Under a contract providing for the payment of all expenses of operation of a ranch before the payment of any compensation to the manager, the increased value of stock or produce on hand at the end of a given year over the value of stock or produce on hand at the end of the preceding • year is to be treated as profits.</p> <p>2. Admissibility of party’s books of account as evidence in his favor, note, 52 Ii. R. A. 545.</p>

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

<p>APPLICATION for a Writ'of Supersedeas to stay foreclosure sale. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Community Property—Rebuttal op Presumption—Degree op Proof.—While the presumption of community property created by section 164 of the Civil Code can only be overcome by clear and satisfactory proof, it is incumbent on the party seeking to rebut the presumption to do no more than to produce such legal evidence as, under all the circumstances of the particular case, would ordinarily produce conviction to an unprejudiced mind.</p> <p>[2] Id.—Determination op Suppicienoy op Evidence—Question por Trial Court.—Whether or not the evidence offered to overcome the presumption of community property is clear and convincing is a question for the trial court, and its determination upon conflicting evidence is not open to review on appeal.</p> <p>[3] Id.—Separate Property—Suppicienoy op Evidence.—In this proceeding on final distribution, involving the character of the property of an estate, the evidence is held sufficient to overcome the presumption of community property created by section 164 of the Civil- Code and to sustain the decree that the estate was the separate property of the deceased.</p> <p>1. What is community property, note, 126 Am. St. Rep. 99. Whether profits accruing during marriage in connection with property belonging to separate estate of either spouse is community property, note, 31 L. R. A. (N. S.) 1092.</p>

<p>[1] Contbact—Mutual Mistake—Belief—Pleading and Evidence.— A defendant may plead and prove a mutual mistake in the making of a contract which is sought to be enforced against him and be entitled to relief therefrom without asking for a reformation of the contract or having the same reformed.</p> <p>[2] lb.- Sufficiency of Evidence—Question fob Tbial Coubt.—The sufficiency of the evidence to justify the reformation of a contract on the ground of mistake is a question for the trial court.</p> <p>[3] Id.—Wbitten Contract for Sale of Fbuit Ceop—Mutual Mistake—Amount Sold—Sufficiency of Evidence.—In this action for damages for the alleged breach of a written contract for the sale and delivery of one-half of the fruit crop, the finding that there was a mutual mistake in the minds of the parties as to the terms and scope of the contract is held sufficiently supported by the evidence.</p> <p>1. Mutual mistake as ground for reformation of written instruments, notes, 30 Am. St. Rep. 621; 117 Am. St. Rep. 227; 3 Ann. Cas. 444.</p> <p>2. Sufficiency of evidence to warrant reformation of instrument on ground of mutual mistake, note, 19 Ann. Cas. 343.</p>

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

<p>[1] Divorce—Contempt — Bight to Final Decree.—A party to an action for divorce who has willfully disobeyed a lawful order of the court relating to the custody of the minor child of the marriage is not entitled to have the final decree entered until she has purged herself of the contempt.</p> <p>[2] Id.—Construction oe Code.—Section 132 of the Civil Code, which provides that when one year has expired after the entry of the interlocutory decree the court, on motion of either party, may enter the final judgment granting the divorce, does not mean that a party may have a final decree entered when to do so would be a flagrant abuse of the principles of equity and of the due administration of justice, since it is within the contemplation of the section that facts arising subsequently to the granting of the interlocutory judgment should have their influence in determining the right to a final decree.</p> <p>1. Bight to enter final decree of divorce after time fixed by interlocutory decree expires, note, 1 A. L. B. 1591.</p> <p>[3] Contempt—Status op Partt.—A party to an action cannot with right or reason ask the aid and assistance of a court in hearing Ms demands wMle he stands in an attitude of contempt to its legal orders and processes.</p>

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

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

<p>APPLICATION for a Writ of Certiorari to review and annul an order of the Industrial Accident Commission granting a rehearing of an award of compensation. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDING on Habeas Corpus to secure release from custody upon a charge of refusal to pay a municipal license tax. Writ dismissed. The facts are stated in the opinion of the court.

<p>[1] Taxation—Corporate Franchises—Method op Valuation—Discretion op Board op Equalization — Constitutional Law.— Under section 14 of article XIII of the constitution, requiring that all franchises, other than those expressly provided for in the section, shall be assessed “in the manner to be provided by law,” it was permissible for the legislature to commit to the board of equalization the duty of selecting the mode of ascertaining the cash value of the different elements dealt with in determining corporate excess instead of requiring the board to compute assessments according to a value-finding rule prescribed by the legislature.</p> <p>[2] Id.—Assessment Boards—Performance of Official Duty—Presumption.—It is a rule applicable to assessors and to boards having assessing powers that it is presumed that the assessing officers have properly performed the duties entrusted to them, and, consequently, that their assessments are both regularly and correctly made.</p> <p>[3] Id.—Recovery of Franchise Taxes—Basis of Taxation—Burden of Proof.—In an action to recover corporation franchise taxes paid to the state under protest, the burden is upon the plaintiff to prove its contention that the taxes were not based on the valuation of the franchise.</p> <p>[4] Id.—Excessive Taxes—Review.—In the absence of evidence that assessments were fraudulently or mistakenly made, or that an improper method of valuation was pursued, consideration cannot be given to a claim that the taxes were excessive.</p> <p>1. Taxation of corporate franchise in the United States, note, 57 L. R. A. 33.</p>

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

<p>[1] Trial—Continuance—Pendency op Appeal—Validity op Judgment—Discretion.—Where the trial of an action involves the consideration of a previous judgment rendered between the parties to the action, which, if final, would be res adjudicata on some or all of the issues involved in the trial, the trial court in the exercise of a sound discretion may continue the trial of the ease until the final adjudication of the matter in the other action.</p>

<p>[1] Corporations—Wrongful Acts of Agents—Imputed Notice— Applicability of Bule to Officers.—While a corporation is bound by the unlawful or fraudulent acts of its agents within the scope of their employment and notice of such wrongful acts is imputed to the corporation, the rule does not extend to the imputing of such notice to an officer of the corporation without actual notice or connection with the transaction, and in matters affecting his private and independent dealings with the corporation.</p> <p>[2] Id.—Sale of Stock—Undisclosed Representations of Agent— Inapplicability of Bule.—The doctrine of imputed notice of the unlawful and fraudulent acts of the agents of a corporation cannot be fairly applied to a director of a business corporation with relation to undisclosed representations of an agent of the corporation in the sale of its stock.</p> <p>[3] Mortgage—Assignment of Interest in Estate—Security for Note.—An assignment of an interest in the estate of a deceased person as security for the payment of a promissory note is a mortgage under section 2924 of the Civil Code and passes to the assignee of the note without formal assignment under the provisions of section 2935 of such code.</p> <p>[4] Id.—Note and Contemporaneous Mortgage—Purchaser With Notice—Destruction of Negotiability.—Mortgage security operates to destroy the negotiability of a promissory note in the hands of a purchaser with notice thereof, if the mortgage is executed contemporaneously with the note, as part of the same transaction.</p> <p>1. Corporation’s knowledge as imputable to officer thereof, note, Ann. Cas. 1915A, 855.</p> <p>Whether officer or employee of corporation is chargeable with its knowledge of infirmities in commercial paper purchased from it, notes, 48 L. R. A. (N. S.) 65; L. R. A. 1915D, 1099.</p> <p>4. Provisions in mortgage securing note as affecting negotiability, notes, Ann. Cas. 1916C, 503; Ann. Cas. 1912D, 1.</p> <p>[5] Id.—Note and Subsequent Mortgage—Purchaser With Notice —Negotiability.—Where a promissory note was negotiable as originally executed, but subsequently mortgage security was demanded and given, such note is negotiable in the hands of a subsequent purchaser with notice of the security in so far as the maker is prohibited from setting up the defenses of fraud or failure of consideration, but the holder is bound by all the restrictions which section 726 of the Code of Civil Procedure places upon actions to collect a debt secured by mortgage.</p>

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

<p>[1] Gift—Recovery of Corporate Stock — Action by Mother Against Son—Evidence—Burden of Proof.—In an action by a mother against her son to declare a trust in her favor and have restored to her shares of stock of a corporation claimed by the defendant as a gift from the plaintiff, proof by him that there had been a legal transfer of the shares from his mother to him on the corporate records casts the burden upon her to show, either that the transfer never operated to invest the ownership of the shares in the defendant, or that if the gift was actually made, it was voidable on the ground of fraud or undue influence.</p> <p>[2] Appeal—Finding—'Conflict of Evidence.—A finding on testimony which is substantially conflicting cannot be disturbed by the appellate court whatever the views of the court as to the comparative strength of the testimony to the contrary.</p> <p>[3] Id.—Testimony of Attorney—Consideration on Appeal.—The testimony of an attorney in behalf of his client, so far as the appellate court is concerned, is to be received and considered as that of any other witness, in- view of the inherent quality of his testimony, his interest in the ease, and his appearance on the witness-stand.</p> <p>[4] Attorney at Law — Evidence — Witness.—The propriety of a lawyer occupying the dual capacity of attorney and witness is purely one of legal ethics largely to be determined by the attorney’s own conscience, and while it is not a practice to be encouraged, it may . often occur that conditions exist in which an attorney cannot justly or fairly withhold from his client either his legal services or his testimony as a witness.</p> <p>[5] Gift — Corporation Stock — Sufficiency of Evidence.—In this action by a mother to recover from a son shares of stock in the family estate corporation claimed by him as a gift from her, and of which corporation she was the president and the son an officer and director and active in the management of its affairs, the finding that no gift was made by her is held to be sufficiently supported by her denial that she ever knowingly transferred the title, and her testimony that as president she frequently signed papers at the son’s request without reading them and without knowledge as to their contents.</p> <p>[6] Id.—Ignorance of Character of Stock Certificates—Evidence —Dividend Checks.—Familiarity with dividend checks containing an order for the payment of dividends on stock does not tend to establish familiarity with the stock certificates themselves, and such checks are inadmissible to rebut a statement of ignorance of the physical aspects or contents of the certificates.</p> <p>[7] Id.—Provision for Future Needs—Immaterial Issue.—In an action between a mother and son involving the issue as to whether the former had made to the latter a gift of shares of stock in a corporation, the question as to whether the son had made subsequent provision for the possible future needs of the mother was immaterial, in the absence of any claim that the same was a condition or consideration for the transfer.</p> <p>4. Competency and propriety of attorney as witness for client or adverse party, note, 13 Ann. Cas. 31.</p> <p>[8] Id.—Ownership of Stock—Self-serving Declarations.—In an action between a mother and son involving the ownership of shares of stock in the family estate corporation which the defendant claimed as a gift from her, the cross-examination of the defendant as to whether he had said anything to certain persons connected with the corporation as to his ownership of the stock did not justify a redirect examination that he had informed certain other persons not connected with the corporation of his ownership.</p> <p>[9] Evidence—Self-serving Declarations.—Declarations made by a party in his own interest are commonly inadmissible, but exceptions to the rule exist under circumstances where a failure to assert a claim or right may be construed against the party as an implied negation, or where the assertion of such claim at a later date is attributed to conditions and exigencies which have arisen since the transaction in question, which motive would be disproved by showing earlier declarations to the same effect.</p> <p>[10] Id.—Cumulative Evidence—Collateral Transaction.—The exclusion of evidence which is merely cumulative of an undisputed fact, and which relates to a transaction entirely collateral to the main issue, is not error.</p> <p>9. When declarations of a party are admissible in Ms favor, note, 93 Am. Dec. 279.</p>

<p>[1] 'Common Carriers •—.Conversion op Shipment — Pleading — Evidence.—"Where, in an action for the conversion of1 goods while they were in the possession and under the control of the defendant as a common carrier between the point of shipment and the point of destination of the goods, the complaint alleged that the defendant was a carrier and that it unlawfully and wrongfully sold the goods without the plaintiff’s knowledge and contrary to his instructions, the plaintiff could only recover upon proof either that the defendant sustained the relation of carrier of the goods at the time of their conversion, or had so contracted with plaintiff as to be liable for loss by any other carrier -or bailee.</p> <p>[2] Id.—Transportation op Goods Beyond Lines—Liability—Common Law.—A common carrier by the acceptance of goods for transportation over its railroad lines to their destination and thence over the connecting lines of other carriers to the destination of the goods does not have imposed upon it by common law any liability as a carrier of such goods beyond the terminal of its own lines.</p> <p>[3] Id.—Nonliability Under Federal Law—Carmack Amendment — Cummings Act.—The Carmack Amendment to the Interstate Commerce Act making initial carriers liable for loss of shipments by connecting carriers did not apply to a shipment whose destination was outside of the United -States, and the Cummings Act, which replaced such amendment and had the effect of extending the liability of an initial carrier so as to cover losses upon connecting lines, is not applicable to a foreign shipment made before the enactment.</p> <p>[4] Id.—.Conversion by Connecting Carrier—-Bill of Lading—Limitation op Liability op Initial Carrier.—Under a bill of lading issued by an initial carrier upon receipt of a shipment of goods to a point beyond the destination of its -own lines, no recovery can be had for a conversion of the goods by a connecting carrier, where the instrument esqpressly limits liability - to carriage over its own lines.</p> <p>2. Limitation of carrier’s undertaking to its own line, notes, 5 Am. St. Rep. 719; 88 Am. St. Rep. 74; 31 L. R. A. (If. S.) 52, 68.</p> <p>3. Carmack Amendment as affecting state regulations as to stipulations limiting liability of common carriers for loss of or damage to goods, notes, Ann. Cas. 1915B, 80, 92; Ann. Cas. 1917G, 939; 44 L. R. A. (N. S.) 257; 50 I». R. A. (If. S.) 819.</p> <p>[5] Id.—Action for Conversion — Liability of Initial Carrier — Theory of Negligence — Pleading.—In an action against an initial carrier for damages for conversion of goods by a -connecting carrier in selling the same for transportation charges after refusal of acceptance by the consignee, the plaintiff cannot recover on the theory that the defendant was negligent in failing to notify the connecting carrier that it held, as alleged in the complaint, an indemnity bond for payment of the freight charges, since such averment was necessary in order to show that the sale was wrongful.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County. T. N. Harvey, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Appeal—Bequest fob Preparation of Transcript—Belief from Default.—Where on the hearing of a motion to dismiss an appeal from a judgment upon the ground that no written request for a transcript of the record, as required by section 953a of the Code of Civil Procedure, had been filed, it appeared that a transcript had been prepared without such request and certified to by the trial judge subject to the qualification that no request for its preparation had 'been made, the appellate court, having acquired jurisdiction of the appeal by the notice of appeal and undertaking, properly continued the motion to permit the appellant to apply to the trial court for relief under section 473 of such code, and where such relief was granted, the motion to dismiss the appeal was properly denied.</p> <p>[2] Contract—Void Contract.-—A void contract, a contract against public policy or against the mandate of a statute may not be made the foundation of any action, either in law or in equity.</p> <p>[3] Id.—Illegality—Inquiry by Court.—When the court discovers a fact which indicates that a contract is illegal and ought not to be enforced, it will, of its own motion, instigate an inquiry in relation thereto.</p> <p>[4] Monopoly-—Delivery op Lobsters prom Mexican Waters—Exclusive Right op Sale.—A contract to deliver lobsters in this state from Mexican waters during the season when under the fish and game laws of this state no lobsters may be taken in California waters, and giving the purchaser the exclusive right of sale of such lobsters in this state north of parallel 36 degrees north latitude, is illegal as being in violation of the Sherman anti-trust law and section 1673 of the Civil Code.</p> <p>[5] Id.-—Invalidity op Agreement—Deprivation of Advantages op Free Competition.—An agreement which has some direct and immediate effect upon interstate commerce is within the inhibition of the Sherman Anti-Trust Act, and it is not essential that the result of the contract should be a complete monopoly in order to vitiate the agreement, but it is sufficient if it really tends to that end and deprives the public of the advantages which flow from free competition.</p> <p>[6] Contract—Partial Restraint op Trabe—Construction op Code. Section 1673 of the Civil Code makes no exception in favor of contracts only in partial restraint of trade.</p> <p>[7] Id.—Contract in Restraint op Trade—Evidence—Intention op Parties.—In an action to recover damages for breach of a contract for the delivery in this state of lobsters from Mexican waters during the closed season, evidence of the intention of the parties as to the exclusive control and monopoly of the trade by the purchaser was admissible to show that the contract was one in restraint of trade.</p> <p>4. Contracts in restraint of trade as affected by modern anti-trust acts, notes, 9 L. R. A. (N. S.) 446; L. R. A. 1917A, 379.</p> <p>7. Admissibility of parol evidence to show- contract in restraint of trade, note, 16 Ann. Cas. 391.</p>

<p>[1] Alienation of Affections—Marriage—Evidence.—In an action by a wife for the alienation of the affections of her husband, a prima fade case of the existence of the marriage relationship is sufficiently made out by the testimony of the wife as to the marriage and that they had subsequent thereto deported themselves as husband and wife.</p> <p>[2] Marriage—Evidence—Construction of Code.—The intent of section 57 of the Civil Code, providing that consent to marriage and a solemnization thereof may be proved under the same general rules of evidence as facts proved in other cases, was to enable parties to or persons present at the solemnization of a marriage to testify to the facts within their knowledge that such marriage actually took place, and when to such testimony the additional evidence is educed showing that since the marriage the parties have deported themselves as husband and wife, a prima fade ease has been sufficiently shown.</p> <p>[3] Alienation of Affections — .Conspiracy — Evidence — Declarations.—Where in an action by a wife for the alienation of the affections of her husband the defendant claimed that she was the victim of a conspiracy which had been formed for the purpose 'of entrapping her into a compromising position with plaintiff’s husband, it was reversible error to exclude evidence of declarations made before the consummation of the conspiracy by a deputy constable, employed by plaintiff’s attorney to serve process on the defendant, relative to other things he did and was to do, where the evidence established prima fade that he in reality was a-member of the alleged conspiracy, rather than an employee thereof, although he was not named as a conspirator in the answer.</p>

<p>[1] Criminal Law—Motion to Set Aside Judgment.—Where a judgment of conviction of a criminal offense is entered upon a plea of guilty, the defendant is not entitled to make a motion to set aside the judgment upon any grounds which would have been reviewable upon a motion for a new trial or upon an appeal from the judgment.</p> <p>[2] Id.—Order Denying Motion—Conflict of Evidence—Appeal.— An order denying a motion to set aside a judgment of conviction entered upon a plea of guilty will not be disturbed on appeal where the evidence as to every ground relied upon in support of the motion is in direct and substantial conflict.</p> <p>[3] Id.—Youth and Ignorance of Defendant—Immaterial Matters. On an appeal from an order denying a motion to set aside a judgment of conviction entered upon a plea of guilty, the youth of the defendant and his possible misapprehension of the enormity of the crime and the severity of the penalty cannot be considered.</p>

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

<p>[1] Insane Persons—Trial by Jury—Time—Construction of Code. The provision of section 2174 of the Political Code that after the demand for a jury upon an inquisition of insanity, the court must cause a jury .to be summoned and to be in attendance at a date stated, not less than five nor more than ten days from the date of the demand for a jury trial, is directory only, and the failure to impanel a jury and try the matter of insanity within ten days from the date of the demand does not deprive the superior court of jurisdiction to proceed thereafter with the matter.</p> <p>[2] Id.—Agreement on Verdict—Construction of Code.—The provision of section 2174 of the Political Code that the alleged insane person must be discharged unless a verdict that he is insane is found by at least three-fourths -of the jury does not mean that he must be discharged if the jury fails to agree, but means that upon such trial a verdict could be returned by three-fourths in number of a jury of twelve in the same manner as in civil cases, and that he cannot be committed as insane unless a verdict of insanity ig found and concurred in by- 9-t least three-fourths -of the jury,</p>

Corpus to secure release from imprisonment- in state prison. ' Denied. The facts are stated in the opinion of the court.

<p>[i] Workmen’s Compensation Law — Fatal Injury to Employee Without Dependents—Payment of Employer to State—Creation of Fund for Disabled Workmen—Power of Legislature— Constitutional Law.—The legislature has not the power under section 21 of article XX of the constitution, as amended in 1919, vesting it with power to create and enforce a complete system of workmen’s compensation, to require an employer to pay to the state a certain sum whenever one of his workmen who has no dependents is killed by an injury received in the course of his employment, and to confer jurisdiction on the Industrial Accident Commission to adjudicate the liability of the employer therefor to the state, and the act of the legislature (Stats. 1919, p. 273) so providing, enacted for the purpose of creating a fund for the promotion of vocational re-education and rehabilitation of persons disabled in industry in this state and to provide funds for the insurance bureau of the commission, is unconstitutional.</p> <p>1. Constitutionality of Workmen’s Compensation Act, notes, Ann. Cas. 1912B, 174; Ann. Cas. 1915A, 247; Ann. Cas, 1916B, 1286; Ann. Cas. 1917E, 401, 839; Ann. Cas. 1918B, 611; 34 L. R. A. (N. S.) 162; 37 L. R. A. (N. S.) 466; L. R. A. 1916A, 409; L. R. A. 1917D, 51.</p> <p>[2] Constitutional Law—Fund fob Disabled Workmen—Jurisdiction of Industrial Accident Commission — Power of Legislature.—While, under its general powers, the legislature might provide a fund for the benefit of persons disabled in industry in this state and commit the administration of the fund to the Industrial Accident Commission, and might also levy a tax in some form to raise such fund, any disputes that might arise, concerning such tax would be cognizable only by the courts established by or under the provisions of article VI of the constitution, since no section of the constitution gives the legislature power to confer jurisdiction thereof upon such commission.</p>

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

<p>[1] Negligence—Injury from Defective Light-well in Sidewalk —Liability of Owner—Pleading—Sufficiency of Complaint.— A complaint in an action for an injury received by a pedestrian from stepping into a hole in a light-well in the sidewalk in front of the defendant’s building stated a cause of action where it was alleged that the well was kept and maintained by the defendant for her sole and exclusive benefit and that the defendant knew, or by the use of ordinary diligence should have known, of the defective condition of the well, and it was not necessary to allege that defendant had been given twenty-four hours’ notice by the proper municipal authority to repair the defect, as provided in the Vrooman street law.</p> <p>[2] Id.—Repair of Sidewalk — Light-wells ■— Duty of Property Owner.—A property owner who maintains light-wells in the sidewalk in front of. her building for the purpose of supplying light to the basement thereof is under an obligation to keep the gratings and glass blocks of which the wells consist in a condition which will render the sidewalk, of which they form a part, reasonably safe for use by those who may pass over it.</p>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco. George E. Crothers, Judge. Modified and affirmed. The facts are the same as those stated in the opinion in the case of Coldwell v. Board of Public Works of the City and County of San Francisco et al., ante, p. 510.