Volume 20 — California Appellate Reports

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

<p>Motion tor Hew Trial—Dismissal tor Lack ot Diligence—Discretion—Review upon Appeal.-—-The dismissal of the proceedings on a motion for a new trial on the ground of lack of diligence in the prosecution thereof, is a matter which is addressed to the sound discretion of the court passing upon it, and if no abuse of its discretion appears, its order will not be disturbed upon appeal.</p> <p>Id.—Submission ot Motion to Judge Known to be Disqualified— DeniaiA-Yacation ot Order—Delay in Renewing Motion—Dismissal—-Discretion not Abused.—Where the party moving for a new trial knowingly and without objection permitted a disqualified judge to act upon the motion, and after the motion was denied, caused the order to be vacated for such -disqualification, and then delayed a new ruling before-a qualified judge, until after the plaintiff had given notice of a motion to dismiss the proceedings, it is held, in view of the facts, that the court did not abuse its discretion in dismissing the motion.</p>

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

<p>Municipal Corporation Act—Construction—Collection of Licenses in City of Woodland—Power of City Trustees.—Under the Municipal Corporation Act, as amended in 1901, the provisions of section 571 thereof as then amended authorize the board of trustees of the city of Woodland, as a municipal corporation of the fifth class, in its discretion to enact an ordinance prior to a city election providing that “the city treasurer elected shall be ex-officio city tax collector and license-tax collector,” and the effect of such ordinance enacted under a later provision than section 790 of that act will be to relieve the city marshal of the prior duty imposed upon him by said section 790, that the marshal “shall receive from the clerk all city licenses and collect the same.”</p> <p>Id.—Unauthorized Collection and Misappropriation of License-Taxes by City Marshal—Sureties on Official Bond not Liable. The unauthorized collection of license-taxes by the city marshal after his power to collect the same had ceased by the authorized action of the city trustees in relieving him of power and conferring exclusive power upon the city treasurer to collect the same, and the misappropriation by the city marshal to his own use of the taxes so collected without authority, cannot render the sureties on his official bond liable for such misappropriation, since their obligation contemplated and embraced only the faithful performance of official duty on the part of their principal.</p> <p>Id.—Bower of Legislature to Delegate Authority to City Trustees. There is no constitutional inhibition to the delegation by the legislature of authority to the board of trustees of a city to relieve one city officer of a certain ministerial executive duty, and transfer the same to another city officer, where the effect is not to destroy the first office, or to contravene any general law, but the legislation is in furtherance of the general scheme to clothe the local governing body with a large measure of authority in determining the extent and character of the duties to be exercised by their subordinate executive officers.</p>

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

<p>Action to Abate Nuisance—Obstruction of Highway—Sufficient Evidence of Highway.—In an action to abate a nuisance, caused by the obstruction of an alleged highway forty feet in width, it is held that there is sufficient evidence that a highway of that width was used by the public as early as the year 1863, along the strip of land in controversy, and that its use was continuous for more than five years prior to the act of 1873, which gave the public the right to use it as a highway, by limitation of time, and that such highway was never abandoned.</p> <p>Id.—Conflicting Evidence as to Location of Highway—Finding and Conclusion Based on Date of Deed Unsupported.—Whore there was conflicting evidence as to the' precise location of the highway, and whether it included the place of alleged obstruction, and it appears that a former owner of land granted a right of way to two grantees, at the place of alleged obstruction twenty feet in width, on the fourteenth day of April, 1902, it is held that a finding and conclusion based on said date that said roadway “being forty feet in width, is now, and ever since the 14th day of April, 1902, has been, used by plaintiffs as a highway,” and “as a duly dedicated highway ever since said date,” and that said obstruction is a nuisance, cannot be construed as referring to any prior date, and cannot sustain the doubling of the width granted in said deed.</p> <p>Id.—Opinion op Court No Part op Record—Findings and Judgment not Supplied.—The written opinion of the court printed in respondent’s brief, cannot be considered as any part of the record, and cannot be used to supply findings and conclusions, of law and judgment different from that actually pronounced by the court as of the date of the deed in question. The evidence other than that deed, and used after its date, April 14, 1902, was not of itself sufficient to support the findings and judgment.</p>

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

<p>Criminal Law—Bobbery—Appeal prom Judgment and Order Denying New Trial—Bevibw upon Appeal—Absence op Briep or Transcript—Affirmance.-—Where an appeal is taken both from a judgment of conviction of robbery and from an order denying a new trial, and no brief or argument is submitted for the appellant, and the case has been ordered to be submitted for decision, where it appears that no reporter’s transcript has been filed, and' that the time for such filing under section 1247. of the Penal Code, or any extension thereof which could be granted under section 1247d of the same code, has long since elapsed, the appeal from the order denying the motion for a new trial cannot be considered and where no error appears upon the judgment-roll, the judgment and order must be affirmed.</p>

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

<p>Criminal Law—Rape—Sexual Intercourse with Girl Under Sixteen —Support oe Verdict.-—Upon a prosecution for rape committed by the defendant by having sexual intercourse with a young girl under sixteen years of age, who was not the 'wife of the defendant, it is held that the verdict of guilty of the offense charged is supported by the evidence, not only of the prosecutrix, but also of the uneontradieted evidence of an unimpeached witness to whom the defendant’s guilt was practically admitted, while in jail.</p> <p>Id.—Credibility and Weight op Evidence—Province op Jury and Judge.—The credibility and weight of the evidence is within the province of the jury, in the first instance, and when the verdict of guilty as charged has been rendered, it rests solely with the trial judge, in passing upon the motion for a new trial, and the order of the court in denying a new trial, after such verdict, will rarely be disturbed upon appeal</p> <p>Id.—Sufficiency of Evidence When Disturbed upon Appeal.—The sufficiency of the evidence to support the verdict, will not be disturbed by the appellate court, save in those rare cases where it obviously appears that the testimony upon which the conviction was had is in and of itself, or when considered with the undisputed facts of the case, so inherently improbable as to be impossible of belief, and therefore must be considered in effect to be no evidence at all.</p> <p>Id.—Motion for a New Trial—Newly Discovered Evidence—Cumulative Evidence—Impeachment of Witness—Motion Properly Denied.—Where a motion for a new trial, made for newly discovered evidence, shows that such evidence is. merely cumulative, and of a character impeaching the testimony of a witness for the prosecution, it shows, in its entirety, that the ground of newly discovered evidence is insufficient, and that the motion was properly denied.</p> <p>Id.—Evidence of Good Character of Defendant—Proper Instruction. Where there was evidence of the good character of the defendant, as to which a requested instruction was given, the court also properly instructed the jury that if, after weighing all of the evidence including that of the good character of the defendant, the jury believed him guilty beyond a reasonable doubt, they should bring in a verdict accordingly notwithstanding the fact that the defendant had previously borne a good reputation.</p> <p>Id.—Proper Instruction as to Testimony of Prosecutrix.—The court properly instructed the jury, that although they should be cautious in accepting the uncorroborated testimony of the prosecutrix, nevertheless they were not required to acquit the defendant merely because her testimony was not corroborated, and that if the jury are satisfied beyond a reasonable doubt from her testimony, that the defendant had sexual intercourse with her, within the meaning of the allegations of the information herein, it will be your duty to resolve that question of fact on the side of the people, notwithstanding no other witness has testified to the same effect.</p>

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

<p>Sale Under Execution—Redemption—Advancement to Judgment Debtor—Conveyance to Lender as Security—Redemption Under Deed.—Where money is agreed to be advanced to a judgment debtor to redeem property sold under execution, and before the money is paid, the judgment debtor entitled to redeem makes a conveyance to the lender, to enable him to redeem, and pays some money to the lender, toward the redemption, and the remainder of the money advanced was paid at the time of redemption, by the lender; such redemption was made by the lender as the successor in interest of the judgment debtor, and not as a mortgagee, and he was not required to produce a note of the record of his security, or an affidavit showing thq amount due under section 705 of the Code of Civil Procedure.</p> <p>Id.—Nature of Redemption by Mortgagee—Rule Inapflicible.— When a mortgagee, as such, redeems from an execution sale, under the provisions of section 705 of the Code of Civil Procedure, he must be acting as such in his own interest to protect his lien already existing, and in such case, upon the completion of the redemption by him becomes (in default of any other lawful redemption from him) the owner of the property freed from the interest of the judgment debtor. But this rule cannot apply to one who is not a mortgagee, entitled to redeem as such, since his security cannot arise until the money is actually paid for the purpose of redemption under a title vested in him by the judgment debtor, to enable such redemption to be made, as his successor in interest.</p> <p>Id.—Relation of Redemptions» to Title—Trustee and Mortgagee.— The redemptioner who takes title from the judgment debtor before he advances the residue of the money, to enable a redemption to' be made, holds the property in the twofold capacity of trustee of the legal title for the judgment debtor, and as his mortgagee in equity, to secure the money actually advanced by him to effect the redemption, to take effect when the money was actually so advanced and paid by him, and not before. Having been redeemed by the trustee of the judgment debtor, the property was in effect redeemed by her. A judgment debtor may convey the property to another for the purpose of redemption.</p> <p>Id.—Improper Mandamus by Execution Purchaser.—It is held that the court erred in granting a mandamus to compel a conveyance to the original purchaser at the execution sale, on the ground that no legal redemption had been made in the interest of the judgment debtor, and that the property was not lawfully redeemed by the successor in interest of the judgment debtor, and was redeemed solely by him as mortgagee, and was not effectively so redeemed, for want of compliance with section 705 of the Code of Civil Procedure.</p> <p>Id.—Equitable Principles Giving to Each Party His Due.—Under proper equitable principles, each party has his due. Under the redemption effected, the original execution purchaser has been fully paid the amount of his purchase with the interest allowed by statute. The one who advanced part of the redemption money gets security for the amount advanced, and the judgment debtor recovers her property, encumbered with a lien in favor of the party advancing the same.</p>

Z. B. West, Judge. The facts are stated in the opinion of the court, which refers for a statement of the evidence, to the decision upon the former trial reported in People v. Overaclcer, 15 Cal. App. 620.

<p>County Government Act—Validity op Ordinance—Question as to Licenses Outside op Incorporated Cities—Expression op Opinion op Voters—Action by Board.—Under section 13 of the County-Government Act providing that the board of supervisors may “at any election, submit any questions upon which they may desire the opinion of the voters of the county,” the Board of Supervisors of Los Angeles County may adopt an ordinance providing that at every general election in said county, propositions shall be severally submitted to the electors of each voting precinct therein, outside of incorporated cities and towns: “1. Shall wholesale and retail liquor dealers’ licenses be granted in this precinct?” “2. Shall winery keeper’s licenses be granted in this precinct?” “3. Shall hotel and restaurant liquor dealers’ licenses be granted in this precinct?” “4. Shall licenses for public billiard rooms be granted in this precinct?” Said ordinance is to be considered as calling for the opinion of the voters to be acted upon by the board of supervisors.</p> <p>Id.—Power op Supervisors to Call por Opinions op Voters Unaffected by Independent Part of Section Held Unconstitutional. The power of the board of supervisors to submit questions upon which they desire the opinion of the voters, under section 13 of the County Government Act, is not affected by the fact that an independent provision in the same section, authorizing an ordinance to be enacted by vote of the people has been held unconstitutional and void, as interfering with the legislative functions of the supervisors. In the present case, the board is not bound by the result of the election; and the expression of the voters is ineffectual unless enacted by the board. But the board may properly permit the voters to •express their opinions as to the desirability of its enactment of police measures.</p> <p>Id.—Duty of Clerk of Board of Supervisors—Improper Application for Writ of Mandate.—It is made the duty of the clerk of the board of supervisors under the ordinance to submit the stated questions to the stated precincts at each general election and to certify the result to the Board of Supervisors of Los Angeles County; and a taxpayer of the county will not be granted a writ of mandate to prevent the clerk from obeying the provisions of the ordinance.</p>

<p>PETITION for Writ of Mandate directed to the Judge of the Superior Court of San Luis Obispo County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County and from orders denying motions in arrest of judgment and for a new trial. John' Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an Interlocutory Decree of the Superior Court of Sonoma County in an action for the partition of land. Emmett Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Vendor and Purchaser—Title of Vendor Dnder Distribution—Eights of Minors Purchased—Adjudication of Sufficiency—Title not Collaterally Assailable.—Where the vendor of land contracted to be sold to a purchaser, deraigns title under a decree of partial dis-distribution of the estate of her deceased husband, which, in effect, adjudged the sufficiency of her title under the will, and included therein the actual distribution of her title acquired by purchase and assignment of the interests of all the other heirs and legatees under the will, the title so deraigned is complete; and the purchaser is not justified in rejecting it on the ground that the interest of minors and incompetent persons acquired through their guardians were not legally acquired. The title so decreed by a court of competent jurisdiction, is not collaterally assailable.</p> <p>Id.—Jurisdiction Inclusive of Power to Make Erroneous Rulings and Findings Corbectible Only on Appeal.—Where the court had acquired jurisdiction of the proceeding and of the subject matter thereof, the court had the legal power to make the decree as prayed for, and incidentally to make erroneous conclusions and findings, which if made, could have been corrected only on an appeal from the decree. Until so corrected, such errors cannot be made a menace to the validity of the decree, or its effect.</p> <p>Id.—Conclusiveness of Decree of Distribution—Immunity—Exception—Relief in Equity.—A decree of distribution by a court having jurisdiction of the proceeding, if not appealed from, is conclusive upon all the heirs, legatees, or devisees, whose interests are involved in the proceeding thus adjudicated, and they cannot question its stability on the ground that the evidence upon which it was predicated was incompetent or insufficient to sustain the findings upon which it was produced. The decree, after it has become final, is immune from attack, except upon a showing in equity of fraud or some matter extrinsic to- the matters or questions examined and determined.</p> <p>Id.—-Presumptions—Regularity of Proceedings—Proper Decisions at Hearing.—As to all matters, except the act of the executor or administrator in himself purchasing the property of the estate, the rule that all presumptions must be indulged favorable to the regularity of the proceedings leading to the judgment, and in support thereof, is to be applied with no less rigor to *a decree of distribution than to any other kind of a judgment, and it is to be presumed that the evidence upon which the decree was predicated was in all respects sufficient and competent, and that any legal objections that could have been made against it were made by the party objecting to the granting of the petition and were decided by the court at the hearing.</p> <p>Id.—Effect of Forbidden Act of Executor in Purchasing Property of Estate—Voidable not Void Act.—Though the act of purchasing the property of the -estate by the executor or administrator thereof is expressly enjoined by section 1576 of the Code of Civil Procedure, yet it has been uniformly held in this state that the purchase of the property by such officer involves an act which is not void but only voidable by the parties whose interests are purchased.</p> <p>Id.—Special Presumption—Adequacy op Consideration for Interests of Beneficiaries—Absence of Contrary Showing.—It must be presumed that the price paid by defendant for the interests^ of the other beneficiaries under the will, was adequate, fair, and just, where there is no evidence in the record disclosing that the price paid was inadequate, or that the beneficiaries on disposing of their interests were dissatisfied with their bargain, or had either appealed therefrom or assailed it in equity after the time for appeal had expired, and nothing appears but the matters disclosed at the hearing of the petition for distribution.</p> <p>Id.—Impregnable Decree of Title in Respondent—Chimerical Speculation.—The time for an appeal from the decree having expired prior to the time at which the transactions giving rise to this litigation took place, the title of the respondent to the property in controversy stands confirmed, by a perfectly valid and impregnable decree, against the stability of which nothing can be urged, but a suggestion growing out of a mere chimerical speculation, that at some future time, some one may challenge it on grounds presumed to have been considered and passed upon by the court at the hearing of the petition.</p> <p>Id.—Objection to Title not Appearing on Dace of Record—Burden on Vendee.—Where the title to real property contracted to be sold, is brought in question, and the defect therein or doubt as to the soundness thereof does not appear upon the face of the record, but depends upon some extrinsic fact, not discerned by the record, the vendee must prove such fact to justify a refusal to accept the title agreed to be purchased. He cannot justify his refusal to perform his contract by a mere captious objection to the title tendered to him. There must appear such a reasonable doubt as to the vendor’s title as affects its value, and would render the land unmarketable.</p> <p>Id.-—Sufficiency of Title of Vendor.—The record title which was tendered by the vendor is legally sufficient, when it appears upon its face “free from all litigation, palpable defects and grave doubts,” and that it embraces both the legal and equitable titles, and the conveyance of which to the intending purchaser is accompanied with such proof of title “as will arm him with the recorded means of vindicating its validity in after times.” It is sufficient, when upon its face, a court of equity would not hesitate to decree a specific performance of the contract of sale between the owner of the title and the proposed purchaser.</p> <p>Id.—Question as to Conversion of Real Property into Personal Discussed but not Decided—Tender by Respondent of Perfect Title—Breach.—The question as to whether there was a conversion of the realty into personal property is discussed, but not decided, it being held that the decree of distribution confirmed in the respondent a perfect title to the real estate involved in this controversy, and that hy the tender thereof, she fulfilled her part of the engagement, and that the vendee having refused to accept the conveyance so offered, was guilty of the breach of the contract of purchase.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to vacate an interlocutory judgment in an action for divorce. George H. Cabannis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Good Character of Defendant—Refusal of Requested Instruction—Principle Involved in Request Given.-—A requested instruction, in a criminal case, “that if the defendant be proved of good character as to truth, veracity, honesty, morality and integrity, such good character may be sufficient to create and generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character” was properly refused, where the principle involved was fully covered in another instruction given at defendant’s request, “that good- character is of importance to a person charged with crime; and you have a right to consider whether the person of good character would be less liable to be guilty of crime than a person of bad habits and character. The good character of the defendant, when proven, is itself a fact in the case; it is a circumstance tending in a greater or lesser degree to establish his innocence, and it is not to be put aside by a jury in order to ascertain if the other facts and circumstances, considered by themselves, do not establish his guilt beyond a reasonable doubt.”</p> <p>Id.—Interruption op Trial by Bystander—Improper Bemarks as to Identity op Girl Involved—Bemoval prom Court—Admonition to Jury—Presumption.—Where a bystander interrupted the progress of the trial by improper remarks as to the identity of a girl involved in the ease, “that they have got the wrong girl,” the court properly ordered him from the court room, and admonished the jury that: “The case must be decided upon lawful evidence adduced upon the witness stand, and nothing else”; and that they must reject the statements of this man as evidence, “discard them from your mind; act as though you had never heard them.” It must be presumed that the jurors heeded the admonition of the court.</p> <p>Id.—Witness to Good Beputation op Dependant—Cross-examination —Beplection upon Moral Character.—Where a witness had testified as to the good reputation of the defendant, he was properly allowed to be questioned on cross-examination for the purpose of reflecting upon his moral character, where no objection was made as to the form of the questions. But where the answers were favorable to the defendant, he cannot complain of such cross-examination.</p> <p>Id.—Presumption op Innocence—Correct Bequest.—The court properly instructed the jury at defendant’s request: “that the defendant, at the outset of the trial is presumed to be innocent. He is not required to prove himself innocent, or to put in any evidence at all upon the subject. In considering the testimony in the ease, you must look at all of the testimony, and view it in the light of that presumption, and it is a presumption that abides with him throughout the trial of the ease, until the evidence convinces you to the contrary beyond all reasonable doubt. It is your duty, if possible, to reconcile the evidence with this presumption.”</p>

<p>Appeal—Costs—Expense of Printing Briefs not Taxable.—The expense of printing briefs on appeal is not allowable as costs to the prevailing party, in view of rule XIII of the supreme court, allowing only the expense of printing transcripts or other papers constituting the record in original proceedings, required by its rules to be printed, to be taxed in bills of costs in the usual mode, notwithstanding briefs are required to be printed under subdivision 4 of rule II of that court.</p> <p>Id.—Construction of Code Sections—“Disbursements”—“Costs.” on Appeal.—The term “disbursements” used in sections 1021 and 1033 of the Code of Civil Procedure, adds no strength to the statute except possibly its use may justify the court in construing the term “costs” used therein more "liberally than it might otherwise do. But section 1034 of that code which relates to “costs” upon appeal makes no mention of “disbursements” but is confined by its •terms to “costs” and must be construed in the light of rule XIII of the supreme court. Until that rule is amended, the costs of printing briefs cannot be taxed or allowed either as “costs” or as “disbursements” to the prevailing party.</p> <p>Id.—Costs in Superior Court—Discretion of Trial Judge—Beview upon Appeal.—Since the legislature has failed to specifically enact what shall constitute' recoverable costs in an action in the superior court, it has been held by the supreme court that “the allowance or disallowance of items for expense and disbursement incurred upon the trial of the action must be left, in nearly • every instance, to the discretion of the judge where the cause was tried,” subject to review upon appeal. The same principle applies to its retaxation of costs upon appeal, its ruling being subject to review upon appeal.</p>

<p>Vendor and Purchaser—Action for Breach of Contract to Sell Land—Rejection by Purchaser of Perfect Title—Advice of Syndicate.—An action by the assignee of brokers for alleged breach of a contract by such brokers to negotiate and consummate a sale of the • defendant’s land, for an amount representing the difference between the net price to the defendant at which said real estate was sold by the brokers, and the gross price at which it is alleged that the brokers agreed in writing to sell the property to the intending purchaser, is not sustainable where such purchaser refused to accept the tender of a deed conveying a perfect title to the land, upon the advice of a syndicate for which he was acting, in which syndicate such brokers and the purchaser owned one-half interest. It is manifest that the brokers, and not the defendant, committed a breach of the agreement.</p>

<p>Criminal Law—Manslaughter—Evidence—Testimony op Absent Witness Taken at Preliminary Examination—Discretion op Trial Court—Appeal.-—Upon the trial of a defendant convicted of manslaughter, the determination of the question as to whether cr not a sufficient foundation was laid for the reading of the testimony of an absent witness taken at the preliminary examination, is a matter resting largely in the discretion of the trial court, and if there is substantial evidence in the record to support the conclusion of the trial court, this court will not interfere with the ruling allowing the testimony to be read. It is held that the showing in the record is sufficient to justify the ruling of the trial court, and that there was no abuse of discretion in permitting the deposition to be read.</p> <p>Id.—Deposition Bead op Little Importance.—It is held that the deposition read is of such little importance that if it had been excluded instead of admitted it would not in any way have affected the result of the trial.</p>

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

<p>APPEAL from a judgment entered upon demurrer to the complaint in an action to recover a penalty. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Libel—Publication in Japanese and Chinese Language—Pleading —Translation in English Required.—In an action for a libel which was published in the Japanese and Chinese language, it is not necessary to set forth the Japanese and Chinese figures or characters employed in the publication thereof. Judicial proceedings in this state are required under section 24 of article 4 of the constitution, to be conducted in the English language; and a correct translation of the libel into the English language is thereby required, alleging it to be such, without requiring a copy of the original to be inserted in the complaint.</p> <p>Ib.—Construction op Code Provision—“Ordinary and Concise Language.”—Under the provision of subdivision 2 of section 426 of the Code of Civil Procedure requiring that “The complaint must contain: ... 2. A statement of the facts constituting the cause of action, in ordinary and concise language,” the English language is intended. The Japanese or Chinese language is not “ordinary language” within the meaning of that provision.</p> <p>Id.—Translation—Ambiguity in Meaning op One Word Immaterial.—When the Japanese word “mekake” may be translated either “mistress” or “concubine,” the use of the word “concubine” in rendering that word into English is immaterial, and an objection based on the use of the latter word cannot be sustained.</p> <p>Id.—Cause of Action—Proof of Use of All Words - Alleged not Required.—It was not necessary for the plaintiff to prove the use of all the words alleged; but it is sufficient that she proved enough to establish her cause of action against the defendant.</p>

<p>Criminal Law—Murder—Instructions—Law of Self-defense—Test of Correctness of Instructions.—Upon the trial of the defendant upon a charge of murder, it is held that an objection to instructions of the trial court upon the law of self-defense is hypercritical; but even if it were not so, the correctness as a whole of the charge to the jury, is never to be tested by singling out and assailing individual instructions', which when detached and isolated from the charge in its entirety, may not contain every qualification, exception, or contingency which may possibly arise under the facts of the particular ease on trial.</p> <p>Id.—Province of Trial Court as to Instructions.-—The trial court is not required repeatedly to qualify and explain the essentials of the law applicable to the ease in every individual instruction of its charge to the jury, and its charge will ordinarily be held good and sufficient, if the same as a whole clearly, correctly, and without conflict, states the law of the ease.</p> <p>Id.—View by Jury of Place of Homicide—Reception of Evidence— Right of Defendant to be Present—Sworn Duty of Trial Judge— Waiver of Objection.—Though the defendant prosecuted for murder has a statutory right to be present at the reception of all evidence, including a view of the premises, where the homicide was committed, in which the jury are receiving evidence, of which he cannot be deprived, without his consent; and though it is the sworn duty of the trial judge to be present at the reception of all evidence by the jury; yet the defendant may waive all objections both to his own right to be present, at such view, and to his voluntary absence therefrom, and also to the sworn duty of the trial court to be present at such view and to the court’s absence therefrom.</p> <p>Id.—Pacts Showing Defendant’s Waiver of Objection to View— Request by Defendant for View—Voluntary Absence—Presence of Defendant’s Counsel With Judge.—Where the defendant requested, that the jury be permitted to view the place of the homicide, in charge of a deputy sheriff and of a detective, but failed to request -the presence of the judge, and defendant was voluntarily absent from the view, and his counsel remained with the judge in the court room, until the return of the jury, and no objection was made, before or after the view, either to the defendant’s absence therefrom, or that the judge owed a duty to be present at the view, it is held that under these circumstances, the defendant waived both his own right to be present at thg view, and also the trial judge’s duty to be present thereat.</p> <p>Id.—Power, of Defendant to Waive Duty of Judge to be Present at the View—Danger of Injustice to Defendant—Duty Should be Performed.—Though the authorities sustain the power of the defendant to waive the judge’s duty to be present at the view, yet there is danger of injustice to the defendant by the omission of that duty, even with the defendant’s consent, which if it manifestly occurred, would necessitate a reversal of the judgment. The court should always perform its duty to be present at the view.</p> <p>Id.—Absence op Injustice in Present Case—Defendant not Injured by View.—It is held that, in the present ease, nothing occurred during the view of the premises, which in any wise tended to injure the defendant, and that a reading of the whole record discloses that he was fairly tried and justly convicted.</p>

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

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

<p>Criminal Law—Murder—Confession of Wife’s Adultery With Deceased—Homicide After Long Interval of Time—Instruction as to Manslaughter Properly Refused.—Upon the prosecution of a husband for the killing of the deceased for having committed adultery with his wife, where it is shown that the homicide was committed about seventeen hours after the husband had been told by his wife of such adulterous relation, and the evidence conclusively shows that unless the defendant was at the time of the shooting so far mentally deranged as to be without appreciation of the nature ef his act, he was not entitled to an instruction upon the subject of manslaughter. The jury were warranted in convicting the defendant of murder, if they were sufficiently convinced that he committed any crime at all.</p> <p>Killing in Heat of Passion Essential to Manslaughter—Conclusiveness to Contrary from Long Lapse of Time.—While the taking of life in the heat of passion will make the crime manslaughter, it will be conclusively inferred that the homicide was not committed in the heat of passion, from the fact of the intervention of a long period of time between the provocation and the act of killing, in which there was sufficient cooling time from the heat of passion. In such case, the act of killing, although prompted by the provocation, will be deemed to have been the result of deliberate premeditation or predetermination to 'take life.</p> <p>Id.—Instructions must Apply to Facts Proved.—Instructions must be applicable to the facts; and it is not error to refuse instructions which have no application to the facts as proved. There being no evidence which would give plausible color to the theory that the killing was in the heat of passion, the court properly refused to give any instruction on the subject of manslaughter.</p> <p>Id.—Statutory Definition of Degrees of Murder—Use of Word “Observe.’’—Where the court correctly gave in the language of the Penal Code, the distinction between the two degrees of murder, the use of the word “observe,” in connection with the statutory definition of murder in the first degree, carried with it no erroneous or harmful use of that word, which is in effect that the jury would “take notice” ■that certain elements stated constituted murder in the first degree.</p> <p>Id.—Requested Instruction—Defenses Under Plea of Not Guilty— Modification—Absence of Prejudice.—The court did not err in modifying a requested instruction as to defenses permissible under a plea of not guilty of the offense charged, by striking out certain unnecessary exceptions stated, where the instruction as modified, in connection with another instruction given, entitled the jury under such plea, to consider all matters of fact tending to establish any defense. But, as insanity was the only defense made, the defendant could not be prejudiced by the modification.</p> <p>Id.—Proper Disallowance op Requests Covered by Charge—Reasonable Doubt—Presumption of Innocence—Right to Refuse to Testify.—The disallowance of requested instructions as to reasonable doubt, as to the presumption of innocence, and as to the defendant’s right to refuse to testify, was not prejudicially erroneous, where the court in its own charge, fully covered the law applicable to each of those subjects.</p> <p>Id.—Defense of Insanity—Erroneous Request—Inability to Know Nature of Act.—-The court properly refused a requested instruction that “to constitute unsoundness of mind, it is not necessary that the person of unsound mind has a delusion or mania, and acts upon such delusion or mania. If you believe from the evidence in this case that, at the time of the killing charged in the information, the defendant was of unsound mind by reason of any delusion dr mania, then it is your duty to acquit the defendant.” Such request omits the most essential element of insanity as a defense to crime, that the defendant was then so mentally deranged, that he did not and could not know the nature and quality of his act in slaying the deceased, and its wrongfulness.</p> <p>Id.—Proof of Insanity—Preponderance of Evidence—Proper Modification of Request—Striking out Word.—A requested instruction that “while the law compels the prosecution to prove the guilt of the defendant of the crime charged beyond a reasonable doubt, and to a moral certainty, the law only requires the defendant, whose insanity is one of his defenses to prove his insanity at the time of the commission of the offense charged by a preponderance of evidence merely,” the request was properly modified by striking out the word “merely.”</p> <p>Id.—Hypothetical Instruction Properly Refused.—A hypothetical instruction purporting to recapitulate the testimony addressed to the defense of insanity and concluding with the statement that if the jury believed that the preponderance of the evidence upon that question showed that the defendant, by reason of the facts set forth, was mentally so deranged at the time he committed the act of killing that he did not know the nature or quality of the act he was doing, or that he did not know that he was doing wrong, a verdict of acquittal should follow, was properly disallowed, as apt to be misleading.</p> <p>Id.—Absence of Prejudical Error—Fair Trial—Support of Verdict. It is held that no prejudicial error appears in the record; that the defendant has been accorded a fair trial,- and that his conviction of the offense charged cannot be disturbed upon appeal.</p>

<p>Appeal from Judgment—Dismissal—Limited Review—Order Denying New Trial.—Where an appeal was taken both from the judgment, and from an order denying a new trial, and it appears that the appeal from the judgment was taken more than six months after its entry— •that appeal may be dismissed; and the review must be limited to the appeal from the order.</p> <p>Negligence—Running Away of Unattended Horse and Wagon—Presumption—Prima Facie Case.—Where an unattended horse and wagon runs away in the streets of a city, and in its course injures a person who is riding in a carriage, who is without fault, a prima facie case of negligence on the part of the owner of the runaway horse and wagon is shown. When that which causes the injury is under the management of -the defendants, and the accident is such as in the ordinary course of things would not happen, if those who have the management use proper care, there is a presumption of negligence, in the absence of explanation by the defendants.</p> <p>Ib.—Error in Granting Nonsuit.—It was error to grant a nonsuit in such case, at the close of the plaintiff’s evidence, on the ground that there was no evidence tending to show the negligence of the defendants, it being admitted that the defendants were the owners and possessors of the runaway horse and wagon, and it being proved that there was no driver on the runaway team, and that it struck the buggy in which the plaintiff was riding, to her serious injury, it being shown that the hitching rope was not dragging, but was tied up on the hames.</p> <p>Id.—Grounds of Nonsuit—Review upon Appeal.—The reviewing court is not at liberty to consider any ground of nonsuit, which was not stated in the motion therefor; and where the sole ground stated in the motion was “that no negligence whatever has been proven against the defendants,” no other ground of nonsuit can be considered.</p>

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

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

<p>Appeal—Absence op Judgment in Mandamus—Order Sustaining Demurrer to Petition—Want op Jurisdiction—Dismissal.-—An appeal does not lie from an order sustaining or overruling a demurrer to a petition for a writ of mandamus. The .action of the court upon the demurrer can only be reviewed upon the appeal from the final judgment entered in the proceedings, and where no final judgment appears in the record, the court has no jurisdiction of the appeal, and it must be dismissed.</p>

<p>Criminal Law—Dnauthenticated Transcript—Affirmance—Proper Transcript Presented on Petition for Rehearing—Question of Regularity—Review upon Merits.—Though the original record in •this criminal case, was not legally authenticated, and the judgment was properly affirmed on that ground; yet where upon petition for a rehearing, a legally authenticated transcript was presented, it will be permitted to be filed for the preferred purpose of a review of the case upon its merits, regardless of the question of regularity or propriety of such action; and the,record will be treated as properly authenticated for such purpose.</p> <p>Id.—Order Granting New Trial—Duty of Court—Question of Doubt—Sound Discretion.—Where the trial court is of the opinion that a party prosecuted for crime has been convicted upon insufficient evidence, it is its duty to set aside the verdict by granting a new •trial. But this does not mean that in every ease of doubt entertained by the court of the justness of the verdict of guilty, the jury’s deliberations should be vitiated by a new trial. The exercise of the power to set aside a verdict should always be within .the bounds of sound judgment and discretion, and not arbitrary.</p> <p>Id.—Order Denting New Trial—Effect of Doubt—Presumption— Review upon Appeal.—Where the court has made an order denying a new trial its mere expression of doubt as to the sufficiency of the evidence, cannot be presumed to be inconsistent with its order as made, nor to authorize questions of fact to be reviewed upon appeal.</p> <p>Id.—Obtaining Money by False Pretenses—Unauthorized Sale of Corporation Stock—Support of "Verdict.—Where the defendant was convicted of the crime of obtaining money from the prosecuting witnesses by false pretenses that he was authorized to sell the stock of a corporation, which he had in fact no authority to sell, it is held upon a review of the evidence, that it is sufficient to sustain the verdict of conviction.</p> <p>Id.—Dissolution of Prior Connection with Corporation—Want of Presumption of Continuance.—Notwithstanding the former connection of the defendant as a promoter of the corporation, the presumption that “a thing once proved to exist continues as long as is usual with things of that nature,” embodied in subdivision 32 of section 1963 of the Code of Civil Procedure, does not apply, where the evidence shows that he ceased to be connected with the corporation, before the attempted sales of stock made to the prosecuting witnesses.</p> <p>Id.—Absence of Prejudicial Error in Evidence or Charge of Court. It is held that there is no prejudicial error in the rulings upon evidence or in the charge of the court.</p> <p>Appeal—Reviewable Record—Duty of Court of Appeal—Finding— Alternative Dismissal or Affirmance.—Upon an appeal in a criminal case, it is about the first duty of the court of appeal to ascertain whether there is a record before it which may be legally reviewed, and if it finds that there is not such a record before it, the only alternative left, is to dismiss the appeal, or affirm the judgment.</p> <p>Id.—Rule as to Review upon Appeal—Authenticated Record Required.—It is the settled rule in this state that the proceedings in the trial court cannot be reviewed upon appeal unless such proceedings have been authenticated in the mode pointed out by law or by the rules of the appellate court.</p> <p>Id.—Unauthenticated Record—Reporter’s Notes not Certified Under Oath.—Under section 1247 of the Penal Code both the original reporter’s notes and each copy of a required transcript thereof must be duly certified under oath to be correct, and where the reporter’s notes ordered to be written up, are not certified under oath, his certificate is wanting in one of the most vital of the requisites of a proper or legal authentication, of the record, and it must be deemed unauthenticated.</p> <p>Id.—Mandatory Statute.—The provision of section 1247 relating to the manner in which the reporter shall authenticate the transcription of his notes is mandatory, and anything short of the authentication so prescribed amounts to a failure to comply with an imperative command of the statute.</p> <p>Id.—Method of Appeal—Improper Certificate by Reporter—Certificate by Judge a Nullity.—Under the present method of taking appeals in criminal eases, where the record must be deemed unauthenticated for want of the proper certificate by the phonographic reporter, the judge’s certificate, even if in substantial compliance with the statute, must be held to be a mere nullity, so far as any effect it may have as an authentication of the record on appeal.</p> <p>Id.—Effect of Authentication of Record—Method Provided—Substantial Departure—Authentic Appeal.—The authentication of the record on appeal of the proceedings of the trial court constitutes the evidence from which the reviewing court may determine whether the proceedings were had in the court below, and the legislature may contrive and provide any reasonable method of furnishing such evidence. When once the legislature prescribes a method for proving that the proceedings which are taken to a court of review have been had in the trial court, then any substantial departure from that method will render the appeal abortive.</p>

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

<p>Public Officers—Compensation of City Treasurer—Municipal Ordinance.-—Under a municipal ordinance, providing that “the city treasurer shall receive a salary of fifteen dollars per month, and the sum of one per cent on all moneys received and paid out by him as treasurer,” such city treasurer is not entitled to retain for himself both one per cent on all moneys received and one per cent on all moneys paid out, but only one per cent on all moneys both received and paid out by him.</p> <p>Id.—Adopted Construction ot Ordinance not Controlling.—An adopted construetion of the municipal ordinance as to the percentage of the city treasurer, in combining the percentage on all moneys received and paid out, is not controlling.</p> <p>Id.—Statutory Construction as to Compensation op Officers—Duty op Court.—Acts relating to the compensation of officers are strictly construed, and such officers are only entitled to what is duly given by law; and the court, in construing such an act, should simply ascertain and declare what is in substance contained therein, and not insert what has been omitted, or omit what has been inserted.</p>

<p>Fraud upon Creditors—Assignment op Interest in Estate—Findings as to Fraud Unsupported by Evidenoe—Under the evidence, it is held that the findings, in the present action on the issue of fraud upon creditors, or want of consideration, or as to any actual or constructive fraud, are not supported by the evidence.</p> <p>lb.—Actual and Constructive Fraud—Question op Fact—Pleading. Actual fraud is always a question of fact; and in order to constitute constructive fraud, as matter of law, it must be set forth digtinctly in a pleading alleging the fraudulent intent, under section 3442 of the Civil Code.</p> <p>Id.—Intent to Delay or Defraud Creditors—Question of Fact.— The transfer of property with the intent to delay or defraud creditors under section 3439 of the Civil Code, makes such intent a question of fact, which is not to be presumed from the mere fact of the transfer. A debtor may pay one creditor in preference to another; and it is only when the transfer is voluntary or without consideration, or in contemplation of insolvency, that it is void as to existing creditors.</p>

<p>Fire Insurance—'Building on Leased Ground—Insurable Interest.— A person who has erected a building on leased ground, under a lease which provides that it is “to revert to and become the property” of the lessor, upon the termination of the lease, has an insurable interest, to the extent of the profits derivable under the lease, and not to the value of the building.</p>

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

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

<p>Guaranty of Specified Amount of Goods- Sold on Credit—Limitation of Guaranty not a Limitation of Credit—Guarantor not Exonerated.—A guaranty of the payment of any goods sold on credit to a third person named, "provided the amount due or to become due shall at no time exceed the sum of one thousand dollars,” is a limitation upon the amount of the guarantor’s liability for credit, and not upon the amount of credit to be extended to such third person; and any further extension of credit beyond the amount so limited, does not exonerate the guarantor.</p> <p>Id.—Guaranty Construed as Continuing—Additional Debts Immaterial.—A guaranty limiting the amount for which the guarantor will be bound, but without limitation as to time, and without circumstances to evince a contrary intention, will, in general, be construed to be a continuing guaranty and operative till revoked. The guarantor will be held liable to the extent of his guaranty, though the principal debtor may have during the existence of the guaranty contracted debts equal to or greater than the sum named therein. The limitation in the guaranty refers to the amount of the guarantor’s liability, and not to the amount of - the dealing between the purchaser and the one who gives the credit.</p> <p>Id.—Construction of Ambiguous Guaranty—Protection of Creditor —Limitation upon Amount of Liability—Condition—-Any ambiguity in a contract of guaranty concerning the liability of the guarantor, will be resolved in favor of protecting the creditor to the extent of the sum named therein; and the ambiguous provision will be construed as a limitation upon the amount of the guarantor’s liability, rather than as a condition upon which any liability whatever attaches.</p>

<p>Action for Death Against Copartners—Negligence in Operation of Elevator—Pleading—Insufficient Complaint—Particulars Causing Death not Shown.—The complaint in an action 'for the death of plaintiff’s intestate as the result of the alleged negligent operation of an elevator, does not state a cause of action, where it fails to specify the particular act or acts of negligence which proximately caused the accident; and also fails to specify in what respect the elevator was negligently operated, or any facts having a causal connection with the death of plaintiff’s intestate.</p> <p>Id.—Mode of Pleading Negligence—General Terms—Particular Acts Negligently Done—Insufficient Charge of Negligence of Unskilled Employee.—While it is sufficient to charge negligence in general terms, it is necessary to specify the particular acts alleged to have been negligently done. It is not sufficient to charge that the elevator in question was then and there operated in a negligent manner by an incompetent and unskilled employee.</p> <p>Id.—Necessity of Deceased to be in Elevator Shaft not Shown— Legal Duty of Copartners to Operate Elevator not Averred. The complaint is further insufficient in not making it appear that it was necessary that the deceased should have been in the elevator shaft to do the work required of him by the corporation by which he was employed; and it must be assumed that any work so done by him was not any part of the work that the corporation, as a subcontractor, was employed by the copartners, as contractors, to perform. The complaint does not therefor show that the copartners owed to deceased any legal duty.</p> <p>Id.—Negligence Implies a Corresponding Duty—Showing of Legal Duty in Complaint Essential.—There can be no negligence without the existence of a corresponding duty. The complaint against •the copartners must set out facts showing by what duty, or by what right the injured person was on the premises at the time of receiving the injuries complained of, as causing his death, whether as a trespasser, a licensee, or an employee; otherwise, it will fail to state a cause of action.</p> <p>Id.—Effect of License to Come upon Premises.—The license to the deceased to come upon the premises would not give him the right to roam at will in a manner disconnected from and not pertaining to the business in hand.</p>

<p>PETITION for a Writ of Prohibition to the Superior Court of Mendocino County. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Husband and Wife—Medical Services for Minor Children—Necessaries of Life.—In determining the question whether a husband and wife, living together, are liable for medical services furnished for their minor children at the request of the husband, the inquiry should be whether such medical services are included in the common necessaries of life, which it is legally obligatory upon parents to provide for their minor children, which include, besides food, clothing, and shelter, such medical attentions in cases of illness as are requisite to relieve physical suffering and pain, and to overcome or conquer disease. .</p> <p>Id.-—Bequest op Husband for Medical Services for Children—Husband and Wife Living Together—Liability of Wife’s Separate Property.'—Where the medical services furnished for the minor children, as necessaries of life, were supplied at the request of the husband, while the husband and wife were living together, the separate property of the wife, acquired after marriage, otherwise than by devise or succession, is liable for the medical services so supplied under'the terms of section 171 of the Civil Code as amended in 1905.</p> <p>Id.—Parties—Joinder of Husband and Wife.—In order to bind the separate property of the wife to the extent of her statutory liability, as fixed by section 171 of the Civil Code, so that it may be taken for that purpose by a judgment obtained in an action instituted against the husband to recover for necessaries contracted for solely by him, it is necessary to make her a party to such action. The joinder of the wife with the husband is authorized by sections 382 and 383 of the Code of Civil Procedure.</p> <p>Id.—General Bule as to Parties.-—A person or his property should, under no circumstances, be bound by a judgment in an action to which he has not been made a party, and in which therefore he has not been accorded an opportunity to show that neither he nor his property should be so bound.</p> <p>Id.—Measure of Wife’s Liability as a Party.—The wife’s liability when joined as a party with her husband, is measured by the statute, and would necessarily be so measured and fixed by the judgment; and the suggestion that when the action is to- recover a judgment for necessaries, and a judgment is against her, her separate property, which is by section 171 of the Code of Civil Procedure exempt from execution, might be subjected to the satisfaction thereof, is without merit.</p> <p>Id.—Sufficiency of Complaint by Physician—“Necessaries”—Legal Conclusion.—Where the complaint alleges that the plaintiff is a physician and surgeon by profession, and that the amount sued for against the husband and the wife’s separate property, is due for services rendered by him for the defendants in his capacity of physician and surgeon, it states a sufficient cause of action, though it does not allege specially that the services rendered were for “necessaries.” Since medical services are legally included among • the necessaries of life, the mere statement that they were “necessaries” would involve a legal conclusion and add nothing to the force of the averments made.</p>

<p>Election Contest—Disqualification of Judge—Continuance Beyond Twenty Days—Procurement of Qualified Judge—Jurisdiction not Lost—Mandamus.—Where an election contest, owing to the disqualification of the judge, was continued beyond the twenty days’ limit fixed by section 1121 of the Code of Civil Procedure, in order that a judge qualified to try the contest may be procured, jurisdiction to hear the contest was not lost in such ease, but where it was deemed lost, mandamus will lie to compel the court to reset the contest for hearing.</p> <p>Id.—Failure to Try Cause for Want of Jurisdiction—Prior Demand and Refusal to Reset Cause not a Condition of Mandamus.— Where the court failed to reset and try the cause on the ground that jurisdiction to try the same had been lost, prior demand and refusal of the court to reset the contest for trial is not a condition precedent to a writ of mandamus to compel the court to reset the contest.</p> <p>Id.—Mandamus—Exception to Rule as to Demand and Refusal.— While it is the general rule that an officer will not he compelled by the writ of mandamus to do any thing which he has not been first asked to do, and has neglected or refused; yet where the attitude of the officer toward the matter has been officially declared to be such that an application to him would he idle and fruitless, the reason for the rule ceases, and the writ of mandamus will issue.</p>

<p>Guardianship—Change in Temporary Custody of Infant—Restrictions—Evidence Supporting Order—Certiorari.—An order removing an infant from the temporary custody of its paternal grandfather, who had applied for final letters of guardianship thereof, and restoring its temporary custody to its mother, subject to restrictions, pending the final hearing of the application, that a nurse to whom its mother had committed the charge thereof be retained as such, who should take the child daily to the home of its grandparents, and that the mother should be forbidden to take the child out of the city where the court was held, was a proper order, subject to such restrictions; and there being sufficient evidence to support it, as made, it cannot be annulled upon certiorari, on petition of its paternal grandfather.</p> <p>. Id.—Jurisdiction to Change Temporary Custody—Showing of Impbrilmbnt of Child’s Welfare.-—The court had jurisdiction to change the temporary custody of the child, pending the hearing of the petition, under the provisions of section 1747 of the Code of Civil Procedure, when it appears to the satisfaction of the court, either from a verified petition or upon affidavits, that the welfare of the minor will be imperiled if such minor is allowed to remain in the custody of the person then having the care of such minor.</p> <p>Id.—Mode of Procedure to Obtain Custody of Child.—Proceedings affecting infants and the appointment of guardians are special in their nature and must be had in accordance with the procedure outlined by the code. Where the first order appointing the grandfather, as temporary guardian of the child, was made without authority, it may be treated as of no effect. The superior court, before it was authorized to provide for a change in the temporary custody of the minor, must have had a proper motion presented to it, and some evidence to the fact that the best interests of the child would be imperiled unless such order was made.</p> <p>Id.—Proper Procedure by Mother—Sufficiency of Showing.—Where the mother’s procedure by motion was properly made, to secure a change in the temporary custody of the minor, if the action taken by the court thereunder, can be sustained by any evidence whatsoever which was presented to the superior judge, however slight that evidence may be, the appellate court will not disturb his conclusion.</p> <p>Id.—Construction of Code Provision—Best Interests of Child.—To say that the best interests of the child shall be imperiled before the action indicated by section 1747 of the Code of Civil Procedure can be taken, amounts to no more than to say that, whenever it appears to be for the best interests of the minor such change of custody may be ordered. The consideration for the welfare of the child is of first importance.</p> <p>Id.—Right of Parent of Minor to Custody not a Property Right-Discretion of Court.—The parent of a child has no property right therein, and the privilege of the parent to have the custody of the child is only a matter of right when the parent is found to be reasonably fitted to become such guardian, and the parent’s temporary custody pending the application of another person for guardianship, may be reasonably limited and restricted under the discretionary power of the court.</p>

<p>Unlawful Detainer—-Lease op Business Property—Repairs Ordered by Board op Health Made by Lessee—Absence op Duty op Lessor—Construction op Code.—In an action of unlawful detainer for rent unpaid under a lease of business property, in a building used as a box factory, in which a large number of persons are daily employed, the defendant cannot offset repairs made by Mm, which were ordered by the board of health, to be made which he had first requested the lessor to repair, since the building leased is not one “intended for the occupation- of human beings” in a “dwelling house” within the meaning of section 1941 of the Civil Code; nor, in the absence of an agreement in the lease to the contrary, could the lessor be in duty bound to make such repairs upon request, under section 1942 of the same code.</p> <p>Id.—Common Law Rule as to Repairs—Applicability in This State. At common law it is the well settled rule, that, in the absence of any agreement between the parties, the landlord is generally under no obligation to keep the demised premises in repair; and the common law rule in this respect is in force in this state, except as modified by sections 1941 and 1942 of the Civil Code.</p> <p>Id.—Headline op Section 1941 op Civil Code—Headnotes—Construction—Duty op Lessor as to Dwelling House.—The intention and purpose of the legislature in enacting section 1941 of the Civil Code, as originally adopted in the year 1872, is revealed by the headline, which reads “Lessor to make dwelling house fit for its purpose.” Headnotes which precede each article are numbered to correspond to the section following, "and purport to give in brief the subject of each of the sections. They are parts of the statute limiting and defining the sections to which they refer.</p> <p>Id.—Limited Duty of Landlord to Repair Building—-“Subsequent Dilapidations”—Limited Right of Defendant to Deduct Rent. Under sections 1941 and 1942 of the Civil Code, the only duty of the landlord, after putting a building into a fit condition for the occupation of human beings, is to “repair all subsequent dilapidations,” and the right given to the tenant under section 1942, that, “If within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where, the cost of such repairs does not require an expenditure greater than one month’s rent of the premises, and deduct the expenses of such repairs from the rent,” does not authorize the tenant to put in new work or new conveniences, which did not theretofore exist, and claim credit therefor.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County disallowing items claimed in a memorandum of costs filed in the Superior Court. Chas. Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Unlawful Detainer—Purchase by Plaintiffs Lessors of Title of Go-lessors—Action by Plaintiffs Sustainable.—Where the plaintiffs in an action of unlawful detainer for nonpayment of rent after proper demand and notice to pay, were part of the original lessors holding the title to the property, and prior to such demand and notice, the plaintiffs had by deeds acquired all of the title of their co-lessors, the plaintiffs as vendees of the whole title may maintain the action. The right to maintain it,' as such vendees, is expressly conferred by section 1161 of the Code of Civil Procedure, and by section 821 of the Civil Code.</p> <p>Id.—Attornment of Tenant to Plaintiffs not Required.—By the terms of section 1111 of the Civil Code, no attornment of the tenant to the plaintiffs as vendees of the whole title to the leased lands is necessary to sustain the action.</p> <p>Id.—Judgment by Default—Denial of Motion to Vacate—Admissions in Evasive Answer—Proper Discretion.—Where the defendant suffered a judgment by default and moved to vacate the same, upon the grounds of excusable neglect, inadvertence, and surprise; but in support thereof presented a proposed answer which was in form evasive, and must be construed as admitting the nonpayment of rent, service of notice and possession of the premises as alleged in the complaint, it is held that the court did not abuse its discretion in denying the motion.</p> <p>Id.—Assignment of Lease After Default—Retention of Possession —Error in Belief as to Exoneration not Ground of Motion.—. Where as a ground of the motion to vacate the judgment, the defendant set forth that prior to the commencement of the action he had assigned the lease to a third party, under the belief that he was thereby exonerated from liability, but it appears that he retained the possession after the default, and was in possession when the action was brought, his erroneous belief in that regard cannot avoid his liability in the action, and the court properly refused to vacate the judgment by default on that ground.</p> <p>Id.—Assignee of Lease Erroneously Substituted as Party by Ex Parte Order—Proper Vacation of Order—Defendant not Aggrieved.—An ex parte order substituting the assignee of the lease as a party defendant, was clearly erroneous, and was properly vacated. Where such assignee does not complain, as the only party aggrieved by the vacation of the order, the defendant is in no position to complain thereof.</p> <p>Id.—Stay of Proceedings Pending Appeal from Judgment—Discretion of Trial Court—Review upon Appeal—Supersedeas.—The power to stay proceedings upon a judgment in unlawful detainer is vested by virtue of section 1176 of the Code of Civil Procedure, in the trial judge, and in the absence of his direction this court has no power to order a supersedeas. A stay of proceedings pending an appeal in such a proceeding is not a matter of right, but one in the determination of which the court exercises large discretionary powers. While the action of the court in refusing to direct a stay is subject to review upon appeal, it cannot be reviewed upon an application for a writ of supersedeas.</p>

<p>Irrigation District—Construction of Act—Classes of Lands Entitled to Exclusion.—Section 78 of the Irrigation District Act provides that two distinct classes of lands shall be excluded therefrom: 1. Lands which are already irrigated and entitled to be irrigated “from another source”; and 2. Lands which are already irrigated and entitled' to be irrigated “by another system of irrigation works.”</p> <p>Id.-—Meaning of Terms “Another Source.”—The terms “another source” do not necessarily mean another system of irrigation works similar to that provided by the district claiming the land as part thereof. They mean, when considered in their natural signification, any source by which the lands are in fact being irrigated. The legislature had in mind the individual landowner who had succeeded in providing means for the complete irrigation of his land, although the same was limited to supplying water for his own individual needs.</p> <p>Id.-—Irrigation by Means of Pumping-plant—Right of Landowner to Exclusion from District.—Where it appears that a landowner prior and subsequently to the organization of the district, irrigated Ms lands exclusively from a pumping-plant and well, established on his own lands, and that he has never derived any benefit from the irrigation works of the district, the board of directors has no discretion to retain his lands within the district, and he is entitled to exclusion of the same therefrom.</p> <p>Id.—Participation of Landowner in Election Establishing District —Absence of Estoppel—Time for Exclusion of Lands not Fixed.—The fact that the owner of the lands irrigated by the well and pump participated in the election establishing the district, does • not estop him from thereafter filing a petition for the exclusion of Ms lands from the district, since the act contemplates no particular time within which such petition may be filed.</p> <p>Id.—Remedy for Refusal of Board to Exclude Lands—Mandamus. Where the board of directors has refused to exclude the lands of a petitioner whose lands are irrigated and entitled to be irrigated by means of a pumping-plant and well thereon, mandamus will lie to compel the board of directors to exclude the same from the irrigation district.</p> <p>Id.—Bules as to Mandamus—Control of Discretion—Abuses—Legal Bight.—As a general rule mandamus will not lie to control the discretion of a court or officer or to enforce its exercise in a particular manner; but nevertheless mandamus will lie to correct abuses of discretion, and also to enforce a particular action by the inferior tribunal or officer, where the law clearly establishes the petitioner’s right to such action.</p>

<p>Election Contest—Proper Rulings on Ballots—Proper Judgment. It is held that the court, in an election contest, properly excluded a ballot on which the cross was not in the voting square, but at a distance therefrom, and within the rectangular space containing the name of the candidate; and properly refused to exclude ballots properly stamped for one candidate, but containing an indistinct mark opposite the name of the other candidate produced by a blot occasioned in folding the ballot, and properly counted ballots not containing any distinguishing mark, and correctly determined all of the questions presented, and reached a proper judgment.</p>

<p>Action fob Legal Services—Alleged Breach of Written Contract fór One Thousand Five Hundred Dollars—Trial—Findings and Judgment for One Thousand Dollars—Appeal on Judgment-roll—Presumption.—In. an action to recover the sum of one thousand five hundred dollars, as alleged damages for the breach of a written contract to pay that sum for legal services, where an answer was filed, and a trial had, and the findings and judgment were for the sum of one thousand dollars, and the complaint did not aver nonpayment of the alleged damages, it is held upon an appeal by the plaintiff on the judgment-roll, that the court having found as a fact that the amount of the damages was the sum of one thousand dollars, it must be presumed that there was evidence to support the finding, as a basis for the conclusion that only that part of the amount agreed to be paid had accrued as damages.</p> <p>Id.—Measure of Damages Based upon Complaint.—In such action for breach of the alleged written contract to pay the sum of one thousand five hundred dollars as claimed in the complaint, the correctness of plaintiffs assertion that the amount of detriment caused by breach of contract such as the one sued upon will be deemed to be the amount due under the terms of the contract, with interest thereon, cannot be questioned, as such is the measure of damages declared by section 3302 of the Civil Code.</p> <p>Id.—Proper Denial of Plaintiff’s Motion for Different Judgment. Since the findings of fact under the pleadings support the judgment 'as entered by the trial court, the motion of the plaintiff for a different judgment in the sum of one thousand five hundred dollars was properly denied, and upon Ms appeal, the order denying the same must be affirmed.,</p>

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

<p>Action upon Alleged Contract to Employ School Teacher—Absence oe Meeting op Minds—Finding Against Contract—Review upon Appeal.—In an action upon an alleged contract by the defendants as a board of trustees of a school district to employ the plaintiff as a school teacher, to recover one year’s salary thereupon, where the findings and judgment were for the defendants, it is held upon appeal by the plaintiff, that though the evidence was substantially conflicting, there was sufficient evidence to justify the finding of the court that appellant did not bring it to the knowledge of the board, that she had accepted or would accept the offer made by the board, and that there was no meeting of minds such as would effect a contract of employment.</p>

<p>Criminal Law—Murder—Conviction upon Circumstantial Evidence —Instruction—Exclusion of Rational Hypothesis Other Than Guilt—Presumption upon Appeal.—Where the evidence upon which the defendant was convicted of the crime of murder was wholly circumstantial, and the court clearly and fully instructed the jury that where such evidence is relied upon to establish the guilt of the accused, it should be sufficient to exclude every rational hypothesis other than of guilt; upon defendant’s appeal the' appellate court will presume that the jury, in considering the circumstances established, followed such instruction, and determined by their verdict that the circumstances were inconsistent with any theory other than that the defendant committed the crime.</p> <p>Id.—Inference of Guilt or Innocence—Review upon Appeal—Question of Law not Presented.—Where the circumstances are such as to reasonably justify an inference of guilt, as found by the jury, the fact that an inference of innocence might likewise be reasonably drawn therefrom, does not present a question of law for review by an appellate court, any more than does a verdict based upon direct conflicting evidence; in neither case will the verdict be disturbed.</p> <p>Id.—Refusal of Requested Instruction not Prejudicial—Distrust of Willfully False Witness.—The refusal of the court, at defendant’s request, to instruct the jury that if they believed from the evidence that any witness had willfully testified falsely to any material fact they were at liberty to reject the other testimony of such witness, constituted no prejudicial error.</p> <p>Id.—Refusal of Request Covered by Court’s Charge.—It was not error to refuse a requested instruction which, in so far as it correctly stated the law, was covered by the charge of the court, which, taken as a whole, is full and complete, and well calculated to protect every right of the defendant.</p>

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

<p>Action fob Damages to Goods in Transit Against Carrier—Interstate Commerce Act—Jurisdiction of State Courts.—An action for damages to goods in transit based upon section 20 of the Interstate Commerce Act, as amended June 29, 1906, may be brought either in a federal or state court, where the amount involved is sufficient to make their jurisdiction concurrent. But where the amount involved is less than the jurisdictional sum fixed by the Judiciary Act, for the federal courts, jurisdiction is not confined to the Interstate Commerce Commission, but the state courts have jurisdiction of such an action based upon that section.</p> <p>Id.—Exclusive Jurisdiction of Federal Courts.—The federal courts have exclusive jurisdiction of suits for damages arising under section 8 o-f the Interstate Commerce Act, including damages for overcharges, or otherwise accruing thereunder, the forum being designed in section 9 of the act, in which such damages may be litigated, as being “any district court or circuit court of the United States of competent jurisdiction.” But this exclusive jurisdiction has no application to actions arising under section 20 of that act, •as amended.</p> <p>Id.—Sufficiency of Complaint in Action for Damages—Shipping Receipts Limiting Liability.—The sufficeney of the complaint in the action for damages, is not affected by the fact that the shipping receipts made part of the complaint show that the liability of each carrier was to be limited to' his own route, since the Interstate Commerce Act upon which the action is founded, declares that “no contract, receipt, rule or regulation shall exempt such carrier . . . from the liability hereby imposed.”</p>

<p>County Ordinance Regulating Liquor Traffic—Conflict With Local Option Law—Invalidity Under Constitution.—A county ordinance regulating the liquor traffic within the county limits, voted by the electors of the county under section 4058 of the Political Code, conflicts with the Local Option Act of April 4, 1911, “for the regulation of the traffic in alcoholic liquors,” and is invalid under section 11 of article XI of the constitution, providing that “any county, city, town, or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws.”</p> <p>Id.—Local Option Act a General Law.—The Local Option Act of 1911 is a general law, within the meaning of section 11 of article XI of the constitution. It provides a state wide scheme, by which “any incorporated city or town, or that portion of any supervisorial district, not included within the boundaries of any incorporated city or town,” may petition to the appropriate legislative body to call ■an election to determine "whether the sale of alcoholic liquors shall be licensed in such city, town, or supervisorial district outside of incorporated cities and towns.” That the county ordinance conflicts with such general law admits of no doubt.</p> <p>Id.—Construction of Local Option Act—Limits of Authorization to Call Election.—The Local Option Act does not authorize any county in its entirety, either inclusive or exclusive of incorporated cities and towns, to petition any legislative body to call an election for the purpose specified. The obvious intention of the legislature was to authorize each of the subdivisions of the county specified therein, to act independently of every other, in determining the question for itself, unaffected by the votes of any other of the subdivisions named therein.</p> <p>Id'.—Ordinance Under Initiative and Referendum Law—Effect of County Wide Vote upon Local Option Districts—Reasonable Interpretation of Law—Restriction of Scope.—Where the county ordinance regulating the liquor traffic was enacted by a county wide vote of the people pursuant to a law providing for the initiative and referendum, which vote would conflict with local option districts within the county, which cannot be allowed, such law must have a reasonable interpretation, so as to restrict its scope and operation to subjects of general concern to the people of the county over which they may properly legislate.</p> <p>Id.—Construction of Section 22 of Local Option Act.—The provision in section 22 of the Local Option Act that “nothing in this act shall be construed as putting any limitation, except such as are positively stated herein upon the police powers of cities, towns and counties,” means that the police powers of cities, towns and counties are not limited by the act, except that the question “whether the sale of intoxicating alcoholic liquors shall be licensed,” is a matter which the act has specifically conferred upon the incorporated cities and towns, and the supervisorial districts outside of the cities and towns to be acted upon each in its separate capacity. The county has no such right and is excluded therefrom; and its general police power cannot deprive the enumerated subdivisions of the powers conferred upon them only by the act.</p> <p>Id.—Habeas Corpus Under Unconstitutional Ordinance.—The writ of habeas corpus will lie to test the unconstitutionality of an ordinance, under which the prisoner is held for trial. The liberty of a citizen should not be taken from him, so as to put him to the expense and ignominy of a criminal prosecution upon a complaint having no warrant of law to support it. A void law is no law, and a prosecution under it is without the authority of law.</p>

<p>Order Granting New" Trial—Review upon Appeal—Limitation in Order.—It is only in rare instances, and upon very strong grounds, that an appellate court will set aside an order granting a new trial. Even though the order declares that the motion is granted for one or more reasons only, the appellate court is not precluded from considering any other assigned ground upon which the motion should have been granted, subject only to the limitation that the trial court may restrict the order granting the motion, so as to exclude as a ground of its action, the insufficiency of the evidence; but such exclusion, to be effectual, must be declared in the order itself.</p> <p>[d.—Review of Insufficiency of Evidence—Ground not Directly Excluded — Presumption — Established Rule — Discretion — Conflicting Evidence.—Where insufficiency of the evidence is one of the grounds of the motion for new trial and the order does not in direct language exclude this as a ground for granting the motion, it will be assumed that it was one of the grounds upon which the order was made, and the order will be affirmed, if the evidence was conflicting, under the established rule that the superior court is not only authorized, but that it is its duty to grant a new trial whenever, in its opinion the evidence upon which a former decision was made was insufficient to justify the decision. Its action in granting a new trial upon this ground is so far' a matter within its discretion that if there is any appreciable conflict in the evidence, it is not open to review upon appeal.</p> <p>Id.—Test of Error in Correct Instructions Misleading Jury-Ground for New Trial.—The test of error in correct instructions is whether they are misleading. If instructions correct, as abstract propositions, may have misled the jury, a new trial may be granted on that ground.</p> <p>Id.—Contract of Sale Through Brokers—Restriction upon Owner—• Conflicting Evidence—Trial Judge not Bound by "Verdict.— In an action to recover a broker’s commission, under a contract for the sale of land which provided that if the land was sold by the owner for a less sum than the contract price, without the consent of the brokers during the life of the contract, they would be entitled to,their full commissions, but that he could sell for the full contract price without the agency of the brokers, for a less commission specified, and the evidence as to the price at which the owner sold the land was conflicting, a verdict in favor of the brokers for the full commissions, was not conclusive upon the trial court, which could grant a new trial on the ground that the verdict was not supported by the evidence. .</p> <p>Ib.—Hearsay Evidence—Conversation of Plaintiff with Purchaser from Owner—Sale for Less Than Contract Price—Prejudicial Error.-—-Where the plaintiff in such action was permitted over objection to testify to a conversation with one who had agreed to purchase from the defendant owner, and had made a deposit thereon, in which he said “he would like to have bought the place from us, but he done a little better in dollars and cents,” such conversation had no relevance to efforts by the agents to secure a purchaser, but involved a hearsay declaration, which might have been considered by the jury as evidence of a sale for less than the contract price, to the prejudice of the defendant owner.</p> <p>Id.—Record Sustaining Order Granting New Trial.—As the record appears, it is held that the appellate court cannot say that there is no legal warrant for the order of the trial court granting a new trial, and that it must be affirmed.</p>

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

<p>Mandamus—Original Proceeding in Appellate Court—Dutt of Board op Supervisors as Election Canvassers.—The appellate court has jurisdiction in an original proceeding in mandamus, upon a proper showing, to direct the hoard of supervisors of a county, acting as a board of canvassers of the returns of an election for the office of presidential electors, to perform the duty imposed upon it by law as to the mode and manner of canvassing such returns; and where it appears that such duty is not being performed or is performed in a manner otherwise than provided by law, mandamus is a proper remedy.</p> <p>Id.—Sufficiency of Application for Writ.—It is held that, upon an examination of the application, for the writ of mandate and its amendments, the allegations therein contained are sufficiently specific and certain to- present the matters and things sought to be . interposed as a ground for the issuance of the writ, and that a demurrer thereto was properly overruled.</p> <p>Id.—Failure of Election Boards Properly to Sign Certificate to Lists—Signatures Properly Allowed by Canvassers—-Changes . not Permitted.—Where the boards of election in certain precincts had failed to sign the certificate to be attached to the lists, the canvassing board properly permitted such signatures. The duty of certifying such returns is purely ministerial, and may be completed seasonably, though such officers have neglected such duty at the time specified in the statute. But, at the time of such completion, there can he no modification or correction of the returns, and no addition or additions made thereto.</p> <p>[d.—Certifying Number of Votes for Candidates in Figures—Substantial Compliance With Statute—Returns not Invalidated. The fact that certain boards of election, in lieu of writing in long hand in the certificate the number of votes received by each candidate respectively, had inserted the number of votes so received in figures, shows a substantial compliance with the statute, and in no sense invalidated the returns.</p> <p>Id.—Certificate to Insert Names of Respective Candidates—Names Connected Therewith by Horizontal Lines—Substantial Compliance With Statute.—Where the returns in certain precincts show that the tally-sheets had printed thereon the names of the respective candidates, separated by horizontal lines extending uninterruptedly across the page designated for the tally-lists and across the opposite page upon which the certificate of the number of votes received by such candidate was printed, there appears a substantial compliance with the statute requiring the officers to insert in the certificate the names of the respective candidates.</p> <p>Id.—Improper Evidence of Witnesses Before Canvassing Board— Disregard of Testimony.'—Where the improper evidence of witnesses was received before the canvassing board, without warrant of law, but constituted no ground of action upon the part of the board in making the canvass, any such testimony must be disregarded.</p> <p>Id,—Construction of Statutory Provisions as Directory or Mandatory.—It is a recognized rule as to the construction of statutory provisions as directory or mandatory, that directory acts are such as are not of the substance of the thing provided for, but relate to matters of form, while matters of substance are to be construed as mandatory.</p> <p>Id.—Mandatory Provision as to Tally-lists.—Section 1258 of the Political Code, though containing some provisions which have been held directory, yet, in so far as it provides for the duty of clerks and the manner of placing tallies upon the tally-sheet as they are called aloud by the proper officer, and for the preservation of the tally-lists, is matter of substance, and is mandatory upon the election officers.</p> <p>Id.—Result of Election of Candidates to be Determined from Tally-lists.—The result of the election, or determination of the number of votes for any particular candidate, must be determined from an inspection of the tally-lists, which must control as to the election or non-election of a candidate.</p> <p>Id.—Effect of Certificate of Election—Declaration of Result Computed from Tally-lists—Tally-lists Controlling.—The certificate of election provided for in section 1174 of the Political Code, declaring the number of votes cast for the candidate named therein, as elected, is, in legal effect, only a declaration of the result of the computation from the tally-lists, and if incorrect or at variance with the tally-lists, the certificate must yield in importance to that of the tally-list itself.</p> <p>Id.—Duty of Board of Canvassers—Tally-lists to Control Action of Election Board.—When the tally-list is presented to the board of canvassers showing the same to have been kept or purporting to have been kept in the manner provided by section 1258 of 'the Political Code, the number of votes properly computed from such tallies shall be taken and received as the vote for an individual candidate at the election, even though the election board had declared» lesser or greater number than shown by the tally-sheets.</p> <p>Id.—Votes foe Presidential Electors in Precinct—Absence of Tally-marks as to One Elector.—Where the returns from a precinct in the county showed that one of the candidates for presidential elector received upwards of one hundred votes, as shown by the tally-marks, whereas another, as shown by the tally-marks, received five or six votes, while in other eases no tally-marks were set opposite the names of other candidates, yet the certificate showed that each of said candidates received a number of votes in excess of one hundred, it is held that in each case the vote of the precinct must be considered as shown by the tally-marks, and that a candidate receiving no tally-marks is entitled to no votes at such precinct.</p> <p>Id.—Duty of Canvassers to Compute and not Construe Effect of Returns.—The board of canvassers has no power to conjecture the number of votes received by any candidate, or to make inference that any candidate received votes in excess of the marks indicated by the tallies. Their duty is simply to compute, and not construe the effect of returns.</p> <p>Id.—Irregularities in Action of Board not Vitiating Returns.—The breaking of the sealed envelopes containing the precinct returns under the direction of the board prior to the time set for the opening thereof in public, and the permitting of the board of electors to insert in their certificates the total number of votes received by candidates, were irregularities contrary to the provisions of the statute, but under the circumstances appearing, constituted no good cause for rejecting the returns.</p>

<p>Action by Owners to Determine Adverse Claim Against Assignee of Mortgage—Tender of Amount Admitted Due not Required— Rule of Rescission Inapplicable.—An action may be maintained under section 738 of the Code of Civil Procedure by the owners in possession of real property to determine an adverse claim against the assignee of a mortgage encumbrance thereon, without any previous tender or offer to pay the amount due on the mortgage. In such case, the conditions necessary in an action to rescind the contract, do not apply.</p> <p>[d.—Assignee of Mortgage Put on Inquiry as to Rights of Mortgagor.—It is settled law in this state that one about to take an assignment of a mortgage is bound in his own interest to inquire of the mortgagor as to- the validity of the instrument and of the transaction on which it was founded, and as to the amount due, and whether the mortgagor has any defenses or set-offs to interpose against it; if he neglects to do this, he takes the mortgage subject to all infirmities or objections which could have been set up against it in the hands of the original mortgagee, being charged with knowledge of all facts which such an inquiry would have disclosed-.</p> <p>Id.—Pacts Claimed to Estop Plaintiffs must be Pleaded to be Relied on.—Pacts claimed to estop the plaintiffs from asserting that the note and mortgage were for less than the full amount, cannot be relied upon by the defendants unless the same are especially pleaded, where there was an opportunity to make such plea. In such case, no evidence as to an estoppel is admissible, and such evidence' cannot be considered by the court.</p> <p>Id.—Rule as to Effect of Acknowledgment of Deed Inapplicable to Acknowledgment of Mortgage Lien.—The rule as to the effect of an acknowledgment of a deed, that it is a public declaration of a fact upon which all persons may in good faith act, and which the grantor is estopped from attacking, has no application in this state when the question relates to a mortgage, which is but a lien and encumbrance upon the property.</p> <p>Id.—Evidence—Permitting Plaintiffs to Show Necessity to Borrow Elsewhere, on Failure of Mortgagee—Absence of Prejudicial Error.—It "is held that there was no prejudicial error in permitting the plaintiffs to show the necessity to borrow money elsewhere, by reason of the failure of the mortgagee to advance the money agreed. Such evidence could not have prejudiced the defendants in any view of the case.</p> <p>Id.—Finding as to Estoppel Unnecessary.—There being no issue as to estoppel, no finding upon that question was necessary.</p>

<p>Justices’ Court of Los Angeles Township—Process—Mode of Issuance—General Order an Illegal Substitute.—Where the justices’ court of Los Angeles township was created under sections 99 to 102b of the Code of Civil Procedure, and it is provided in section 102 of said code, that "all legal processes of every kind in actions or 'proceedings in said justices’ court shall be issued by the said justices’ clerk, upon the order of the presiding justice,” it is held that such provision of the statute cannot be annulled by the making of a general order as a substitute therefor by the presiding justice, directing the clerk to sign all legal process that was necessary to be signed, in and about the business of said justices’ court.</p> <p>Id.—Improper Summons—Failure of Jurisdiction of Person.—A summons issued from said court was improper and failed to give the court jurisdiction of the person of the defendant where it not only failed to comply with section. 102 of the Code of Civil Procedure, in not being issued upon the order of the presiding justice, but also failed to comply with section 100 thereof, in that it was not returnable, nor the defendant summoned to appear before either the presiding justice, .or before any other justice of the peace designated by him, and summoned him to appear generally before the justices’ court of Los Angeles township.</p> <p>Ib.—Code Requirements Mandatory.—Where the legislature, as here, creates a justice’s court with four justices, one of whom is a presiding justice, and by express provisions of law provides that the summons in. actions therein shall be issued by the clerk only upon order of the presiding justice, and that such process shall designate the justice before whom the defendant named therein shall be required to appear, a substantial compliance with such provisions must be deemed mandatory.</p> <p>Ib.—Noncompliance With Mandatory Law as to Summons—Judgment by Default not Supported.—In the absence of a compliance with the mandatory provisions of law as to summons, the court is without jurisdiction to render a judgment by default.</p> <p>Jb.—Conditions of Authority of Clerk to Issue Summons.—The clerk of the justices’ court of Dos Angeles township is without authority to issue summons in an action therein, unless, after the commencement thereof, the presiding justice makes an order in writing directing him so to do, and furthermore, the name of the justice in whose department the process is returnable and before whom the defendant is required to appear should be designated in the summons.</p>

<p>Election Beturns—Duty op Canvassing Board—Discrepancy Between Certificate and Tally-list—Power op Decision.—It is the duty of the canvassing board, in. making the abstract of the votes of an election, to consider the entire returns, to wit, the certificate of the election officers, the list of voters, and the tally-list; and when there is a discrepancy or conflict between the certificate of, the officers conducting it and the tally-list, as regards the number of votes east for a particular person, the canvassers, after comparing the certificate and tally-list with the list of voters returned, must decide which is correct, and make an abstract of the votes accordingly.</p> <p>Id.—Absence of Arbitrary Bule as to Duty and Power op Canvassers.—No arbitrary rule can be laid down as to the duty and power of the canvassers. Upon the proper comparison, the canvassers may be justified in counting the votes as shown by the tally-list, rather than the number stated in the certificate, and vice versa.</p> <p>Id.—Missing Beturns—Power op Canvassers to Supply Duplicate Held by Inspector.—Where the official returns from a precinct were missing and lost after their return to the county clerk, and could not be found after diligent search, the canvassers, after waiting six days, had the power to supply evidence of such returns from the official duplicate held in the custody of the inspector of elections, as required by law to. be kept. Such official duplicate may be resorted to, as lawful secondary evidence of the lost returns, to establish the result of the vote.</p> <p>Ep.—Canvass of Returns of Presidential Election—Representative Vote of Election Officers for First Elector—Certificate to All Electors in Each Group—Reasonable Assumption Against Fraud.—At a presidential election, each voter by voting alike for a group of electors, is in fact voting for the president of his choice. Upon a canvass of such returns, it is held to be a fair and reasonable conclusion from the facts appearing, that the returns as a whole justify the assumption that the election officers, as the count progressed, finding that the several names in each group were receiving the same votes, decided to tally against the first name in each group, as and for all in each group, while giving the certificate of election to each one of them. This assumption will acquit the election officers of fraud, in the certificates of election.</p> <p>Id.—Mandamus to Canvassers of Presidential Election in Certain Precincts not Permissible—Absence of Showing of Election Returns.—Mandamus will not lie to compel the board of canvassers to disregard the certificate of election, and require them to canvass the votes of presidential electors in certain precincts by exclusive reference to the tally-list therein, especially where there is no full showing as to the contents of the election returns in those particular precincts. In the absence of such showing, no. clear violation of a legal right appears to sustain the writ.</p> <p>Id.-—Mandamus in Discretion of Court—Clear Legal Right—Injustice or Wrong not Allowed.—Mandamus lies to a great extent in the discretion of the court. It should be allowed only to secure or protect a clear legal right, and should never be granted when its enforcement would work an injustice or accomplish a wrong.</p>

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

<p>Criminal Daw—Selling Liquor in “No License” Territory—Support op Verdict—Province op Jury.—Where the defendant was convicted of the offense of selling and furnishing alcoholic liquor to another within the boundaries of certain “no license” territory, it is held that the verdict is supported by the evidence, where the record shows affirmative evidence establishing all of the elements necessary to prove the charge as made against the defendant, and the appellate court cannot interfere with the verdict, or with the province of the jury to determine ail questions of fact.</p> <p>Id.—Indictment—Time of Committing Offense not a Material Ingredient—Proof Limited—Absence of Presumption of Offense Prior to Law.—An indictment filed May 25-, 1912, charging an offense committed on or about the nineteenth day of May, 1912, under a law which became operative November 6, 1911, though it does not make the time expressed in the indictment a material ingredient of the offense, within the meaning of section 955 of the Penal Code, yet the proof of such time is limited, and it may be proved at any time within the period subsequent to the date when the law became effective. It cannot be presumed it was intended to charge the crime as having been committed at a prior date, when the acts described constituted no offense under the law.</p> <p>Id.—Examination of Jurors as to State of Mind—Ground for Peremptory Challenges—Restriction of Examination.—It is held that sufficient latitude was allowed to the defendant in the examination of jurors as to their state of mind, as to bias or prejudice; but that it was not incumbent on the court to permit the examination to be unduly protracted, for the sole purpose of enabling defendant to decide as to whether he might desire to challenge peremptorily any of the jurors offered.</p> <p>Id.—Proper Denial of Challenges for Cause—Province of Trial Judge.—Though the answers of certain jurors disclosed a state of mind toward the defendant which seemed at first to border on prejudice, yet where they each asserted that they could try the defendant fairly, it was for the trial judge to determine that question, and under such a state of facts his rulings ought not to be disturbed.</p> <p>Id. —• Instruction — Use of Words “Give Away” as Applied to “Furnishing” Liquor not Objectionable—Matter of Proof.—An instruction to the effect that it was unlawful within “no license” territory, “to sell, furnish, distribute, or give away any alcoholic liquors,” is not objectionable in the use of the words, “give away,” as under the charge made a person described as "furnishing” liquor might be proved to be one who had given it away.</p>

<p>Action fob Money Paid fob. Repair of Motor Gar—Sufficiency of Complaint.—In an action to recover money paid on account of repair of a defective motor ear purchased from the defendant, where the first count of the complaint fully set forth the character of the defects which the motor ear developed after use, and these defects entitled the plaintiff to damages for breach of the contract, and alleged that defendant had attempted to repair the car and had failed, and had then authorized plaintiff to purchase the necessary material and employ the necessary labor for the repair of the same, which defendant agreed to repay, and that plaintiff expended the sum of $881.55 for the necessary material and employing the necessary labor, which sum remains wholly unpaid after demand therefor, a cause of action to recover that sum is stated.</p> <p>Id.—First Cause of Action Sustained by Proof.—It is held that the proof was amply sufficient to sustain the first cause of action stated in the complaint.</p> <p>Id.—Excessive Charge a Matter of Defense.—If the amount charged and claimed as having been necessarily expended in causing the repairs to be made was excessive or unreasonable, that was a matter of defense which the defendant was entitled to urge against such claim.</p>

<p>Exchange of Beal Property—Written Contract—Agreement by Each Owner With Broker—Payment of Agreed Share of Commission—Bight of Enforcement.—Where in a written contract for the exchange of real property, the owners agree respectively to pay to a real estate broker, who induced the exchange, his agreed share of the broker’s commissions, the broker, in the event of default of either 'owner, may enforce Ms rights under the contract against Mm.-</p> <p>Id.—Contract for Benefit of Third Person—Bight of Enforcement Under Code.—Under section 1559 of the Civil Code, “a contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” The contract made expressly for the benefit of the broker, not having been rescinded, may be enforced by him under that section, upon default made by either of the parties contracting in that regard.</p> <p>Id.—Claim of Misrepresentation by Party Sued—Conflicting Evidence—Support of Finding.—Where one of the defaulting parties sued, claimed that the broker had misrepresented as to the dimensions of the ground received by him in the exchange of properties, but the finding was in favor of the broker upon conflicting evidence, it cannot be disturbed upon appeal.</p>

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

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

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

<p>Divorce of Mother prom Father—Custody of Boy by Agreement— Modification of Decree—Award to Father for Care and Education—Conditions—Discretion not Abused.—Where a decree o'f divorce was obtained by a mother from the father on the alleged ground of extreme cruelty, but the decree of divorce awarded the custody of their young boy, then eight years of age, by agreement, for six months to each of them, and about two years after the interlocutory decree, the decree was modified so as to award his custody to the father for care and education at a suitable school, subject to the conditions that the mother should have his custody during vacations, with right to visit him at other times so as not to interfere with his attendance at school by such visits, it is held that the court did not abuse its discretion by so modifying the decree.</p> <p>Id.—Decree for Custody Under Agreement not Affecting Power of Court to Modify Decree.—The decree for the custody of the boy, pursuant to the agreement of the parties, which was confirmed thereby, cannot affect the power of the court to modify the decree as to such custody under section 138 of the Civil Code. A decree based upon such an agreement as to custody is simply provisional. The court is not bound to enforce the agreement; but a decree made in pursuance thereof, may be modified by the court, pursuant to the statute.</p> <p>Id.—Character of Divorce not Affecting Bight of Custody of Father.—It cannot be assumed that the decree of divorce for extreme cruelty was of such a character as rendered the father not a suitable custodian of the boy, in view of the terms of the decree as to his custody, by the agreement of the parties.</p> <p>Id.—Boy not of Tender Age Imperatively Bequiring Care of Mother —Proper Care of Father for Education at Suitable School.— It is held that a boy .past ten years old is not of such tender age-as imperatively to require the attention of his mother, where it appears that the household of the father, as constituted, may give the needed attention for his attendance at a suitable school under the father’s direction.</p> <p>Id.—Construction of Code .as to “Tender Tears”-—-Provision as to Guardianship not Controlling.—The provision of section 246 of the Civil Code that “other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor and business, then to the father,” is not to be controlled or affected by the provisions of the Code of Civil Procedure relating to guardianship, which contains no provision that every child under fourteen years of age is to be treated as a child of “tender years.” The sex and physical development is to be considered. There is no fixed or certain age of minority, which in all cases, and for all purposes can be said to constitute a child of “tender years.”</p> <p>Id.—Power op Court Over Custody op Children—Provisions as to Guardianship not Controlling.—The provisions of the Civil Code relating to guardians and wards in nowise control the power of the court, under section 138 of the Civil Code, in actions for divorce, to “make such order for the custody, care, . . . and support of such minor children as may seem necessary or proper.”</p>

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

<p>Venue—Okdek Refusing Change — Conflicting Affidavits — Review upon Appeal.—Upon appeal from an order refusing to change the place of trial of an action, where it appears that the affidavits presented to'the lower court were conflicting as to whether the moving defendant resided in the county of the venue or in another county • in which he claimed to reside, the rule for the guidance of the appellate court in reviewing such appeal is the same as where conflicting oral testimony is presented for review; and upon such appeal, the affidavits in favor of the prevailing party must be taken as true, and if a rational inference can be drawn therefrom in favor of the action of the lower court, it must be affirmed.</p> <p>Id.—Sufficient Showing of Residence in County of Venue.—Where in opposition to the affidavit of defendant as to residence in another county, three affidavits were submitted on behalf of the plaintiff, setting forth facts clearly showing that both at the time of the commencement of the action and at the time of making such aflidavits, the defendant was in possession of leased premises in the county of the venue, as her home and place of abode, such affidavits were sufficient to establish the residence of defendant in such county, and to sustain the action of the court.</p> <p>Id.—Nature of Residence.—Residence indicates permanency of occupation. If a party actually “lives” in a certain place, with the intention of remaining there indefinitely, that place must be said to be his residence. The abiding is with the intention of remaining when residence is acquired.</p>

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

<p>Action to Enforce Trust in Patents for Invention—Cause of Action not Stated—Agreed Transfer to Corporation—Interest in Stock—Conditions.'—A complaint in an action to enforce a trust in one-fourth interest in an invention of the defendant, which sets forth a written contract between the parties, that the patents, for the invention were to be transferred by the defendant to a corporation named, in which plaintiff was to have one-fourth interest in the stock, subject to certain payments to be made, and to the condition that the corporation should pay certain indebtedness to the defendant, and the expenses of obtaining the patents, states no cause of action.</p> <p>Id.—Proper Remedy Under Pacts Alleged—Specific Performance— Relief not Sought.—It is held that plaintiff by establishing all of the facts alleged, might have secured a decree requiring the defendant to specifically perform the obligations assumed toward the plaintiff, by transferring his patents and process to the corporation, and causing stock to be issued to plaintiff according to the agreed terms of the contract, but that the complaint was not designed with a view to securing that character of relief.</p> <p>Id.—Trial and Judgment for Plaintiff—Judgment Without Support.—Where, after demurrer overruled, the case was tried upon issues joined, and judgment was rendered for the plaintiff, but the indebtedness of the corporation to the defendant which was ascertained and stated in the contract to be the sum of nine thousand one hundred and sixty-two dollars, was not taken into account in adjusting plaintiffs interest in the patents; and where the court found that plaintiff had only paid six thousand dollars of the ten thousand dollars required to be paid in cash by her, and failed to find that she had offered to make all of the payments required to be made as a condition of obtaining the stock agreed to be transferred to her, the judgment for plaintiff is without support.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. J. P. Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Building Contract for Material and Labor—Bond for Full Performance—Abandonment of Contract—Material and Labor Unpaid—Liens—Payment and Completion by Owner—Liability of Surety.—Where by the terms of a building contract, the contractor agreed with an owner for the sum of seven thousand dollars to furnish all the material and labor necessary, to build and complete, according to plans and specifications, a two-story frame building within seventy-five working days, and upon its execution,'the surety company appealing gave a bond to secure its full performance, to which a copy of the contract was attached; and where the contractors, after a part performance, abandoned the contract, leaving debts for material and labor, for which liens accrued, which were paid by the owner, who completed the structure; it is held that the surety company is liable on its bond for the reasonable and necessary cost to the owner of completing the building, including the necessary payment so made, together with damages for the loss of rentals caused by the delay of the contractors to complete it within the time agreed.</p> <p>Id.—Case Disregarded as not Authoritative Against Liability of Surety as to Liens Paid by Owner.—The ease of Boas v. Maloney, 138 Cal. 10'5, [70 Pac. 1004], is disregarded as no longer authoritative against the liability of a surety for liens for unpaid labor and materials paid by the owner, who is compelled to complete the contract. That case is without present authority in this state, and is held to he counter to the great weight of authority in other jurisdictions on that question.</p> <p>Id.—Terms of Contract of Surety Company.—Upon the execution of the bond, the surety company became a party to the contract with the owner, and was bound by its provisions that the contractors would furnish materials and erect the structure and faithfully comply with all the terms, covenants, and conditions of the contract. A bond may incorporate by reference thereto other contracts or instruments, or it may be conditioned for performance thereof, in which case the bond and papers referred to should be read together and construed as a whole.</p> <p>Id.—Contracts of Suretyship to be Construed as Other Contracts. Section 2837 of the Civil Code provides that in interpreting the terms of a contract of suretyship the same rules are to be observed as in the case of other contracts. It is held that such construction means that the contract shall be fairly construed with a' view to effect the object for which it was given, and to accomplish the purpose for which it was designed, and is to be reasonably interpreted as other contracts are.</p> <p>Id.—Sufficiency of Evidence—Use of Materials for Liens Paid— Cost of Completion—Damages for Delay.—The evidence sufficiently shows that the materials represented by the claims of lien paid by the owner were used in the building, and sufficiently sustains the findings as to the reasonable cost of completion, and as to damages in the sum of three hundred and eighty dollars for delay in the completion of the building.</p> <p>Id.—Small Discrepancy as to Items of Cost—Modification of Judgment.-—-A small discrepancy in the sum of $14.67, in the items of cost, will not warrant a reversal,, but may be corrected by a modification of the judgment.</p> <p>Id.—Ruling on Petition for Rehearing—Opinion Sustained as to Case Disregarded as Authority.—The supreme court in denying a petition for rehearing, expresses agreement “with the reasoning of the district court of appeal to the effect that Boas v. Maloney, 138 Cal. 105, [70 Pac. 1004], is no longer to be regarded as authority.”</p>

<p>Action on Vermont Judgment—Laws of Vermont not Proved— Presumption of Identity With California Law.—In an action on a judgment rendered in the state of Vermont, in favor of a plaintiff suing in this state, and against a defendant sued herein, where no evidence was given as to the laws of Vermont, it will be presumed, in the absence of such proof, that the laws of that state, both statutory and as to the common law, are the same as the laws of this state.</p> <p>Id.—Necessity of Entering Judgment in Judgment-book.—Since under the laws of this state, section 668 of the Code of Civil Procedure, provides that “the clerk must keep, with the records of the court, a book to be called the ‘judgment-book,’ in which judgments must be entered,” and section 664 of the same code provides that, “In no case is a judgment effectual for any purpose until so entered,” a compliance with these provisions must substantially appear in the exemplification of the record of the Vermont judgment.</p> <p>Id.—Sufficient Proof of Entry of Vermont Judgment—'“Original Record”—Presumptions.—Where the exemplification of the Vermont judgment by the clerk of the court shows that “having inspected the records and proceedings” in his office there is found “a certain original record of a judgment,” a full copy of which is set forth and attested “a true record,” in view of the presumption in subdivision 15 of section 1963 of the Code of Civil Procedure that “official duty has been regularly performed,” it must also be presumed that the “original record” of the judgment was in a “judgment-book,” since in a legal sense there could be no “original record of a judgment” unless it was so entered.</p>

<p>Presidential Election—Canvass of Returns as to Electors Completed—Returns Certified to Secretary of State—Mandamus as to Tally-lists Disallowed.—Where the canvass of the returns at a presidential election as to electors has been completed by the board of supervisors sitting as a board of canvassers, and their returns have been certified to the secretary of state, and no fraud or mistake is shown as to their action, mandamus will not lie, in such ease, to compel the canvassers again to meet and canvass the returns in accordance with the tally-sheets, as distinguished from the aggregate shown by the certified returns.</p> <p>Id.—Conflicting Opinions of Appellate Courts as to Control of Tally-lists in CAnvass—Question not Here Involved.—Though the opinions of two appellate courts conflict as to whether the tally-lists shall control in making a canvass of the election returns, yet whatever may be the outcome of such conflicting opinions, the question is not necessary to be considered in determining the matter here involved.</p> <p>Id.—Rules as to Mandamus.—Mandamus will not issue for a “vain and nugatory purpose,” or on mere technical grounds. Its design is to do substantial justice and prevent substantial injury. It lies to a great extent in the discretion of the court. It should be allowed only to protect a clear legal right, and should never be granted where its enforcement would work an injustice or accomplish a wrong. Where the right is not clear nor the duty of the court imperative, the consequences to flow from granting the writ should be considered.</p>

<p>Action Against Officer and Surety—Pleading—Insufficient Answer—Admissions—Mandamus.—The plaintiff in an action on a verified complaint against a defendant sued as a member of a board of public works, and against a corporation defendant, sued as surety on the other defendant’s official bond, is not entitled to a writ of mandamus to compel the entry of the default of such defendants, by the county clerk, on the ground that their answer is insufficient in not averring the character and relations of the defendants. The failure of the defendants to answer the verified complaint, in that regard, admitted those allegations to be true.</p> <p>Id.—Absence of Official Power of Clerk to Pass upon Insufficiency of Answer.—Conceding the answer to be defective, irregular or insufficient to constitute a defense, the clerk has no judicial power to pass thereon. The clerk, in entering a default, acts ministerially, and in no case is he warranted in making such entry where his authority so to do depends upon a determination of the sufficiency, either as to substance or form of a document on file purporting to constitute an answer to the complaint.</p> <p>Id.—Power of Court to Determine Sufficiency of Answer—Default for Want of Answer Stricken Out—The question as to the sufficiency of the answer was one for the court to determine, either upon a motion for judgment on the pleadings, or upon a motion to strike the answer from the files. Upon the granting of the latter motion, there being no answer on file, and the time for pleading to the complaint having expired, the clerk would be warranted in entering a default.</p>

<p>Pibe Insurance — Reinsurance — Complaint to Adjust Loss Pro Rata—Defense — Pall of Building from Cause Other Than Pire.—Where the complaint upon a policy of reinsurance upon machinery, fixtures, and goods in a designated building, attached copies of the original policy and that of reinsurance, and sought an adjustment of the loss pro rata, as provided in the policy sued upon; but both policies provided that “if a building or any part thereof fall, except as a result of fire, all insurance by this policy on such building or its contents shall immediately cease,” it is held that, notwithstanding such pro rata provision, the defense may be set up that before the fire, a material and substantial part of said building had fallen from a cause other than fire, and that said building had fallen within the meaning of the policies, and that a general demurrer to said defense was improperly sustained.</p> <p>Id.—Liability of Reinsurer Dependent upon Terms of Contract.— The liability of a reinsurer, like that of a party to any other contract, must depend upon the terms of his contract. A liability cannot be imposed upon the reinsuring company for any loss for which it in plain terms provided exemption.</p> <p>Id.—Construction of Pro Rata Clause—Conflicting Provisions— Adjustment of Loss not Imposing Excepted Liability.—In construing the pro rata clause with other conflicting provisions, the rule must be applied that such provisions must be reconciled, if it can be done without doing violence to the language of the contract. Though the precise meaning of that clause is in doubt, yet it is held that the reinsured may not under the pro rata clause, by adjusting and paying a loss, impose a liability upon the reinsurer for a loss not covered by either the original policy or the reinsuring policy, but expressly excepted therefrom.</p> <p>Id.—Part of Answer Alleging Violation of Plaintiff’s Promise not to Adjust Loss Without Notice—Sustaining Demurrer not Prejudicial.—The court did not prejudicially err in sustaining plaintiff’s demurrer to part of the answer setting up the violation of plaintiff’s promise not to adjust the loss without notice thereof to defendant.</p>

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

<p>APPLICATION for Writ of Certiorari to annul certain orders of the Superior Court of the city and county of San Francisco vacating a former order for publication of notice to creditors, and making a new order therefor. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of Mariposa County granting a new trial. J. J. Trahuceo, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco foreclosing a mortgage. W. M. Conley, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action on Note—Judgment for Defendant—General Order Granting New Trial — Conflicting Evidence—Insufficiency of Evidence—Discretion.-—In an action on a note where the judgment was for the defendant, and an order granting a new trial to the plaintiff was in general terms, and one of the grounds of the motion was insufficiency of - the evidence to justify the decision, and it appears that the evidence was conflicting, under the well settled rule, it was within the discretion of the court to grant a new trial on that ground.</p> <p>Id.—Appeal from Order — Untenable Claim of Appellant—New Trial for Unpaid Interest on Note.—Upon an appeal from the order, it is held that there is nothing in the record that would justify the claim of the appellant that the new trial was granted merely to adjudicate unpaid interest on the note in suit. If it had been the intention of the trial court so to limit the order, it would undoubtedly have so made it to appear in the order granting the motion.</p> <p>Id.—Unlimited Order—Duty of Appellate Court.—The court not having limited its order in any way, this court is compelled to view it by the light of the settled rule in this state, and hold that if the order can be upheld upon any ground embodied in the notice of intention, it is the duty of the appellate court to sustain it.</p>

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

<p>Broker’s Commissions on Exchange of Land Unearned—Time Limit —Specified Terms—Abandonment by Broker—Less Favorable Exchange by Owner.—An action by the assignee of a broking firm to recover commissions on the exchange of real estate is not sustainable, where the exchange was not effected within the time limited by the defendant owner, or on the terms fixed by such owner, or at all; and where it appears that the broker abandoned further efforts to effect the proposed exchange, and that it was effected by the defendant personally on less favorable terms without any agency of the broker.</p> <p>Id.—Time Limit of Essence of Contract.—It must appear the broker performed Ms duty within the time limited by the contract. The limit for an acceptance of the offer of exchange made to be effected by the broker, was a time limit upon the employment of the broker. Time is always of the essence of a contract to sell or exchange real estate, where a time limit is placed upon the employment.</p> <p>Id.—Employment of Broker Particular.—It is held that the employment of the broker by the defendant was not generally to effect a sale or exchange of the defendant’s property, but only to procure an acceptance by the other owner of the offer to exchange and sell contained in the writing signed by the defendant. Under suck a contract, the broker could only recover on showing a compliance with the particular employment evidenced by .the writing.</p> <p>Id—Sufficiency of Findings and Evidence—Support of Judgment. It is held that the findings made by the court are sufficient to support the judgment for the defendant, and against the plaintiff as assignee of the broker firm, and that the evidence fully supports the findings.</p> <p>Id.—Absence of Prejudicial Ruling upon Evidence.—It is held that a ruling of the court in sustaining an objection to a question put on the cross-examination of the defendant, relative to a purported unsigned deposition of the defendant, was, even if erroneous, not prejudicial, and too unimportant to justify a new trial.</p>

<p>Forcible Detainer—Trespass—Preferential Homestead upon Sustained Contest of Desert Entry for Fraud in Land Department, No Defense.—In an action of forcible detainer, where the defendant trespassed upon the actual possession of the plaintiff, the fact that he entered as a preferential homestead claimant, upon a sustained contest in the land department of the United States, of a desert entry claimed by plaintiff as assignee, for fraud of his assignor in making the entry, is no defense to such action, and evidence of such defense should have been excluded.</p> <p>Id.—Unlawful Entry and Withholding of Property—Refusal to Surrender Possession upon Lawful Demand.—Since plaintiff was the occupant and in peaceable possession of the property, defendant’s entry thereon, during his absence, and without his consent, followed by refusal to make restoration thereof for a period of five days, after service "upon him of a demand in„ writing that he do so, was, as to plaintiff, unlawful within the meaning of the term as used in the statute. The entry being unlawful, the act of withholding was likewise unlawful.</p> <p>Id.—Limited Defense to Entry—Consent of Occupant—Rights Obtained from Another Source not a Proper Issue.—The defendant may show, as a limited defense to the entry that it was made with the consent of the occupant;; but where the entry is based upon an alleged right obtained from another source than such occupant, such fact is not a proper issue upon the trial of the ease. The word “unlawful” as used in the statute means unlawful with respect to the relations between the plaintiff and the defendant.</p> <p>Id.—Illustration of Untenable Defense to Forcible Detainer.— If A procure from B a contract to convey land to Mm, and B puts A in possession; and B thereafter claiming that A procured the contract by fraud, conveys the land to C, who, in A’s absence, enters upon the land without A’s consent, he cannot, in A’s action of forcible detainer justify the refusal to surrender the possession to A, by a showing of the alleged fraud and the subsequent grant by B to Mm. The position of the government in a like ease is not different from that of the individual.</p> <p>Id.—Possession of Plaintiff not to be Interfered With—Right to Day in Court.—Where it appears that plaintiff’s rights under Ms desert-land entry was recognized by the government for more than three years, the fact that a department of the government having power to ascertain the facts decided that such consent was procured by fraud, and gave to the defendant a homestead entry, did not warrant the defendant in entering upon plaintiff’s actual possession of the property, without his consent and against his will, thus depriving the plaintiff of the property without a day in court, in which the legality of the departmental decision could be determined.</p>

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

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

<p>New Trial—Statement — Stipulation as to Use of Evidence in Different Actions—Untenable Objection.—Where the same parties to separate actions, one of unlawful detainer, and one to quiet title, which were separately tried, stipulated that the evidence used in the action of unlawful detainer should be used, so far as applicable, in the action to quiet title, and upon judgment for defendant in both actions, the plaintiff in each moved for a new trial, upon a settled statement of the case, which was the same in both actions, it is held that the defendant who joined in the stipulation is not in a position t'o object that the same evidence was used in both statements, and that the evidence used in the action for unlawful detainer is irrelevant and immaterial to that used in the action to quiet title.</p> <p>Id.—Failure of Dependant to Offer Amendments to Proposed Statement in Action to Quiet Title—Settlement—Presumption upon Appeal—Similar Distinct Statement Immaterial.—• Since the defendant offered no proposed amendments to the proposed statement upon motion for a new trial, in the action to quiet title, it must be assumed upon appeal from the order granting a new trial in such action that the settled statement constitutes a correct statement of the evidence upon which the court, in the first instance, rendered the decision in such action, and upon which it subsequently made the order granting a new trial herein. The fact that the same settled statement was used on the appeal from the order granting a new trial in the action of unlawful detainer, cannot affect the validity of its use in the ease at bar.</p> <p>Id.—Filing of Settled Statement on Motion for New Trial—Filing Mark Indorsed by Former Clerk—Certificate of Successor.— Where the settled statement on motion for a new trial bore a filing . mark certified by the former clerk, the effect of which was sought to be overcome by the certificate of his successor that there is nothing upon the records to show that any such statement was ever filed as required by section 659 of the Code of Civil Procedure, it is held that the filing mark indorsed by the former clerk, though it is prima facie proof of the filing, is not the filing, but evidence thereof.</p> <p>Id.—Filing of Papers How Constituted.—To file a paper on the part of a party, is to place it in the official custody of the clerk, to be by him permanently kept among the papers of the ease, subject to an inspection of the same. Such an act, accompanied by the payment of any fee due therefor, constitutes a sufficient filing of papers.</p> <p>Id.—Settled Statement Deposited With Clerk in Proper Time for Use—Use at Hearing—Failure to Indorse Filing Mark not Vital.—It is sufficient that there can be no doubt that the statement settled for use in both eases was within the time prescribed therefor, deposited in the custody of the clerk, for use at the hearing in support of the plaintiff’s motion for a new trial, and that it was so used upon the hearing of said motion. Having so deposited it with the clerk, the plaintiff cannot be deprived of the use thereof, in support of his motion, on account of the failure of the clerk to indorse thereon the word “Filed,” with the day and date of such indorsement.</p>

<p>Order Granting New Trial—Review upon Appeal—Insufficiency of Evidence—Record not Showing Conflict—Question of Law. An order granting a new trial will not be disturbed upon appeal, where insufficiency of the evidence to justify the decision is one of the grounds specified in the notice of intention, and where the record upon appeal does not disclose whether or not the evidence was conflicting. It is only where the evidence shows an uncontradieted state of facts in favor of a party to an action that a question of law arises which an appellate court may consider.</p> <p>Id.—Presentation of Notice of Intention in Time—Filin g-^-Demand of Fees—Payment—Improper Change of Filing Mark Showing Loss of Right.—Where the notice of intention to move for a new trial was presented to the clerk within time and was marked filed, and subsequently the clerk demanded an additional fee from the moving party which was promptly paid, whereupon the clerk erased such filing mark, and made a new filing mark, which, if operative, would show a loss of the moving party’s rights, it is held that the trial court properly decided that such notice was filed when first tendered to the clerk and the first filing mark was placed thereon, and that the clerk possessed no right to erase the same and make a new filing mark.</p>

<p>Action for Damages fob Personal Injuries—Negligence—Fall of Passenger from Unlighted Train—Support of Verdict.—In an action for damages for personal injuries sustained by a female passenger in falling from an unlighted train at her place of destination, upon its arrival thereat after dark, it is held that the jury was warranted in finding that the place of her alighting and fall was exceedingly dark, and that the accident occurred by reason of the negligent failure of the defendant railroad company to maintain at that time sufficient light in and around its depot, to enable passengers carried by it in its trains to that place to alight therefrom in the night-time with safety, and that the appellate court is concluded by the verdict, as to the evidence supporting the same.</p> <p>Id.—Responsibility of Railroad Company to Maintain Sufficient Light.—The railroad company, in omitting, without just or legal excuse, to place sufficient light to aid the passengers transported by it on its trains, to alight therefrom at night with safety, was guilty of a violation of a plain legal duty it owes to the passengers thus carried by it. The law imposes on a railroad company engaged in carrying passengers for hire the duty of exercising reasonable care in keeping its platform, approaches thereto, and station grounds, as far as passengers would naturally resort to them, properly lighted at night, for a reasonable time next prior to and immediately following the departure of trains, which its time-cards specify will stop at night to take on or put off passengers.</p> <p>Id.—Extent of Traffic Immaterial to Legal Duty as to Light— Negligence.—It is a duty legally incumbent on common carriers to furnish sufficient light at night at their stations, whatever may be the extent or character of the traffic or business transacted thereat, to enable their passengers alighting from their passenger trains in the night-time, to do so with reasonable safety; and where they fail in such duty, through causes as to which they have control, they are guilty of culpable negligence.</p> <p>Id.—Question as to Reasonable Anticipation of Casualties.—The general rule that a carrier of passengers is not obliged to provide against casualties which have not been known to occur before, and which cannot be “reasonably anticipated,” has no application to the case of the omission of a railroad company to provide sufficient light at its station to enable a passenger to alight safely from its train at night-time. Where, in the conduct of a business, it must be known that unusual or uncommon danger must necessarily coexist with certain conditions which may be controlled, by the use of reasonable and available means, the law will hold casualties resulting from an omission to control such conditions, as being such as could be “reasonably anticipated,” against the happening of which it is the duty of the person conducting such business to adopt and enforce precautionary measures.</p> <p>Id.—Plaintiff not Chargeable With Contributory Negligence or Assumption of Risk—Duty to Alight—Peril Caused by Defendant—Question for Jury.—The plaintiff is not chargeable with contributory negligence in her attempt to alight, nor with an assumption of risk in making such attempt. It was her duty to leave the train at her place of destination. Her peril was caused by defendant’s negligence. The whole question was also one for the jury to determine, whose verdict concludes further question relative .thereto.</p> <p>Id.—Instruction as to Lighting not Contradictory—“Sufficient” and “Proper” Light.—An instruction that it is the duty of the railroad company to maintain sufficient light at its stations, is not in conflict with an instruction that it is its duty to keep the station properly lighted.</p> <p>Id.—Instruction as to Assumption of Risk Properly Disallowed.— An instruction based on the injured passenger’s knowledge of the premises, and her assumption of risk, notwithstanding defendant’s negligence in not lighting the premises, was properly disallowed.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of San Joaquin County rendered upon demurrer sustained without leave to amend. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales — Cows and Grain — Attachment — Replevin — Question op. Fraud—Depense—Want op “Actual and Continued Change op . Possession.”—In an action of replevin, involving the title to cows and grain sold to the plaintiff, and attached as the property of plaintiff’s vendor, it is held that the defense of the attaching creditor, based on the question of fraud in the sales, and pleading that the alleged sales of the cows and grain were not. accompanied by an “immediate delivery and an actual and continued change of possession” by the vendor of the plaintiff, as required by section 3MO of the Civil Code, to protect the same from the reach of the creditors of the vendor, is tenable, under the proofs in the case.</p> <p>Id.—Object op Statute—Substantial Observance Required.—Care should be taken to keep in view the object of the statute which is to require notice to the world of the transfer of personal property, in order that creditors may be justly protected; and nothing less than a substantial observance of its salutary provisions should be required.</p> <p>Id.—Rule op Statute not to be Relaxed—Honesty op Sale or Hardship No Ground por Disregarding Statute.—The rule prescribed by the statute is not to be relaxed by judicial interpretation. However honest the sale may be, and whatever hardship may be inflicted upon the vendor, this furnishes no reason for disregarding the plain provisions of the statute, or setting at naught its whole sane and salutary rule for the preservation of personal honesty and commercial security.</p> <p>Id.—Other Alleged Purchases not Concluded Fraudulent.—It is held that other alleged purchases, than the cows and grain, stand upon a somewhat different footing, and that while they present a debatable question, the appellate court is not prepared to say that the evidence compels the conclusion that they were fraudulent.</p> <p>Id.—Argument op Case Tried by Court—Discretion op Judge—Better Practice.—Though there is no statutory rule requiring the argument of a case tried by the court, and there is reason for .leaving the matter to the wise discretion of the judge; yet, where there is room for argument, it would be the better practice to permit it.</p>

<p>Vendor and Purchaser—Contract to Purchase Land—Time of Essence—Forfeiture of Bight—Absence of Bescission—Contract “at End”—Purchase Money not Becoverable.—Where a contract to purchase land made time of the essence of the contract, and provided that in the event of the failure of the purchaser to comply with the terms of the contract before the time fixed for the deed, without any deed made, the purchaser shall be deemed in default, and shall forfeit all rights under the contract, notice given to the purchaser, after such default, that the contract is “at an end,” does not constitute a rescission of the contract, or give to the purchaser any right to recover any part of the purchase money paid. The contract is “at an end” either with or without any formal notice, for inability of the purchaser to make payments.</p> <p>Id.—Bight of Vendor to Betain Purchase Money After Default Independent of Express Contract.—The right of the vendor to retain the part of the purchase price paid after the default of the purchaser is independent of any express clause in the contract for forfeiture of rights, or for retention of the purchase money as liquidated damages. Such clauses are merely declaratory in express terms of the legal rights under such a contract without them, and the validity of such express clauses is immaterial.</p> <p>Id.—Bescission When Effected.—It is only where the vendor, after •the default of the purchaser, agrees to a mutual abandonment and rescission of the contract, that the purchaser is entitled to recover the purchase money paid.</p> <p>Id.—Rescission When not Effected.—Upon default of the purchaser without excuse to perform the conditions of the contract, the more service of a notice on him by the vendor, calling his attention to the particulars in which the default consisted and declaring the contract forfeited, and all the interest of the vendee to be terminated, and demanding possession of the property, and the subsequent taking possession by the vendor and his bringing an action to quiet the title thereto, did not constitute a rescission of the contract by mutual consent, so as to give the purchaser a right of action against the vendor to recover the purchase money paid under the contract.</p>

<p>APPEAL from a judgment rendered upon demurrer to a petition for a writ of mandate in the Superior Court of San Benito County. M. T. Dooling, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Joint Action in Justices’ Court for Services—Appeal—Refusal to Dismiss—Failure, to Serve Codefendant—Absence of Judgment —Certiorari.—Where there was a joint action in the justices’ court for services, and upon appeal to the superior court there, was a motion to dismiss the appeal on the ground that the codefendant had not been served with the notice of the appeal, which was denied, the order refusing to dismiss such appeal, will not be annulled upon certiorari, where it appears that no judgment had been rendered against such codefendant.</p> <p>Appeal—Notice Limited to “Adverse Party”—Nature of “Adverse Party.”—Upon appeal the service of the notice is only required to be made upon an “adverse party” who is such within the meaning of section 940 of the Code of Civil Procedure, which is one “whose interest in the subject matter of the appeal is adverse to or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken.”</p>

<p>Criminal Law—Bigamy-—Alternative Jurisdiction—Place of Trial in County Where Defendant was Apprehended.—Under section 785 of the Penal Code, where the offense of bigamy or incest is committed in one county, and the defendant is apprehended in another county, the jurisdiction is in either county. That section is a legislative declaration that the venue of the action, which is synonymous with the place of trial, may be in the county in which the defendant is apprehended.</p> <p>Id.—Code Section Constitutional—Bight to Jury Trial in County of “Vicinage” not Violated.—There is no constitutional restriction upon the legislative power to determine the place of trial of the criminal action for bigamy, nor is there any unconstitutional derogation of the right to a jury trial in the county of the “vicinage.” In modern use, the county of the “vicinage” in which a jury trial must be had, is the body of the county in which the trial by jury is properly had, under the legislative determination as to the place of trial of such criminal action.</p>

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

<p>APPEAL from an order of the Superior Court of Inyo County denying a new trial. Wm. D. Dehy, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Untenable Action by Vendor of Piano Under Conditional Sale— Improper Findings.—An action cannot be sustained by the vendor of a piano conditionally sold to the defendant to recover the same, under findings, consisting of a jumble of both law and fact, that the title to the piano did not ve^t in the defendant, by reason of an action brought by plaintiff in the exercise of its option to recover the purchase money which defendant had agreed to pay, that the taking of the piano by plaintiff under a writ of attachment, and storing in plaintiff’s' warehouse was a recaption thereof by plaintiff, and that under the terms of the contract title could not vest in defendant without her assent, and that she never assented thereto.</p> <p>Id.—Conditional Sale op Piano—Reservation op Title in Vendor Until Poll Payment — Security—Provision por Benefit of Vendor—Right of Waiver.—The provision of the contract for the conditional sale of the piano to the effect that the title should remain in the plaintiff as vendor thereof until payment of the full purchase price thereof, was inserted for the purpose of securing such payment, and therefore was for the benefit alone of the vendor, and it had the right to waive the provision for its sole benefit.</p> <p>Id.—Waiver of Right to Retake Piano by Action for Purchase Money—Election—Title Vested in Defendant.—The plaintiff could not retake the piano and also sue for the price thereof. Therefore, when it brought this action for the purchase money, it waived its right to retake possession and elected to enforce payment. Having exercised its option to sue, it was debarred from all right to recover the property under a claim that title had not passed to defendant. The legal effect of such election was immediately to vest in defendant title to the piano as completely as though defendant had made full payment therefor.</p> <p>Id.—Defendant’s Title Subject to Attachment and Execution— Deposit by Sheriff in Plaintiff’s Warehouse not a Recaption op Piano by Plaintiff Under Contract.—The title of the defendant may be subject to the lien of an attachment in the action for the purchase money, or to a sale under execution on the judgment. But the deposit by the sheriff of the attached piano in plaintiff’s warehouse, was in no sense a recaption thereof by plaintiff under the terms of the contract, which only authorizes a retaking thereof by plaintiff without legal process. The defendant under the attachment might repossess the piano, either by paying the debt, or by bond for its release.</p>

<p>Pleading—Trial upon Amended Complaint — Original Complaint Superseded—Error in Overruling Demurrer Immaterial.—Where issues were joined and a trial had upon an amended complaint, the original complaint is thereby superseded, and alleged error in overruling a demurrer to the original complaint is immaterial. This rule of supersedure applies to an amendment to the complaint to conform to the proofs.</p> <p>Id.—Amendment of Complaint to Conform to Proofs—Discretion— Issues not Retried—Presumption.—It is not an abuse of discretion to allow an amendment of the complaint to conform to the proofs, without having the issues retried, though issue was formally joined upon the subject matter of the amendment, where the record shows that there was evidence before the court upon the very matter embraced in the amendment. It must be presumed in such case that no objection was made to the amendment, and that defendants were content to submit the formal issues thus joined on the evidence already before the court. If defendants desired further evidence, they should have so advised the court. They were not entitled to retry the case.</p> <p>Constructive Trust—Deed of Land by Aged Father to Daughter— Parol Agreement — Equal Division Among Four Children at Death—Breach—Enforcement in Equity.—Where an aged father, implicitly relying on Ms daughter’s promise that she would divide his land equally among his four children at Ms death, had deeded ■the land to her, and there was a breach of such agreement by the daughter, who after her father’s death, claimed the property as her own, a court of equity will enforce a constructive trust against her at the instance of the other three children, by compelling .a conveyance of the one-fourth interest to wMch each of them is entitled.</p> <p>Id.i—Sufficiency of Proof of Trust Under Conveyance by Parol Evidence—Rule as to Convincing Proof Fully Met.—The rule that, in order to prove a trust by parol' evidence under a conveyance absolute in its terms, the evidence must be clear, absolute, and convincing, is held to have been fully met by the parol evidence in the present ease.</p> <p>Id.—Evidence Properly Admitted—Offer of Trust Declined by Other Children — Agreement upon Daughter — Promise of Daughter in Their Presence Before Deed.—Evidence was admissible to show that in the negotiations for a trust, it was offered by the father to other children, each of whom declined the same, that they agreed that the trust should be placed in the daughter, and to show the promise of the daughter in their presence to the father before the deed was signed: “You know I will do right. I will share with the others equally.”</p> <p>Id.—Construction of Code—-Bules as to Parol Evidence—Trust by Confidence and Conduct—Bule as to Express Trust Inapplicable—Trust “by Operation of Law.”—A trust arising out of personal confidence reposed in and voluntarily accepted by one for the benefit of another, under section 2216 of the Civil Code, and which is violated by personal conduct under section 2224 thereof, may be proved by parol evidence. The rule as to express trusts prohibited under sections 847 and 857 of the Civil Code, and as to trusts created by written instruments under subdivisions 1 and 2 of section 852 of that code, has no application to trusts created “by operation of law,” under' subdivision 3 of that section, which are not required to be in writing.</p>

<p>Bankruptcy—Transfer op Nonexmpt Property to Defraud Creditors—Recovery by Trustee.—Under section.70 of the Bankruptcy-Law, the trustee of the estate of a bankrupt is vested with the title of the bankrupt as to all property not exempt from execution, and may avoid such property transferred by him in fraud of his creditors, which any creditor of said bankrupt might have avoided, and may recover the property so transferred, or its value from the person to whom it was transferred, unless he was a tona fide holder for value prior to the date of adjudication.</p> <p>Id.—Pleading—Sufficiency of Complaint by Trustee—Fraudulent Transfer—Want of Immediate Delivery and Actual and Continued Change of Possession.—A complaint by the trustee in bankruptcy in an action to avoid a fraudulent transfer by the bankrupt which alleges that the bankrupt was at all times insolvent, that the pretended transfer was made to defraud his creditors, and that there was no immediate delivery of the property transferred, and no actual and continued change of possession thereof, and that the effect of said transfer was to prevent the enforcement of the claims of the creditors, states a sufficient case for the exercise of the trustee’s authority.</p> <p>Id.—Evidence — Ground of Fraudulent Transfer—Question of Change of Possession—Exemption from Execution—Construction of Civil Code.—Since under the evidence the only ground upon which the transfer of the property involved could be held to be fraudulent, is that under the terms of section 3440 of the Civil Code, there was the want of an immediate delivery and an actual and continued change of possession, a conclusive presumption of fraud in the transfer would be indulged on that ground, were it not that that section also provides that it shall not apply to property that is exempt from execution, it appearing that such exemption was involved in the issues.</p> <p>Id.—Findings—Failure to Find upon Exemption Pleaded—Improper Finding as to Waiver of Exemption — Property Sold Before Bankruptcy.—Where the court did not find upon the issues as to the exemption of the property from execution pleaded in the answer, its finding that the defendant “did not claim any part of said „ described personal property so transferred to defendant as above set forth to be exempt in his schedule of bankruptcy, or in said bankruptcy proceedings, or at all,” and “has waived any and all claim or right to any exemption of said personal property that he might otherwise have been entitled to assert or claim,” is not tenable, since before the bankruptcy proceedings w§re begun, defendant had sold the property, and could not properly claim in his schedule property which he did not then own.</p> <p>Id.—Burden upon Defendant to Plead Exemption — Exception to General Rule—Case Distinguished.—Since the plaintiff relied upon the general rule as to immediate delivery, and actual and continued change of possession, and the defendant relied upon an exception to the general rule on the question of exemption from execution, it was incumbent on the defendant to set forth in his answer the facts showing such exemption. Barton v. Brown, 68 Cal. 11, [8 Pac. 517] distinguished.</p> <p>Costs—Right of Recovery Statutory.—The right to recover costs is statutory, and in the absence of a statute no costs can be recovered by either party. It is held that there is no provision of statute, requiring the defendant to pay the expenses incurred by the plaintiff in filing a proper bond to take possession of the personal property in dispute, pendente lite.</p> <p>Id.—Opinion of Supreme Court on Order Denying Rehearing—Explanation of Case of Barton v. Brown — Inapplicability to Present Case.—Upon an order of the supreme court denying a rehearing, it is held that, in further explanation of the case of Barton v. Brown, 68 Cal. 11, [8 Pac. 517], referred to in the opinion of the district court of appeal, that at the time that case was decided, section 3440 of the Civil Code did not contain the proviso declaring that its provisions should not apply to a transfer of property exempt from execution, which was first added by the amendment of 1903, [Stats. 1903, p. 111]. The decision, is inapplicable to the present ease, and is not in conflict therewith.</p> <p>Id.—Appeal from Order Taxing Costs—Review—Amount Immaterial. It is settled that the amount of money involved in an appeal from an order of the superior court taxing costs is not determinative of the jurisdiction of the appellate court to review the same, and such appeal cannot properly be dismissed, regardless of amount involved.</p>

<p>Order Vacating Default Judgment—Appeal—Notice of Motion to Vacate—Ground—Construction of Affidavit and Motion—Premature Default.—Upon appeal from an order vacating a judgment by default, upon a fair construction of an affidavit attached to the motion and forming a part thereof, which states facts clearly showing that the default was prematurely entered, it appears from a fair construction of the affidavit and motion taken together, that the notice of the motion to vacate the judgment was upon that ground.</p> <p>Id.—Insufficient Affidavit of Merits as to Defense.—An affidavit of merits which merely states “that affiant was fully advised of the facts and circumstances involved in the defense” is insufficient.</p> <p>Id.—Affidavit of Merits'Required Under Section 473, Code of Civil Procedure—Not Required Under Motion to Vacate Premature Default Judgment.—It is to be assumed that an affidavit of merits is required in proceedings for relief under section 473 of the Code of Civil Procedure. But no affidavit of merits is required in a proceeding by motion made and granted to vacate a judgment by default, as having been prematurely entered.</p> <p>Id.—Presumption—Verifying Motion to Vacate — Calendar — Enlarged Time to Answer—Protection Equal to Time of Summons —Affidavit of Merits not Required Under Summons.—The court having before it the ground of the motion to vacate the premature judgment stated in the affidavit, it could, and it will be presumed that it did verify it by its calendar, and finding that the default and judgment were in disobedience of its order granting further time to answer, properly vacated the same. An enlarged time to answer is as complete a protection as is 'the original time granted by the summons, in which latter case, it is settled that, for protection, no affidavit of merits is requisite.</p>

<p>APPEAL from an order of the Superior Court oE Yolo County setting aside a verdict. K. S. Mahon, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>APPEAL from an order of the Superior Court of Alameda County dissolving a temporary restraining order. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Sale of Electric Engine to be Installed—Warranty—Breach— Defense to Action for Purchase Price—Support of Findings.— Where an electric engine was sold under a contract for its installation, at a total price, with a warranty as to material and workmanship, in an action to recover the purchase price by an assignee of the vendors, the defendant may plead such warranty under the contract, and its breach, and his refusal to accept the work, and that plaintiff’s assignors undertook to cure the defects, but wholly failed to do so, and left the engine in a dismantled condition. It is held that findings in favor of such defense are supported by sufficient evidence.</p> <p>Id—Acceptance of Engine Under Contract not Shown—Efforts to Discover Defects and Possibility of Operation.—Notwithstanding a clause in the alleged contract provided that operation of the engine should constitute an acceptance thereof, there was no acceptance thereunder within its meaning, where there was no operation under a performed contract, but the only operation of both parties was to discover existing defects, and determine whether or not the engine could b.e made to operate.</p> <p>Id.—Objections to Evidence as to Condition of Engine—Absence of Prejudicial Error.—There was no prejudicial error in admitting the declarations of servants of plaintiff’s assignors sent to repair defects in the engine, that it had been improperly installed, . and could not be put in condition; nor in refusing to allow plaintiff to show the value of the plant installed in its uncompleted and imperfect condition, which he was not entitled to recover.</p>

<p>Action to Becover Money Paid by Mistake—Issues of Pact—Ground of Special Demurrer—Trial of Issues.—In an action to recover money paid by mistake, in which by the denials in the answer, issues were taken upon the material allegations of the complaint, which were sufficiently clear and free from ambiguity or uncertainty, it is held that, although there were grounds of special demurrer to the answer, which, even if they were sustained, there still would remain sufficient in the answer to entitle the defendants to require the plaintiff to make proof on the trial of his statements.</p> <p>Id.—Effect of Sustaining Special Demurrer—Order Striking Out. Where a pleading contains sufficient to make a good cause of action or a good defense, the effect of sustaining a special demurrer thereto is no different than that which results when a motion to strike out has been granted. Where such demurrer is sustained, and the party fails to amend, that portion of the pleading so demurred to will be taken out of view for the purposes of the trial, and be deemed to have been stricken out. •</p> <p>Id.—Explanation by Supreme Court on Order Denying Rehearing.— The supreme court, in its order denying a rehearing, quotes the foregoing syllabus, and holds that it “is considered correct, if the term ‘special demurrer’ be limited to a demurrer to some particular detached portion of the answer, as, for instance, if a demurrer be limited to a counterclaim set up in the answer, the answer also denying the allegations of the complaint, the sustaining of the demurrer and failure to amend, could not affect the remainder of the answer.”</p> <p>Id.—Insufficient Counterclaim on Note Secured by “Deed of Trust.” Where a counterclaim on a note secured by a “deed of trust,” which is past due and unpaid, does not set forth the nature and terms of such security, or of the contract by which the note is secured, or whether the instrument so denominated, conveyed title to a trustee with power of sale, or whether it was in such terms as to require an action of foreclosure to be brought, the counterclaim, upon such note is insufficient. In order that facts may be sufficient' to constitute a good cause of action on such counterclaim, it must be made to appear that the contract of security was such as to relieve the creditor from the obligation of exhausting his security before pursuing a personal action, which does not appear; and a demurrer to such counterclaim should be sustained.</p> <p>Id.—Insufficient Other Causes of Counterclaim not Separately Stated—Demurrer.—Where a second alleged counterclaim contained the statement of several causes of counterclaim, one for goods, wares, and merchandise sold, one for rents, and for money loaned and advanced, these causes of counterclaim should have been separately stated, and that objection was properly raised by the demurrer thereto, under section 444 of the Code of Civil Procedure.</p>

<p>APPEAL from a 'judgment of the Superior Court of Los Angeles County. F. B. Densmore, Judge, presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

APPEAL -from a judgment of the Superior Court of Mendocino County and from an order refusing a new trial. J. Q. White, Judge. The facts are stated in the opinion' of the court.

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

<p>Broker’s Commissions not Recoverable—Sale of Property Otherwise Effected.—Where a real estate owner, without other consideration than the mutual covenants implied in the contract, made plaintiff her sole agent for an indefinite period, though it would prevent the making of any other such contract during its existence, yet it does not confer an exclusive right of sale, and where a sale was otherwise effected by the owner of the property, no broker’s commissions are recoverable for the sale so effected.</p> <p>Id.—Right of Owner to Revoke Agency—Right of Sale Without Express Revocation.—The owner had the right to revoke the agency at any time before a purchaser was secured, since the agreement did not confer upon the agent an exclusive right of sale, although no Other agency could be conferred during its existence; yet the owner may sell the property or accept an offer to sell the same, without express revocation of the agency.</p> <p>Id.—Procuring Cause of Sale—Negotiation of Broker With Wife— Sale by Husband to Owner—Special Terms—Conflicting Evidence.—Where the broker had procured the name of a wife as a proposed purchaser, and the husband subsequently negotiated a sale directly with the owner, upon special terms, which he would not have negotiated through the agency of the broker, the most that can be claimed, in an action by the broker for Ms commissions, is that the evidence is conflicting as to the procuring cause of the sale.</p> <p>Id.—Proposed Purchase—Sale of Mere Option.—The payment by a proposed purchaser of the sum of two thousand dollars, with a proviso that if the proposed purchaser does not pay a large proposed purchase price in full, such deposit should be forfeited, without any promise to pay the purchase money, is not a sale of the property, but the sale of a mere option to purchase, which cannot affect the right of the owner to make a different sale of the property on less favorable terms, even though such proposed purchaser might have bought the property on such reduced terms, if known.</p>

<p>Appeal prom Order Denying New Trial—Order Reversed upon Stipulation.—Agreeably to the stipulation of the parties, the order denying a new trial is reversed on the authority of People v. Quong Sing, ante, p. 26.</p>

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

<p>PETITION for Writ of Mandate to the Board of Supervisors of San Joaquin County.</p>