Volume 21 — California Appellate Reports

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

<p>Lease of Office Building—Covenant of Lessor to Supply Heat During “Winter Months”—Ambiguity—Parol Evidence—“Cold Season.”—In a lease of an office -building, where the lessor covenanted to supply heat during the “winter months,” such phrase is ambiguous, and parol evidence is admissible to show that it was not the intention of the parties to refer to what technically is called the “winter months,” but that it was their intention that the tenants should be supplied with heat during the “cold season,” so as to render thg tenants comfortable, and retain them in their offices, and to show the standard degree of heat required in an office building to supply the tenants with heat and make them comfortable during the “cold season.” In 'the common language of the people, the “winter months” are the “cold months.”</p> <p>Id.—Interpretation of Ambiguous Contract—Beasonableness and Justice.—An ambiguous contract is to be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it, and in the light of the acts of the parties done under it, and of the circumstances surrounding them and known to both of the parties when it was made, and so as to render its construction reasonable, fair, and just.</p> <p>Id.—Error in Striking Out Evidence of Standard Temperature.— "Where a witness had testified that the standard temperature of heat required in office buildings during the cold season was about seventy degrees, it was error to strike it out. Such evidence was properly interpretative of the degree of temperature required in the office building in question.</p>

<p>Trench Constructed by Gas Company—Bracing Committed to Vice-principals-—Want op Proper Bracing—Negligence—Damage to Plaintiff.—A gas company engaged in constructing a trench, the bracing of which to prevent injury was committed to the superintendent and foreman as vice-principals, to whom materials were committed for that purpose, is liable in damages to the plaintiff, who while engaged in the work of throwing dirt from a trench was injured by the breaking down of the wall of the trench, thus causing fractures of the pelvis bone and great physical and mental suffering and incapacity to labor, owing to want of proper bracing of such wall by the vice-principals, and also owing to the direct known negligence of the defendant, without plaintiff’s knowledge, in placing him in a position of peril from a parallel covered ditch, which weakened the wall of the tr.ench, and contributed to the injury and damage suffered by the plaintiff.</p> <p>Id—Duty of Master to Servant—Delegation of Duty to Fellow-servant—Representation of Master.—Where the master owes a duty to his servant, he cannot escape responsibility for its proper performance or liability for an injury to one servant by a failure to perform such duty by delegating its performance to another servant. The fellow-servant to whom the performance of such duty is assigned -becomes, with respect to that particular duty, the special representative of the employer, sometimes called a vice-principal. In such case the negligence of the fellow-servant is the negligence of the principal, for which the latter must answer. •</p> <p>Id.—Rules as to Use of Materials by Servants Inapplicable—Materials Used by Master’s Representatives—Work of Bracing not by Fellow-servants.—The rules applying to cases in which the materials are committed to be used by the servants themselves, rendering the master irresponsible for defects in their use or preparation for use, are inapplicable, where the materials for use were committed only to the master’s representatives, to be used by them for the purpose intended, in which case the master is responsible. It cannot be said that either the superintendent of the work or the foreman or carpenter employed in the preparation and use of materials for the bracing of the trench, were fellow-servants with the plaintiff, whose employment was distinct from theirs.</p> <p>Id.—Rule as to Changes in Place of Work—Question of Danger.— The rule that where there are frequent changes in the environment of a servant, the master is not bound to protéct the servant from dangers resulting, is inapplicable, so far as the question of resulting danger is concerned, as no danger appears to have resulted from any changes in the work, and the men were furnished with no means of protecting themselves .from any danger, and there was a hidden danger for which defendant alone was responsible, which contributed to the caving in of the wall.</p> <p>Id.—Duty of Defendant to Protect Plaintiff .by Bracing Walls— Question for Jury.—Where it reasonably appears that if defendant had continued to protect its workmen from injury as it had previously done, by bracing the walls of the trench, no injury would have resulted'to the plaintiff, the question whether it was its duty at the time of the injury to brace the walls for the protection of the plaintiff, was a question of fact, for the jury to determine. The questions whether the depth and character of the soil, and the hidden causes known only to defendant, were such facts as to 'make it defendant’s duty to brace the trench, were questions peculiarly within the province of the jury.</p> <p>Id.—Instructions as to Damages—Absence of Error—Construction as to “Physical and Mental Pain Suffered or to be Necessarily Suffered.”—It is held that no error appears in the instructions on the subject of damages. An instruction as to “mental and physical pain suffered or to be necessarily suffered,” is to be construed as to the mental and physical pain suffered as referring to past time, and the words “to be necessarily suffered,” are to be construed as implying such mental and physical pain as are reasonably certain to be suffered in the future.</p>

<p>Parent and Child—Custody of Children’s Home Society and Its Appointees—Improper Transfer by Father Without Mother’s Consent—Mother’s Adultery not Adjudicated.—A father, without the consent of the mother, has no power to transfer the custody of a child to a Children’s Home Society, nor authorize its adoption thereby, with power to find a home for the child as its appointees, where there was no adjudication of the mother’s adultery barring her right, nor would even a subsequent adjudication of her previous adultery destroy her right. In such case, the mother has the right to be heard, and to resist any attempt to relinquish its custody to such society or to its appointees.</p> <p>Id.—Bights op Parents as Natural Guardians.—Parents are the natural guardians of their children, and cannot be deprived of their right to their care, custody, society, and services, except by a proceeding in which it is shown that they are unfit or unwilling or unable to perform their parental duties.</p> <p>Habeas Corpus by Parents Against Appointees op Home Finding Society—Jurisdiction op Court—Question Involved—Custody op Child.—Upon a petition for a writ of habeas corpus signed by both parents against the appointees of the Children’s Home Society, as respondents, the court has no jurisdiction to hear evidence 'as to the best interests of the child, which might be considered in the superior court having jurisdiction in matters of adoption. Upon the application for such writ the only question involved is as to the right of the present custody of the child, which is in the parents petitioning for the writ, and it must be granted, since the custody of the Children’s Home Society was by sufferance of the father alone and conferred no right thereupon, and since no rights were acquired by or for respondents, under section 224 of the Civil Code.</p>

<p>APPLICATION for a Writ of Mandate to the City Clerk of the City of Oxnard.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action fob Personal Injuries—Explosion-of Scrubber in Gas Factory— Negligence — Absence of Contributory Negligence.— Where the plaintiff was employed as an expert pipefitter to do two jobs, one of which was, to fasten the bushing of a scrubber more securely, and it was found that the only .means of making it safe was by a lock-nut, which must be secured elsewhere, and the defendant’s agent promised that he would secure the same, and directed that the scrubber should be kept open, under an assurance that there was no danger, as the works were shut down; but while plaintiff was otherwise engaged a gas generator came into operation, the sparks from which fell into the open scrubber, causing an explosion, which hurled a heavy gas plate onto plaintiff’s head, crushing his skull, the defendant was negligent in not ordering the scrubber closed, and in not warning plaintiff of any increased risk of danger; but it is held that plaintiff is not chargeable with contributory negligence.</p> <p>Id.—Inconsistencies in Evidence—Province op Jury—Support of Verdict.—Any inconsistencies in the plaintiff’s testimony, or contradictions of Ms statements by other witnesses cannot be considered upon appeal in argument against the verdict of the jury. It is the province of the jury to determine the facts, and its verdict cannot be disturbed if there is any evidence to support it; and it is Held that there is sufficient evidence in the record to sustain the verdict of the jury.</p> <p>Id.—Evidence—Testimony of Expert—Reasons Given—Safe Manner of’Equipping Gas Scrubber.—It was not error to overrule an objection to the opinion of an expert witness as to the safe manner of equipping a gas scrubber, where he fully states the reasons for his opinion as an experienced witness on that subject.</p>

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

<p>Public Officers—Premium on Bonds Furnished by Surety Com- ' pañíes—Constitutionality of Statute.—The act approved March 25, 1903, providing for the payment by the state or counties, or cities and counties, of the premium or charges on official bonds when given by surety companies, is held constitutional and valid, upon the authority of County of San Luis Obispo v. Murphy, 162 Cal. 588.</p>

<p>Criminal Law—Forgery—Fictitious Check—Code Amendment—In- • struction;—Under section 470 of the Penal Code, as amended in 1905, a defendant may be charged with the forgery of a check, notwithstanding the names of the maker and payee of the check were, both fictitious persons, and the court properly instructed the jury to that effect.</p> <p>Id.—Code Definition of Forgery—Instruction—Applicability.—An instruction as to the code definition of the forgery,- under which the information was found, by reading section 470 of the Penal Code to the jury, is not erroneous, although some portions of the definition, as read, are inapplicable to the case made by the information, or the proofs.</p> <p>Id.—Sufficiency of Evidence to Sustain Verdict — Absence of Prejudicial Error—Exemplars Indicating Forgery.—Where exemplars introduced, in connection with other evidence, sufficiently showed a case of forgery by the -defendant of the check in question, it is held that the evidence as a whole is sufficient to sustain the verdict of guilty o’f the offense charged, and that no prejudicial error appears in the record.</p> <p>Id.—Sentence — Continuance of Time — Motion for New Trial— Sanction of Code—Jurisdiction not Lost.—The court did not lose jurisdiction to pronounce sentence, because it was not pronounced within five days after the verdict, where, at defendant’s request, it was delayed for the purpose of hearing a motion for a new trial, which is authorized by section 1191 of the Penal Code.</p>

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

<p>Criminal Law—Pandering—-Placing Female in House op Prostitution—Sufficiency op Information.—An information charging the defendant with the crime of pandering, in the language of the statute defining the offense, which declares every person guilty of the crime, "who shall procure for a female person a place as inmate '. . . of any place in which prostitution is encouraged or allowed in this state,” contemplates the commission, either separately, or all together, of the series of acts constituting the offense, and states a public offense.</p> <p>Id.—Facts not Required to be Stated.—The information need not include, in addition to the facts constituting the offense, all of the acts and conduct, which the statute enumerates and denounces in connection with its definition of the offense, and is not required to state them all conjunctively.</p> <p>Id.—Construction op Disjunctive Statute.—The statute in question is in the disjunctive form, and, in general where the statute is in the disjunctive, the effect of the language pertaining exclusively to each offense described, is not affected or modified by the words used solely in describing the other offenses, but the description of each is to be considered as if it stood alone and were read in conjunction with the general words applying to all.</p> <p>Id.—Discretion op Court to Regulate Conduct op Trial—Protection op Witness—Rebuke op Counsel.—The court has discretion to regulate the conduct o-f the trial and to protect a witness under cross-examination from apparent menace and threatening, and to rebuke counsel for yelling at the witness.</p> <p>Id.—Rebuke not Renewable upon Appeal.—The rebuke of counsel will not be reviewed or considered) prejudicial upon appeal, where no objection was made at the time to the remarks of the court when they were made, upon that ground, and no request was made that the jury be admonished to disregard the same.</p> <p>Id.—Accomplice—Question for Judge.—Whether or not a person in any given case was an accomplice is usually a question of fact arising from the evidence, and ordinarily must be determined by the jury.</p> <p>Id.—Law Concerning Accomplices — Corroboration — Error in Refusing Requested Instruction not Prejudicial—Justice not Miscarried.—While it was error to refuse a requested instruction as to the law requiring the necessary corroboration of an accomplice, before a conviction may be had, yet such error is not prejudicial, and will not justify a reversal of the verdict, where there was no miscarriage of justice, within the meaning of section 4y2 of article VI of the constitution, in view of the fact that the evidence, apart from that of thq alleged accomplice, fully supports and justifies the verdict.</p>

<p>Deed by Husband op Am Property to Wipe—Action to Set Aside— Undue Influence—Mental Incompetency—Evidence—Support op Eludings.—In an action to set aside a deed made by a husband of all his property to his wife, on the alleged grounds of undue influence and mental ineompetency, the evidence is held, to show no undue influence, but showed, without conflict, that the husband was entirely competent to transact business, and understood thoroughly the nature and contents of the deed, the execution of which to Ms wife was urged by himself, and entirely sufficient to1 sustain the court’s findings as to the mental competency of the grantor, and that it was Ms express purpose by the executed, acknowledged, and delivered deed, to vest all of his property in his wife.</p>

<p>Publication of Summons—Affidavit not Filed—Production in Court —Refusal to Hear Cause—Mandamus.—Where the record upon an application for a writ of mandamus to compel the hearing of a cause, in which publication of the summons was ordered, shows that after the lapse of the required time, the default of the defendant was entered, but the court, declined to hear the cause, for the reason that no affidavit for publication was on the files of the court, notwithstanding the plaintiff produced the original affidavit in court, and ordered the cause to be stricken from the calendar and that a new publication should bg made, the writ of mandamus will be granted to compel the court to reinstate the cause, and proceed as expeditiously as is possible with the hearing thereof.</p> <p>Id.—Proper Procedure at Hearing—Showing Affidavit—Question of Jurisdiction—Power of Court.—It seems that the affidavit for publication of summons should be on file or before the court when the case is called for trial, that the court may determine the question of jurisdiction arising from the service of process. A previous order directing the publication of summons could only be made upon a sufficient affidavit, and if the trial court finds necessary facts omitted therein, it has the power to vacate the order for such publication on the ground that jurisdiction of the person has not been properly and regularly required. But if the order for such publication is not void, the court has no power to set it aside except on motion made within a reasonable time, or by action when all necessary parties have an opportunity to be heard.</p> <p>Id.-—Affidavit Admittedly Sufficient—Jurisdiction Acquired not to be Divested—Disrespectful Conduct of Counsel.—Where the affidavit presented before the court is admittedly sufficient and the court has acquired complete jurisdiction of the person and of the subject matter, it could not divest itself of such jurisdiction, even though the conduct of the counsel in presenting the cause was disrespectful. The statute provides a manner thorough which courts may punish for violation of section 1209 of the Code of Civil Procedure.</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. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Indictment Charging One Optense—Evidence Showing Different Ottenses—Necessity ot Election.—The rule, that where, in a trial under an indietment ehargirig but one offense, evidence is introduced sufficient to prove two or more separate and distinct offenses, either one of which would support the charge in the indietment, an election is required, if requested, has no application where a series of acts form part of one and the same transaction, and as a whole constitute but one and the same offense.</p> <p>Id.—Attempt to Produce Miscarriage—Different Criminal Acts Done in Pursuance of One Agreement.—It is not essential or important to the completion of the offense of attempting to produce a miscarriage of a pregnant woman, as defined by section 274 of the Penal Code, that a miscarriage be actually produced; and where, under one agreement to procure a miscarriage, a defendant does a series of criminal acts on different days in the effort to produce such a miscarriage, all the acts may be and justly should be treated as done in the commission of one and the same transaction.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Santa Cruz County and from an order refusing a new trial. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal—Obdeb Taxing Go'sts After Entry of Judgment.—An order taxing costs made after entry of judgment is a special order from which an appeal will lie.</p> <p>Id.—Mileage Fees—Witnesses Residing in San Francisco Entitled to.—Section 4300g of the Political Code fixes the right of a witness to mileage fees, and the superior court of the city and county of San Francisco has no power to establish as a rule of practice the uniform disallowance of such fees to witnesses residing in such city and county.</p> <p>Id.—Slander—Costs in Actions for Regulated by General Laws.— The right of a successful defendant in an action for slander to recover costs is governed by the general law on that subject, as provided in the Code of Civil Procedure, and in the present case it was not an abuse of discretion to strike out an item for costs expended in taking the depositions of witnesses who appeared and testified at the trial.</p> <p>Id.—Counsel Fees Recoverable as Costs—Constitutional Law.—The provision of the act concerning actions for libel and slander (Stats. 1871, p. 533), which allows either party prevailing in such actions to recover as costs the sum of one hundred dollars to cover counsel fees, is not in conflict either with the fourteenth amendment of the federal constitution, guaranteeing to every person the “equal protection of the law,” or with the provisions of the state constitution, requiring that general laws shall be uniform, and prohibiting special laws.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Quieting Title bt Executor—Genuineness of Deed of Gift—Finding—Evidence.—In an action by an executor to quiet title to land, which involved the question of the genuineness of a deed of gift of ■the land to the defendant by the plaintiff’s testator, the evidence, although conflicting, is held sufficient to support the finding that the deed was genuine.</p> <p>Ib.—Acknowledged Deed Admissible in Evidence Without Further Proof.—Such deed, properly acknowledged, was admissible in evidence without further proof, under section 1951 of the Code of Civil Procedure, and was competent evidence of a grant to the grantee from -the grantor.</p> <p>Id.—Affidavit Denting Genuineness of Deed to Defendant—Effect of Affidavit.—The filing by .the plaintiff in such action, in pursuance of section 448 of the Code of Civil Procedure, of an affidavit denying the genuineness and due execution of the deed to the defendant, did not deprive the defendant of the right to offer such deed in evidence without further proof. The only effect of the filing of such affidavit, which constituted a part of the pleadings, •was to enable the plaintiff to controvert the genuineness of the deed.</p> <p>Id.—Evidence—Conversations Between Grantee and Grantor— Grantee a Competent Witness.—Such action, not being against the executor, nor upon any claim or demand against the estate of the grantor, the grantee was a competent witness to testify to conversations he had with the grantor in his lifetime.</p> <p>Id.—Delivert—Grantor Continuing in Possession—Adverse Possession.—A deed is presumed to have been delivered at its date. By its execution and delivery, the entire legal interest in the land vests in the grantee, and if the grantor continues in possession afterward his possession will be either as tenant or trustee of the grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession and render it adverse to the grantee.</p>

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

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

<p>Newspaper—“Daily Recorder” oe Sacramento—General Circulation. The Daily Recorder is a newspaper which has been published daily, except Mondays and legal holidays, in the city of Sacramento, for a period exceeding one year prior to the filing of the petition herein; it publishes local and telegraphic news and intelligence of a general character, its telegraphic news being obtained from other Sacramento evening papers; the greater part of the local news published by it consists of the daily report of documents recorded in the offices of the county recorder, and the proceedings of the superior court, although it also publishes other matters of local interest. It has a subscription list of paying subscribers, exceeding the number of two hundred, consisting of persons, firms, and corporations engaged in very many different kinds of occupation; the largest classes of such subscribers are lawyers and real estate firms. Held, that such newspaper was one of general circulation, within the meaning of section 4460 of the Political Code.</p> <p>Id.—Publications of Local and Telegraphic News not Essential.— That section does not require, in order for a newspaper to be established as one of general circulation, that it shall publish both local and telegraphic news. The requirement is “local or telegraphic” news and intelligence of a general character.</p> <p>Id.—Size of Paper—Diversity of Subscribers—Specialty of Particular Class of Business.—Whether a newspaper is one of general circulation is a matter of substance and not of size, and depends largely upon the diversity of its subscribers rather than upon mere numbers. The mere fact that it makes a specialty of some particular class of business and conveys intelligence of particular interest to those engaged in such business does not deprive it of thai; character.</p>

<p>APPEAL from a judgment of the Superior Court of Plumas County. J. O. Moncur, 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. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Holographic Will—Date—Omission of Month.—The omission of the month in the date of an holographic will is fatal to the validity of the instrument.</p> <p>Id.—Two Letters as Constituting Will—Dates.—Two 'letters cannot be taken together as constituting a holographic will, where the first one, though testamentary in character, is not dated, while the second one, though dated, is not testamentary in character and does not so refer to the first as to incorporate it.</p> <p>lb.—Incorporation of Instrument in Will by Deference.—A paper not testamentary in character may be construed with one having that character, when the latter, by proper reference to the former, incorporates it within itself. But before an instrument may be incorporated in another by reference, the reference must be certain, clear, and unambiguous.</p> <p>Bv-Construction of Will—Bule in Favor of Testacy.—The rule that favors testacy as against intestacy operates only where the ex-istenee of the testamentary intent is ascertained and the subject matter of the doubt is one of construction. Where there is a doubt as to the existence of the animus testandi, the rule is not applicable.</p>

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

<p>Account Stated—Failure to Object Within Reasonable Time.—An account rendered and retained beyond a reasonable time without objection is deemed accepted, conceded to be correct, and thereby constituted an account stated.</p> <p>Id.—Acquiescence in Monthly Statements During Period of Tears—Charges for Interest—Failure to Object to Last Statement.—Where it had been the uniform custom of a seller, extending throughout a series of years, to furnish to a purchasing customer a monthly statement of its account showing: 1. The balance brought forward from the previous month; 2. Goods purchased during the current month; .3. A notice that “accounts not paid promptly when due will be subject to interest charge and sight draft without notice”; 4. A statement of the interest charged to date upon accounts “past due”; and 5. The balance due, and the customer had never made any objections to any of such statements, either generally, or as to any item of merchandise or interest charged therein, his retention of the last statement so furnished Mm, without objection, for a period of twenty-five days, constituted it an account stated.</p> <p>Ed.—Finding—Conflict of Evidence.—A finding that' the account sued upon was stated and accepted cannot be interfered with on appeal, where the evidence touching that matter is conflicting.</p> <p>Id.—Charges for Interest at More Than Legal Rate—Compound Interest.—Where the statements of account regularly rendered to the customer from month to month throughout such series of years contained a notice that interest would be charged upon unpaid monthly balances, and in each instance interest was charged upon and added to the unpaid balance at the rate of ten per cent per annum, which interest in turn was added to the balance stated for the succeeding month, the customer’s assent to such interest charges was properly inferred, and a finding that he agreed to pay interest upon unpaid monthly balances at the rate indicated is supported by the evidence.</p> <p>Id.—Statutory Restrictions on Interest Charges Inapplicable to Account Stated.—Section 1917 of the Civil Code providing that “unless there is an express contract in writing, fixing a different rate, interest is payable on all moneys at the rate of seven per centum per annum after they become due, ... or due on any settlement of account from the day on which the balance is ascertained,” has no application to the rate of interest which may be included in and agreed to upon an account stated, and section 1919 of that code, requiring a contract for the compounding of interest to be in writing, does not prevent the inclusion in such an account of compound interest.</p>

<p>Master and Servant—Railroads—Assumption op Risk—Instructions.—In an action against a railway company by an employee to recover for personal injuries, instructions on the law of assumption of risks are properly refused where the pleadings and evidence raise no issue of assumed risk.</p> <p>Id.—Negligence op Master—Burden op Proof to Show.—The burden is on an employee, suing his employer for personal injuries, affirmatively to prove negligence on the part of the employer.</p> <p>Id.—Presumption op Negligence prom Happening op Accident.—A presumption of negligence on the part of an employer does not arise from the fact of injury to an employee in the course of his employment.</p> <p>Id.—Roof Striking Employee on Railway Car.—In this action by an employee against a railway company for injuries sustained, while descending from a passing ear, by being struck by a roof alleged to have been negligently maintained too near the track, the evidence is sufficient to warrant the jury in finding against the defendant’s negligence.</p> <p>Id.—Contributory Negligence—Erroneous Instructions.—If no negligence of the defendant is shown in an action by an employee for personal injuries, erroneous instructions in reference to contributory negligence are not prejudicial to the plaintiff.</p> <p>Id.—Assumption op Risk—Inaccurate Instructions.—An inaccurate instruction on the law of assumption of risks is not prejudicial to an employee, in his action against his employer for personal injuries, where the pleadings and evidence raise no issue of assumed risk.</p>

<p>Corporations—Sale op Stock—Contract to Repurchase—Option.— A contract executed by the seller of corporate stock, whereby he ■agrees to purchase the stock at an advance on or before twelve months from date, is not a bilateral agreement for the resale and purchase of the stock, but gives the buyer an option which he must exercise within the time limited.</p>

<p>Divorce—Extreme Cruelty—Laches—Unreasonable Delay in Bringing Action—Condemnation—Acquiescence.—A divorce on the ground of extreme cruelty is properly denied on account of laches, under sections 124 and 125 of the Civil Code, where there has been an unexplained delay of six years in bringing the action after the happening of the events constituting the extreme cruelty. Such unexplained delay creates a presumption either of condonation or acquiescence.</p> <p>Id.—Reasonableness of Delay a Question for Trial Court.—The question whether such lapse of time is reasonable or not, within the ° meaning of section. 124 of the Civil Code, is for the trial court to determine.</p> <p>Id.—Examination of Witnesses by Judge—Failure of Counsel to Attempt to Offer Evidence Excusing Delay.—Where the trial judge practically tried the case, including the examination of the witnesses, without the aid or assistance of counsel, the plaintiff cannot afterward complain that he was afforded no opportunity to show the facts tending to disclose a reasonable cause for the delay, if his counsel made no effort at the trial to introduce evidence in that connection.</p>

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

<p>Building Contracts—Abandonment by Contractor—Completion by Owner.—An owner who has complied with the terms of a building contract cannot be compelled to pay anything in excess of the contract price. When he completes the building, in accordance- with the original plans, because of an abandonment by the contractor, he must be allowed credit for what he has necessarily and reasonably expended in so doing.</p> <p>Id.—Mechanics’ Liens—Liability op Owner.—Where the owner of a building completes it after the contractor abandons the work, and in so doing reasonably and necessarily expends a part of the balance of the contract price in Ms hands, he is liable to lien claimants only for the remainder of such balance.</p> <p>Id.—Action on Contractor’s Bond—Costs and Counsel Fees.—The owner cannot recover on the bond of the contractor for payments voluntarily made in excess of what he thus is legally liable for, nor can he recover, on the bond, attorney’s fees and costs incurred by him in defending against the lien claimants.</p>

<p>Criminal Law—Homicide—Degree of Offense—Harmless Error.— One charged with murder and found guilty of murder in the second degree cannot complain because the verdict is more favorable to him than the evidence warrants.</p> <p>Id.—Polling Jury—Compliance with Code.—The polling of a jury, whereby the clerk again reads the verdict and asks each member of the jury, “Is this your verdict?” to which each replies in the affirmative, is a sufficient compliance with section 1163 of the Penal Code.</p> <p>Id. — Interpreter for Witness — Beview of Appointment. — The appointment of an interpreter for a witness is for the judicial determination of the court, and its ruling denying a request for an interpreter will not be disturbed on appeal if the record fails to show that the witness was unable to speak or understand English.</p> <p>Id.—Conduct of District Attorney—Whether Prejudicial.—A statement by the district attorney to the jury in a homicide case that he believes upon his oath as an attorney that the defendant has not told “what happened there that night,” is not prejudicial, especially if the court instructs the jury to consider the statement as argument and not as a statement of fact.</p> <p>Id.—-Witness—Impeachment by Showing Statements at Preliminary Hearing.—A witness cannot be impeached by showing that he testified differently at the preliminary hearing, unless he is shown a transcript of the testimony there taken, although he testified through an interpreter.</p> <p>Id.—Evidence as to Whether Deceased was Anglo-Saxon.—Evidence in a homicide trial as to whether the deceased was an Anglo-Saxon, though inadmisible, was not prejudicial.</p> <p>Id.-—-Good Character of Defendant—Necessity of Bequest for Instructions.—The accused in a homicide case is not in a position to complain of the failure of the court to instruct upon his good character, if no request for such instruction was made.</p>

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

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

<p>Banks and Banking—Contract of Cashier.—A memorandum in the form of an “I. O. U./’ written on the back of a blank cheek and signed “B. MeD., Cashier,” does not in itself appear to be the contract of the bank.</p> <p>Id. — Contracts ■— Parties and Signatures Descriptive Words.— Where, in the body of an instrument, no words appear to define the agreement as made on behalf of a party other than he whose signature is attached, it will not be deemed to be the contract of another, though there appear after the signature such qualifying or descriptive words as “President,” “Secretary,” or “Cashier.”</p> <p>Id.—Parol Evidence to Identify Party.—In such cases parol evidence is admissible to identify the party against whom the obligation is legally chargeable.</p> <p>Id.—Nonsuit-—Beview of Judgment—Construction of Testimony.— In reviewing a judgment entered on motion for a nonsuit, any reasonable construction may be given plaintiff’s testimony which will sustain the cause of action alleged.</p>

<p>Corporations—Assignment of Claim—Authority to Make—Action by Assignee—Nonsuit.—Where an employee of a corporation sues on a claim assigned by it to him for collection, and the assignment is admitted in evidence subject to being, but in fact not afterward stricken out, it is error to grant a nonsuit on the ground that no authority is shown for making the assignment, when from the plaintiff’s testimony it is reasonably inferable that the assignment was executed through the secretary of 'the corporation by direct authority of the president and the assistant manager.</p> <p>Id.—Consideration of Evidence on Motion for Nonsuit.—Such assignment, though improperly admitted over the defendant’s objection, constitutes evidence which it is not only the duty of the court to consider, but to assume as true in passing upon the motion for nonsuit.</p> <p>Id.—Credibility of Witnesses and Competency of Evidence.—The question of credibility of the witnesses, or weight or competency of the evidence, cannot arise on such motion for nonsuit.</p> <p>Id.-—Assignment by Corporation—Necessity of Seal or Resolution of Directors.—It is not necessary to the validity of an assignment by a corporation of a claim for collection that it should be authenticated by the corporate seal, nor is it absolutely necessary to its legality that its execution should have been authorized by a resolution of the board of directors previously adopted.</p> <p>Id.—President or Manager of Corporation—Authority in Ordinary Transactions.—The president, manager, or other officer having direct superintendence of the affairs of a corporation, may transact for it all matters coming within its ordinary course of business, including the assignment of a claim for collection.</p> <p>Id.—Assignment fob Collection—Action by Assignee—Concern of Defendant.-—In an action by the assignee of a claim for collection, ■the defendant is concerned only to know that the assignment is of such a character as to bind the assignor.</p> <p>Id.—Evidence of Purpose of Assignment and of Authority to Make. Where a corporation assigns a claim to one of its employees for collection and he thereafter brings suit thereon, the court should allow him to show the circumstances under which and the purpose for ¡which the assignment was made to Mm, and also to show that the assignment was made by authority of the president, or the manager or directors, or under such circumstances as to disclose that it was acquiesced in and ratified by those in authority over the affairs of the corporation.</p>

<p>Carriers—Failure of Passenger to Pat Before Entering Train— Additional Fare—Repeal of Statute.—The act of April 1, 1878 (Stats. 1877-78, p. 969), authorizing a railway company, where a passenger has not paid his fare before entering the train, to collect “the sum of ten cents in all cases where such fare is less than one dollar, and at the rate of ten per cent on all 'fares in excess of one dollar,” was repealed by section 43 of the act of March 19, 1909 (Stats. 1909, p. 499), providing for the organization of the state railroad commission.</p> <p>Id.—Demand of Additional Fare—Ejection of Passenger—Instructions.—In an action against a railway company by a passenger for being ejected from a train for refusing to pay ten cents in addition to the regular fare of thirty-five cents for failure to purchase a ticket before taking the train, an instruction that a passenger “who has not paid his fare before entering the train, if he has been afforded an opportunity to do so, must, upon demand, pay ten per eent in addition to the regular fare,” is not prejudicial to the defendant, when there is no controversy as to the amount of excess fare charged but as to the right to demand any excess at all.</p> <p>Id.—Ejectment op Passenger prom Train—Measure op Damages.—A judgment for one thousand dollars in favor of a passenger wrongfully ejected from a train between stations is not excessive, where he was in an enfeebled condition from a recent surgical operation, and as a result of walking back to a station through the hot sun he was rendered ill for several weeks and incapacitated from performing his ordinary work for a period of seven months.</p> <p>Id.—Duty op Ejected Passenger to Minimize Damage—Instructions. In such action an instruction to the jury that “if you shall find that plaintiff had been informed of the probable consequences of over-excitement or over-exertion, or beat, or dust, or had been warned against any of these, but nevertheless so conducted himself after his leaving the train as to expose himself to these or any of them and that any consequent damage was the direct result of such exposure, your verdict must he for the defendant,” is properly refused as ignoring the question, What would a reasonably prudent man do under the circumstances?</p> <p>Id.—Duty op Ejected Passenger to Wait at Nearest Station.—In such an action it is proper to refuse an instruction that the ejected passenger must wait at the station nearest the place of ejectment if he again intends to hoard another train; if he walks to a station some seventeen hundred feet more distant than the one nearest to the point where he was ejected, it is for the jury to say whether, in so doing, he acted as a reasonably cautious man.</p> <p>Id.—Degree of Care Required of Passenger Expelled from Train.— The very highest degree of care and caution is not required of a passenger ejected from a train, in deciding whether he will walk through the heat and dust to a station, and whether, if he decides to walk to a station, he will go to the nearest one; it is sufficient if he uses such prudent care as is reasonable under the circumstances.</p> <p>Id.—Right op Passenger to Insist Upon Rights—Extra Fare Demanded.—The law recognizes the right of a passenger, from whom the carrier demands an extra ten cents for transportation, obstinately to insist upon his legal rights, and does not require him to yield, although he might thereby save himself and others great discomfort and annoyance.</p>

<p>Corporations—Election op Directors—Teller Returning Ballots to Voters por Correction.—Where the members of one faction, at a stockholders’ meeting for the election of directors, deliver their ballots to the teller without marking them cumulative, it is proper for the teller, before the ballots are canvassed or an election declared, to return the ballots to the stockholders who cast them in order that ■they may be corrected to show a cumulation of votes and thus express the true intention of the voters.</p> <p>Id.—Corporate Elections—Manner op Conducting—Technicalities. Corporation elections are business affairs, not controlled by the laws affecting general elections, and should he conducted in a business way and in a manner affording all stockholders the fullest liberty in expressing their wishes, disregarding technical matters which enter into general elections controlled and restricted by special statutes.</p>

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

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

<p>Insane Persons—Proceedings for Commitment—Sufficiency of Complaint.—An affidavit or complaint alleging that a certain person is insane and so disordered in mind as to endanger himself and others; that on a certain day he “acted in a strange and incoherent manner, and was laboring under the delusion that persons were whispering and talking to him, and that he was afflicted with what he called a ‘whisperee’ and by buzzes, and was laboring under the delusion that there were parties who desired to drive him from Southern California; that by reason of said insanity said person is dangerous to be at large,” contains a sufficient statement of facts to give the court jurisdiction to proceed and examine the charge made.</p> <p>Id.—Affidavit or Complaint—Statement of Conclusion.—It is not a statement of a conclusion merely for the complainant to say, in such affidavit or complaint, that the petitioner was “laboring under the delusion that persons were whispering and talking to him. . . . and was laboring under the delusion that there were parties who desired to drive him from Southern California.”</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 San Joaquin County. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court and in the opinion in People v. Carroll, 20 Cal. App. 41.</p>

<p>Municipal Corporations—Construction op Sidewalks—Plans and Specipications.—A city board of trustees may adopt as "special plans and specifications for the construction of a cement sidewalk, previous general plans and specifications which were invalid because adopted by resolution rather than by ordinance.</p> <p>Id.—Supervision op Work—Provisions in Plans Respecting.—Specifications for a cement sidewalk are not invalid because of a provision therein requiring the work to be done under the supervision of an inspector appointed by the superintendent of streets, at the time unauthorized by the Vrooman Act, where the work is done under the direction of the superintendent as required by section 6 of that act.</p> <p>Id.—Assumption op Establishment op Sidewalk Grades.—Specifications for the construction of a cement sidewalk are not invalid because they assume that the sidewalk grades have been established.</p> <p>Id.—Foreclosure op Lien for Improvements—Appeal.—On an appeal, where the action was to enforce a lien following an assessment for •the construction of a cement sidewalk, from the judgment on the judgment-roll alone, every fact essential to the support of the court’s findings and the judgment must be presumed to have been proved.</p> <p>Id.—Pleading—Defects in Complaint Cured by Answer.—A complaint, in an action to enforce a lien following an assessment for the construction of a sidewalk, which does not allege that the sidewalk grades have been established, is cured by the answer, of which the specifications, from which it may be inferred the grades have been established, are made a part.</p> <p>Id.—Specifications for Sidewalk—Delegation op Authority to Contractor or Superintendent op Streets.—Specifications for a cement sidewalk that all concrete for the foundation shall be composed of one part Portland cement, two parts coarse, clean sand, and four parts clean hard sandstone, granite, basalt, porphyry, or other close-grained rock, free from loam, etc., and that the finishing material shall contain sufficient lampblack or other coloring material to give the work a dark slate or brick red color, are not invalid as delegating to the superintendent of streets or to the contractor authority to determine the materials to be used.</p> <p>Id.—Liens por Public Improvements—Technicalities Discouraged.— Courts frown upon defenses, interposed to the enforcement of liens for public improvements, which are based upon technicalities having no substance behind them.</p>

<p>APPEAL from a judgment of the Superior Court of Plumas County. J. 0. Moncur, 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 motion for a change of place of trial. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Pleading—Defenses Alleged in Answer—Inconsistences.—Where specific denials in the first defense raised by an answer constitute a perfect answer to the cause of action, allegations in a second and separate affirmative defense and by way of counterclaim, though inconsistent with the denials contained in the first defense, cannot be regarded as destroying the effect thereof and thus relieve plaintiff of the burden of proving his case.</p> <p>Id.—Denial in One Defense not Waiver of Affirmative Matter in Another.—The effect of a denial in one defense is not waived by the setting up of affirmative matter in another defense.</p> <p>Id.—Affirmative Matter in Answer Deemed Denied.—Affirmative matter pleaded by way of defense is deemed to be denied, and hence, in the absence of proof, must be deemed untrue.</p>

<p>Intoxicating Liquors—License to Sell—Discretion of City Council to Issue.—Where, under the provisions of section 11 of article XI of the constitution authorizing cities to make police regulations, a city enacts ordinances to the effect that any person desiring to retail intoxicating liquors must procure a license, and that no license shall issue until a petition is presented to the city council setting forth the names of the applicants, the character and location of the business, etc.; and that if the board finds that the applicants are not persons of good moral character, and that the proposed location is not a suitable one, the petition shall be denied, the question whether or not a liquor license shall be issued is entirely under the control of the council. If in its opinion the public welfare demands that no license for the sale of liquor be granted, for a good and sufficient reason, at the particular place, or to the particular persons applying therefor, it is not within the province of the courts to determine otherwise.</p> <p>Id.—Power to Regulate Traffic in Liquors.—The sale of spirituous liquors is a traffic and business to be regulated under the police power.</p> <p>Id.—Vested Right to Engage in Liquor Business.—There is no vested right in any one to engage in such traffic and business.</p> <p>Id.—Application for License—Name of Applicants.—An application. to a city council for a license to retail intoxicating liquors, signed “Guzzi Bros., by 0. Guzzi,” is insufficient under an ordinance requiring applications for liquor licenses to state the names of the applicants.</p> <p>Id.—Mandamus to Issue License—Tender op Fee.—Mandamus to compel a city council to grant a liquor license will not issue, when there is no allegation of tender or payment of the license fee which by ordinance is made a condition precedent to the issuance of a license.</p> <p>Id.—Title op Ordinance—When Expresses Subject op Act.—An ordinance entitled: “Relating to regulating and licensing the business of selling and furnishing of spirituous, vinous and malt liquors in the city of San Luis Obispo”; and an ordinance entitled: “An ordinance to amend sections 12, 13, and 15 of ordinance No. 128, relating,” etc., express in' their titles the subject matter thereof as required by subdivision 4 of article 6 of the charter of San Luis Obispo.</p>

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

<p>Water-rights—Easement por Irrigation Ditoh—Action to Quiet Title—Complaint.—A complaint in an action to quiet title to an easement for a lateral irrigation ditch running over the lands of the defendant, and to restrain him from changing its location, is not subject to demurrer because not disclosing whether the plaintiffs rely upon a grant of a specific right of way, or upon a grant of a genera] right to run water across defendant’s land at a place to be located by him, if it alleges that there is appurtenant to the described lands of the plaintiffs a ditch constructed to convey water thereto, and describes the route of the ditch over the defendant’s land, and alleges that the ditch connects with the main canal of a named irrigation company from which the plaintiffs have the right to secure water, and alleges that plaintiffs enjoy a joint easement for such ditch by purchase over the land of the defendant.</p> <p>Id.—Curing op Defects in Complaint by Answer.—Any fault or uncertainty in the complaint, in the respect referred to, is cured by an answer which not only meets by denial every issue tendered by the complaint, hut admits the right of the plaintiffs to an easement, and merely sets up the objection that the location of the ditch is not over a way designated by the defendant, and that such location is more burdensome upon his estate than a different location which would equally subserve the purpose of the easement.</p> <p>Id.—Fart op Finding Unsupported by Evidence—Disregarding as Surplusage.—If in such action there is evidence of acts on the part of the defendant’s grantor sufficient to indicate his intention to designate the route of the ditch along the line where it was finally constructed, a part of a finding, unsupported by evidence, that he caused the line to be surveyed, may be treated as surplusage.</p> <p>Id.—Designation op Right op Way—Right op Parties to Make.— Where an unlocated right of way is granted or reserved, the owner of the servient estate may in the first instance designate a reasonable way, and if he fails to do so, the owner of the dominant estate may designate it.</p> <p>Id.—Evidence op Selection op Eight op Way by Owner op Servient Estate.—The evidence is sufficient to show that the former owner of the servient estate himself designated the route over which the ditch was constructed; but if the evidence were insufficient in this respect, it is sufficient to show a location of the ditch by use and acquiescence.</p> <p>Id.—Change of Location op Easement—Necessity op Consent op Parties.—Where a right of way for an irrigation ditch has been established, whether through selection by the owner of the servient estate or by use and acquiescence, it becomes the permanent way, and neither party can change the location without the consent of the other.</p> <p>Id.—Purchaser op Servient Estate Takes Subject to Easement.— The purchaser of land over which a right of way for an irrigation ditch has been reserved -takes title subject to the burdens of the easement.</p> <p>Id.—Proper Maintenance op Ditch—Evidence and Findings.—Findings in this ease that the route along which the ditch is maintained “is a good, sufficient and practical ditch, and subserves the purposes for which the same was constructed,” and that it imposes no greater burden upon the land of the defendant than is necessary, and that the uses and easements of the plaintiffs therein are exercised to the least possible injury to the land of the defendant, are supported by the evidence.</p> <p>Id.—Appeal—Findings Based on Conflicting Evidence.—Although the evidence on which such findings are -based is conflicting, the findings are binding upon the appellate court.</p> <p>Id.—Repairs and Improvements—Right to Make.—Either the owner of the dominant or of the servient estate may make repairs and improvements in the easement which do not change its character or affect its substance.</p> <p>Id.—Examination op Witness—Question Callng for Conclusion.— A question to a witness who was a salesman in the employment of the corporation at the time it constructed the irrigation ditch, whether it was the intention of the officers of the company to make the ditch permanent and not subject to change calls for a conclusion and is therefore objectionable.</p> <p>Id.—Former Owner as Witness—Indefinite Questions.—Indefinite questions to a witness who formerly owned the servient estate whether he ever had any trouble with the water from the ditch, the purpose of the question being to show that the ditch was located in an unsatisfactory place, are properly rejected.</p> <p>Id.—Right op Owner op Servient Estate to Destroy Ditch.—The owner of the servient estate cannot justify the destruction of the irrigation ditch, because there was a mistake in locating it or be cause it was located at a place which made the servitude more burdensome than was necessary.</p> <p>Id.—Exclusion of Evidence—Harmless Error.—Error in excluding evidence as to the location or extent of the ditch is not prejudicial, if the fact desired to be established is shown by other evidence.</p> <p>Id.—Change of Location of Ditch—Consent of Irrigation Company. The consent of the irrigation company, which is under contract to furnish the owners of the dominant estate with water, to change the route of the ditch over the servient estate is without legal effect to authorize the owner of the servient estate to make the change.</p> <p>Id ■—Change of Location of Ditch by Grantee of Servient Estate.— Where an irrigation ditch has been constructed across one tract of land to1 convey water to another tract, and its location and use have been acquiesced in by the parties for a number of years, a grantee of the servient estate will not be permitted, some two years after making his purchase, to change the location of the ditch and interfere with the easement without the consent of the owner of the dominant estate.</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. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Justice of Peace—Opening Default—Motion not Responsive to Notice.—A justice of the peace has no jurisdiction to set aside a default judgment where the motion therefor is not responsive either to the motion noticed or to the affidavit filed in support thereof.</p> <p>Id.—Excusable Neglect—.Motion After Ten Days.—A justice of the peace is without jurisdiction to set aside a default judgment on the ground of excusable neglect, upon a motion by the defendant made over ten days after the entry of the judgment and based on the ground that his time to answer had not expired when the judgment was entered.</p>

<p>Mortgage—Assumption by Grantee—Effect on Liability of Parties. A grantee of mortgaged real estate who agrees to pay the indebtedness becomes the principal debtor of the mortgagee, and the mortgagor becomes surety.</p> <p>Id.—Subsequent Purchase of Mortgage by Mortgagor—Foreclosure. Where the grantee of mortgaged real estate agrees to pay the indebtedness, the mortgagor may afterward take an assignment of •the mortgage to himself and1 foreclose it against his grantee.</p> <p>Id.—Mortgagor Taking Assignment of Mortgage in Hame of Attorney.—Where a grantee of real estate assumes the mortgage thereon, it is not a fraud on Mm for the mortgagor thereafter to take an assignment of the mortgage in the name of the attorney employed by the mortgagee to foreclose.</p>

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

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

<p>Justice of Peace—Certiorari—Modification of Judgment by Superior • Court.—Where on certiorari the superior court has approved an order of a justice’s court, it may subsequently, under sections 662 and 663 of the Code of Civil Procedure, vacate its judgment in so far as it taxes costs against the justice, who was one of the respondents in the certiorari proceedings.</p> <p>Id.—Opening Default—Computation of Time—Sunday.—Where the ten days after notice of the entry of a default judgment in a justice’s court expire on Sunday, the defendant has the following day in which to apply for relief from the judgment on the ground of mistake, surprise, or excusable neglect, under section 859 of the Code of Civil Procedure.</p> <p>Id.—Continuance of Hearing—Jurisdiction not Lost.—When a motion has been made to set aside a default within the time limited by section 859 of the Code of Civil Procedure, the court may, without losing jurisdiction, continue the hearing for argument or further evidence.</p> <p>Id.'—Notice by Mail of Entry of Default—Insufficiency of Affidavit.—An affidavit of the service by mail of notice of the entry of a default judgment in a justice’s court is insufficient, under section 1012 of the Code of Civil Procedure, if it fails to show that the person who made the service and the party upon whom it was made resided or had their offices at different places; and it cannot be considered on an application to set aside the default on the ground of mistake, surprise, or excusable neglect.</p> <p>Id.—Second Service of Process—Effect.—A second service of process does not waive the first service, nor can a second service of process effect a shortening of the time allowed a defendant under the law specified and applying to the first service.</p> <p>Id.—Certiorari—Failure to Answer Petition.—Recitations in a petition for certiorari do not become admissions by reason of the respondent’s failure to answer the petition. The return to the writ constitutes the answer as well as the evidence, and the case is heard thereon unless upon motion an additional and amended return is made.</p> <p>Id.—Setting Aside Default Without Imposing Costs—Error not Jurisdictional.—For a justice of the peace to set aside a default without imposing costs as a condition, while an error of law, is not jurisdictional and hence cannot be reviewed by certiorari.</p> <p>Id.—Certiorari—Return to Wrio>—Certification of Facts.—In a return to a writ of certiorari to review the action of a justice of the peace in vacating a default, he may certify evidence taken at the hearing to determine the controverted facts in relation to the service of summons.</p>

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

<p>Boundary—Mistake by Adjacent Owners—Estoppel to Claim True Line.—Where the owners of adjoining tracts of land were not privy to a private survey designating the dividing line, and there has been no dispute as to their boundary line, and no agreement in words as to its location-, and their conduct from which an agreement might be inferred has been due to a mutual mistake of fact, neither of them will be estopped from claiming in accordance with the true boundary " when it is ascertained.</p> <p>Id.—Consent to Line Defined Through Mistake—Estoppel.—Owners of adjacent tracts of land are not bound by consent to a boundary which has been defined under a mistaken apprehension that it is the true line, each claiming only the true line wherever it may. be found to be; and in such case neither party is precluded from claiming his own rights under the true line when it is discovered.</p>

<p>Municipal Corporation—Street Assessment—Appeal to CouncilEstoppel to Deny Notice.—In an action to recover a street assessment levied under the Vrooman Act, a property owner is not es-topped from urging as a defense that the city council failed to publish notice of the hearing of an appeal taken to the council by the defendant and other property owners, although defendant appeared and urged his appeal -before the council without objecting to the failure to publish the notice. The publication is imperative.</p> <p>Id.—Notice op Hearing op Appeal—Necessity and Manner op Giving. The city council, when it proceeds to give a hearing on an appeal against a street assessment under the Vrooman Act, cannot assume jurisdiction to make any order of determination therein until all property owners affected by the assessment, whether parties to the appeal or not, have been given notice of the hearing. There is but one way provided by the statute for the giving of this notice, and that is that it shall be published for five days.</p>

<p>Evidence—Books of Account—Indefinite Entries.—In an action to recover a balance due upon an open book account for lumber sold to the defendant by the plaintiff’s assignor, an account, consisting of two pages and containing debit charges, is not admissible in evidence, if there is nothing in the account to show what the charges were for and no witness is examined who has any personal knowledge of the transactions culminating in the various debit entries. Such entries are purely hearsay.</p> <p>Id.—Entries must Show What Articles were Basis of Charge.— The entries must be of such a character as to show to a reasonable certainty what articles or things are the basis of the charge.</p> <p>Id.—Entries must be Specific and Certain.—Charges in a book account, to be admissible in evidence, must be specific and certain. An entry of “Bal. 357.46” is a violation of this rule.</p> <p>Id.—Entries must be Contemporaneous With Transaction.—An entry in a book' account, to be admissible, must be contemporaneous with the transaction to which it relates. A debit entry to “Bal. 357.46” violates this rule.</p> <p>Id.—Indefinite Entries—Curing by Other Testimony.—If entries are defective in these respects, the testimony of a witness that the account was “a true and correct account of the transaction” does not help the matter, if he has no personal knowledge of the transactions, and the entries in the account are so meager as not to be a sufficient account of any transaction.</p> <p>Id.—Account Stated—What Constitutes Aim Effect Thereof as Evidence.—If a statement of an account is admitted to be true by the debtor, or is not disputed within a reasonable time, it becomes an account stated; and the facts establishing an account stated may be proved as an admission of the correctness of the open book account, and thus lay a foundation for the introduction of the account against the debtor.</p> <p>Id.—Proof of Assignment—Signatures—Abbreviations.—An assignment to the plaintiff from “Matthew Harris” is sufficiently proved by a written assignment, signed by “M. Harris” which signature is proved to be the signature of “Matt. A. Harris.” “Matt.” is an abbreviation for “Matthew.”</p> <p>Id.—Sale by Corporation—How may be Proved.—To prove a sale by a corporation, it should be shown that the sale was made upon behalf of the corporation by some one who has authority to so act for it.</p>

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

<p>Sale—Action by Seller for Damages—Allegation of Nonpayment.— An allegation in a complaint for breach of contract to buy grain that the defendant “failed and refused to accept said grain, and to . ■ perform his agreement, and refused to pay the purchase price of said grain or any part thereof,” together with an allegation that because of such refusal and failure the plaintiff “was compelled to sell said grain to another,” sufficiently alleges the fact of nonpayment and is not a mere conclusion of the pleader.</p> <p>Id.—Definition of Word “Fail.”—To fail means to leave unperformed, to omit, to neglect; and therefore the allegation that the defendant failed to pay was a direct allegation of nonpayment.</p> <p>Id.—Cure by Judgment in Absence of Special Demurrer.—If the complaint is defective in alleging nonpayment the defect is, in the absence of a special demurrer, cured by judgment.</p> <p>Ib.—Failure to Allege Ownership of Claim Sued on—Waiver of Defect.—A defect in the complaint in not alleging that the plaintiff was the owner at the commencement of the action of the claim assigned to and sued on by him will not be considered in the absence of a special demurrer.</p> <p>Id.—Failure to Allege Date of Tender—Harmless Error.—If an allegation of tender by the plaintiff is indefinite or uncertain as to the date thereof, error in overruling a demurrer to it on that ground, not resulting in injury or disadvantage to the defendant, is harmless.</p> <p>Id.—Delivery of Grain by Seller—Notice—Warehouse Receipts.— Where the contract for the sale of the grain provided for delivery between August 15th and September 1st, and in July the seller notified the buyer that the grain was ready for delivery and tendered him the warehouse receipts therefor, but the buyer refused the tender as premature, and thereafter the seller assembled the grain at one point and on the 29th of August gave warehouse receipts to his agent with instructions to deliver them to the buyer on his payment of the purchase price of the grain, and the agent, being unable to find the buyer because of his absence from the county, left a written notice at his residence and also mailed him a duplicate which was received in due course of mail, and the notice was handed to him on the morning of September 1st after his return, the delivery of the grain is timely; section 1858b of the Code of Givil Procedure providing that the transfer of negotiable warehouse receipts is a symbol!cal delivery of the goods called for by them, and passes the title thereto as effectually as if an actual delivery had been made.</p> <p>Id.—Notice of Time and Place of Delivery.—Such notice satisfies the requirement of the law that if the contract of sale did not designate the warehouses in which the grain was to be assembled, the buyer was entitled to notice of the time and place at which delivery would be made a reasonable time in advance thereof.</p> <p>Id.—Failure of Notice Due to Fault of Buyer.—If such notice, because of the buyer’s absence from home, had not reached him until •the expiration of the time limited, the fault would have been his and he could not complain.</p>

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

<p>Judgment by Default—Motion to Vacate—Affidavit of Merits—An affidavit of merits, .on motion to open a default judgment, which recites that' “I have fully and fairly stated -the case of the defendants,” etc., instead of the facts of the ease, is insufficient.</p> <p>Id.—Absence of Notice of Filing Affidavit.—An affidavit in support of a motion to open a default judgment, filed by permission of court after the submission of the motion, but without notice to the plaintiff and not referred to in the notice of motion, cannot be considered.</p>

<p>Appeal—Eecokd Must be Certified by Judge—Stipulation of Parties not Sufficient.—The record on appeal from- an order taxing costs must be certified by the judge under section 953a of the Code of Civil Procedure, or rule 29 of the supreme court. Neither the certificate of the clerk nor the stipulation of counsel can take the place of the judge’s certificate.</p> <p>Id.—Costs-—Counsel Fees in Libel or Slander.-—The one hundred dollars allowed by statute (Stats. 1871-2, p. 534) to the plaintiff for counsel fees if he is successful in a libel or slander case are penal and not part of the costs denominated as such. They should only be taxed in the statutory amount after final judgment.</p> <p>Id.—Second Trial—Costs of First Trial.—The ordinary costs of a first trial of an action tried a second time, either because of the granting of a new trial or on reversal of the judgment; may ultimately be taxed in favor of the prevailing party.</p>

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

<p>Corporations—Liability for Services of Attorney Employed by President.—Where the president of a corporation employs an attorney and the corporation receives and accepts the benefits of his services, it is liable for the reasonable value thereof, although the president was not authorized by the directors to employ the attorney.</p>

<p>Dedication—Sale oe Lots on Map Showing Alley—Estoppel.—If the owner of land produces to purchasers of various lots a map showing that a certain strip is an alley and represents to them that the strip is an alleyway, which representations are acted upon, the alley is thereby established.</p> <p>Id.—Prescriptive Title to Alleyway—Payment op Taxes.—^Long-continued use by abutting property owners of a strip of land as an alleyway, under claim of right and adversely, establishes a prescriptive title thereto, without the payment of taxes, if none are shown to have been assessed.</p> <p>Id.—Tax-Sale op Way—Title Acquired by Purchaser.—Where the owner of a tract sells the various lots in such a manner as to give the purchasers an easement over a strip as an alley, and afterward conveys the alley, the purchaser of the alley takes only the naked legal title, and that is all that can be assessed against him and be conveyed by tax deed. The easement remains unaffected.</p> <p>Id.—Obstruction op Way—Injunction by Abutting Owner.—Under section 731 of the Code of Civil Procedure, the owners of lots abutting on ah alleyway may maintain an action to restrain the owner of the legal title from obstructing the way.</p>

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

<p>Novation—Essential Requisites—What Constitutes.—Novation implies four essential requisites: 1. A previous valid obligation; 2.'The agreement of all the parties to the new contract; 3. The extinguishment of the old contract; and 4. The validity of the new one.</p> <p>Id.—Promissory Note op Corporation.—When the holder of a promissory note against a corporation releases the corporation from liability on the assumption of the indebtedness by the assignee of the property of the corporation, the note is not, on the theory of a novation, the basis of the. obligation but the measure of it.</p> <p>Id.—Uncertainty in Pleading—Harmless Error.—Error in overruling a demurrer to the complaint in an action to recover from the assignee the amount of such assumed indebtedness, on the ground of its uncertainty as to the theory upon which it was framed, is not ground for a reversal after a full trial on the merits, if it is clear that the appellant has not been prejudiced thereby,</p> <p>lb.—Evidence to Show Original Indebtedness and Its Assumption.— The evidence is ample to show that the corporation was indebted to the plaintiff on the promissory note, that the note was one of the obligations which the defendant assumed, and that the plaintiff released the corporation from liability for such indebtedness and accepted the agreement of the defendant in place thereof.</p> <p>Id.—Construction of Agreement—Obligations Included.—Where the transferee of the property of the corporation agreed “to assume any and all valid existing obligations of the company as shown by its books and to discharge the corporation from liability thereon,” his agreement covered a promissory note as shown in the book of minutes and in the book of bills and notes payable.</p> <p>Id.—Evidence—Admissibility of Agreement.—The agreement contemplating the transfer of the corporation’s property to the defendant and his assumption of the corporation’s liabilities is admissible in evidence.</p> <p>Id.—Admission of Note in Evidence—Harmless Error.—The defendant suffered no injury from the court refusing to state upon what ground and for what purpose it admitted the promissory note in evidence.</p> <p>Id.—Statements of Plaintiff—Self Serving Declarations'—-Hearsay. A statement by the plaintiff, in the absence of the defendant, that he was satisfied with the contemplated arrangement and was willing to accept the defendant for the corporation’s indebtedness, is admissible in evidence.</p> <p>Id.—Motion to Strike Out Evidence—Failure to Bule On.—Error of the court in failing to rule on a motion to strike out such evidence was without prejudice to the defendant, as the ruling should have been adverse to him.</p>

<p>Statute op Frauds—Sale op Corporate Stock—Parol Evidence.—In an action to recover the purchase price of corporate stock, parol evidence is admissible to show that the stock was already in the possession of the buyer as pledgee, that there was an oral agreement of sale, and that it has been carried out in part.</p> <p>Id.—Change op Possession When Buyer Already Holds Stock as Pledgee.—Where the buyer is thus in possession of the stock as bailee or otherwise, manual tradition is not necessary, but delivery and acceptance are deemed to have been constructively accomplished; and where the conduct of the parties is such as to be inconsistent with any other supposition than that there has been a change in the nature of the holding, the actual transfer of the stock or its symbol is not necessary.</p> <p>Id.—Question for the Jury.—Whether such a change has taken place is a question for the jury; and the intention of the buyer to accept the stock pursuant to the agreement is also for the jury.</p> <p>Id.—Evidence—Questions to Witnesses Properly Excluded.—In such action questions to the defendant: “Have you ever asked to have the stock transferred on the books” of the company ? And have “you at any time treated this stock otherwise than as security?” are properly excluded.</p> <p>Id.—Instructions as to Statute op Frauds—Failure to Give.—In an action for the purchase price of corporate stock which was sold under an oral agreement while in the possession of the buyer as pledgee, it is .prejudicial error to refuse to give instructions offered by the defendant relative to the statute of frauds and to omit to give any instruction on that point.</p> <p>In.—Instructions Applicable to Oral Transfer of Stock.—The following instructions correctly state the principle which govern such a case: where there is no writing showing the terms of a sale, and the alleged price exceeds two hundred dollars, and no part of the price is paid, it is necessary, in order that the agreement be valid, that the Buyer accept or receive part of the thing sold, or part of the evidences thereof; to satisfy the statute of frauds there must be a delivery by the seller, with an intention of vesting the right of possession in the buyer, and there must be an actual acceptance or receipt by the buyer, with the intention of taking possession as owner; where personal property alleged to have been sold is already in the possession of the buyer at the time of the alleged sale, while it is not necessary for the seller to retake the property and redeliver it to the buyer, yet it is necessary that there be evidence to show the equivalent of a receipt or acceptance, and this must be in addition to the oral evidence of the agreement of sale; and plaintiff must show that the conduct of the buyer in dealing with the property already in his possession was inconsistent with the supposition that the former possession of the property by the buyer continued unchanged.</p> <p>Id.—Delivery and Acceptance—Intention of Parties.—Whether the statute is to be read as found in section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure, or as in section 1739 of the Civil Code, neither receipt nor acceptance nor both receipt and acceptance can avail unless there be a delivery of the goods with the intention to vest the right of possession in the vendee and an actual acceptance by the latter with the intention to take possession as the owner.</p>

<p>APPEAL from an interlocutory decree in partition of the Superior Court of Stanislaus County and from- an order refusing a new trial. L. W. F'ulkerth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Writ op Prohibition—Interference With Affairs of Corporation.— Prohibition will not issue to restrain the superior court from enforcing an order enjoining certain persons individually and as officers and stockholders of a corporation from preventing the carrying on of the corporate business, under the management of another person, since the writ of review furnishes an adequate remedy.</p> <p>In.—Adequacy of Writ of Certiorari.—The writ of prohibition should not ordinarily issue where certiorari will lie, unless it appears that ■the applicant for the writ will necessarily be injured if the tribunal sought to be prohibited is permitted to proceed.</p> <p>In.—Jurisdiction op Supreme Court and op Court op Appeals.-—Another cogent reason for the application of. the rule is that, under the constitution, the judgments of this court are not final until the expiration of thirty days, after which at any time within the next succeeding thirty days the supreme court may, upon petition, order the ease transferred to that court for decision. Hence, after staying the trial court in the exercise of its jurisdiction by issuing the alternative writ, such restraint must continue for a period of sixty days, notwithstanding an adjudication by this court at the final hearing that the petitioner is not entitled to the peremptory writ prayed for.</p>

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

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

<p>Carrier—Injury to Passenger in Hotel Bus Where Wheel Buns Off.—In an action for damages by a passenger in a hotel bus, who was injured by one of the wheels of the vehicle running off, the action of the trial court in granting him a new trial will not be disturbed on appeal, if it cannot be said as a matter of law that no negligence was shown to have been committed by the carrier through which the accident occurred.</p> <p>Id.—New Trial—Insufficiency of Evidence—Discretion of Court.— A motion for a new trial for insufficiency of the evidence to justify the verdict or other decision is addressed to the discretion of the court, and the granting of a new trial on this ground will not be reversed on appeal unless there was a manifest abuse of discretion.</p>

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

<p>■ Judgment—Relief on Ground of Fraud—Time for Seeking—Equitable Considerations.—In applying the statutory rule that relief in equity from a judgment on the ground of fraud must be sought within three years after discovery by the aggrieved party of the facts constituting the fraud, certain other considerations, equitable in nature, must be regarded.</p> <p>Id.—Fraud—Equitable Relief—Limitation of Actions.—The right to invoke the aid of equity for fraud after three years have expired, under section 338 of the Code of Civil Procedure, is an exception to the general statute on the subject, and one must bring himself clearly within the terms of the exception if he desires to claim the benefit of it.</p> <p>Id.—Discovert or Knowledge of Facts Constituting Fraud—Pleading.—Discovery and knowledge are not convertible terms. Whether there has been a discovery within the contemplation of the statute is a question of law to be determined by the court from the facts pleaded. It is not therefore sufficient for the plaintiff to aver that he was ignorant of the facts at the time of their occurence and was not informed of them until within the three years. He must show that the acts of fraud were committed under such circumstances that he would not be presumed to have knowledge of them; it being the rule that if he has notice or information of circumstances which would put him on inquiry which if followed would lead to knowledge, or that the facts were presumptively within his knowledge, he will be deemed to have had knowledge of the facts.</p> <p>Id.—Fraud—Evidence in Action for Belief.—The burden of proof rests upon no one more heavily than upon a plaintiff seeking relief on the ground of fraud, and he should not be unduly hampered as to the means of making proof.</p> <p>Id.—Pleading—Limitation on Bight to Amend.—There is some limit to the right to amend pleadings, even when only special demurrers are rightfully sustained.</p> <p>Id.—Action to Vacate Judgment for Fraud—Limit on Bight to Amend Complaint.—In this action to set aside a judgment of foreclosure for fraud in preventing a defense upon the merits, the court did not abuse its discretion in sustaining a demurrer to the sixth amended complaint and refusing leave to file a seventh.</p>

<p>Cancellation of Instruments—Laches in Bringing Action—Amendment of Complaint.—In an action to set aside a deed for want of consideration, the court does not abuse its discretion in sustaining a demurrer to the sixth amended complaint and refusing leave to file the seventh, where there has been a delay of nearly three years in bringing the action and no excuse therefor is offered nor fraud alleged.</p> <p>Id.—Promptness Requisite in Bringing Action.—The same degree of promptness is necessary in taking steps to have an instrument canceled as in the case of rescission of a contract.</p> <p>Ib.—Amendments to Complaint—Inconsistencies—Good Faith.—Inconsistencies in several amended complaints may lead the court to distrust the good faith of the plaintiff, and be regarded as a circumstance in support of the court in disallowing a further amendment.</p>

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

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

<p>Corporations-—Director of Circus—Authority to Employ Performer.—The director-general of a circus company, who employed a performer for one season, has ostensible authority to re-employ ■him for the next season.</p> <p>Id.—Restrictions on Authority of Director—Private Instructions. The rule that a principal cannot limit the apparent authority of his agent by private instructions is here applied where the director-general of a circus company, acting as its ostensible agent, employed a performer.</p> <p>Id.—Ratification of Director’s Contract.—The rule that a principal will be held to have ratified an unauthorized contract entered into by his agent, if he does not repudiate the contract after being informed of it, is here applied to a circus company whose director-general, ostensibly acting as its agent, employed a performer.</p> <p>Id.—Authority of Director—Evidence—Letters.—Where a circus performer sues the company for breach of the contract of employment, and the defendant denies that the execution of the contract by its director-general was authorized, letters written by the director-general, long after the execution of the contract and evincing a feeling of bitterness and vindictiveness, are inadmissible.</p> <p>Id.—Findings—Time for Piling—Directory Statute.—-Section 632 of the Code of Civil Procedure, requiring findings to be filed within thirty days after submission of the ease, is merely directory.</p> <p>Id.—Application to Reopen Case Because of Failure to Produce Evidence Through Mistake.—It is proper to refuse to reopen a case after the decision is announced, but before the findings and judgment are filed, to admit evidence which the court believes will not justify changing the decision, the failure to produce the evidence at the trial having been due to counsel’s mistake in law in that he did not deem it material or necessary.</p> <p>Id.—Affidavit on Motion to Reopen—Evidence.—Affidavits read at the hearing of a motion to reopen the case cannot be deemed evidence touching the facts found, and must be disregarded in considering the evidence supporting the finding.</p>

<p>APPLICATION for Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Transcript of Phonographic Report—Time for Demanding—Notice of Entry of Judgment.—Under section 953a of the Code of Civil Procedure an appellant has the right to demand a transcript of the phonographic report within ten days after notice of the entry of judgment, and before he can be deprived of this right it must be shown that he has had such notice.</p> <p>Id.—Time of Notice of Judgment—Presumption and Burden of Proof.—If there is nothing in the record to show that he has had such notice, except his written demand that a transcript of the phonographic report be prepared, it may be assumed that he then had notice of the entry of the judgment, but the burden is not on him to show that he had no earlier notice.</p> <p>B>.—Time for Piling Transcript—When Begins to Run.—The time for filing the transcript does not begin to run until the phonographic report is approved and certified by the judge, or the proceeding to obtain the same has been terminated in the court below by dismissal or otherwise.</p>

<p>Appeal—Dismissal Because Appellant not Aggrieved.—When there are numerous papers besides the transcript, more or less involved in an examination of the motion to dismiss the appeal because the appellant is not an aggrieved party, the motion should attend the ¡hearing on the appeal.</p>

<p>Waters and Watercourses—Action Involving Conflicting Eights— Findings.—When in an action involving conflicting water-rights it is found that the plaintiffs’ predecessors appropriated the water prior to the time when the defendants’ predecessors located upon their lands, a failure to find that the lands of the defendants were riparian to the water is not material.</p> <p>Id.—Form of Findings—When not Objectionable.—Findings are not legally objectionable because in general form but equivalent to a specific finding as to each material allegation of the pleadings.</p> <p>Id.—Appropriation of Water—Failure to Divert Through Definite Ditch.—An actual appropriation of water, without compliance with the code provisions requiring diversion through a definite ditch or watercourse, is effectual as against any one who has not a superior right at the time of the diversion. It cannot divest prior rights, but it will be good as against a subsequent apprapriator.</p> <p>Id.—Time of Appbopeiation—Evidence Showing.—In this action involving conflicting rights to waters in a creek, the finding that the • plaintiff’s predecessors in interest actually diverted and appropriated .the waters of the stream not only prior to any appropriation by others, but before the time when the original locator of the defendants’ land actually located thereon under the homestead laws, or acquired any interest in the riparian! rights attached to such lands, is sustained by the evidence.</p> <p>Id.—Judgment—Conclusiveness as to Wateb-bights.—A judgment in an action determining water-rights is binding on successors to the parties in a subsequent action, and estops them from asserting rights based upon any claim existing prior to the judgment.</p>

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

<p>Tax-sale—Unauthentioated Assessment-boll—Action to Quiet Title.—The owner o£ real property may have the title thereto quieted as against a purchaser at a tax-sale, if the assessment-roll was not authenticated by the auditor as required by section 3732 of the Political Code.</p> <p>Id.—Assessment-boll—Finding as to Authentication—Review on Appeal.—A finding by the trial court that the auditor failed to make an affidavit to the assessment-roll will not be disturbed on appeal, where the record does not furnish a description of the situation.</p> <p>Id.—Tax-rolls—Proper Authentication Essential to Sale.—The tax-collector cannot make a valid sale of real property on account of delinquent taxes until he has received from the auditor the tax-rolls authenticated by the affidavit required by section 3732 of {he Political Code.</p> <p>Id-—Affidavit to Assessment-roll—Evidence in Place of.—The mere proof of the existence of the requisite facts which might have been set forth in the auditor’s affidavit to tax-rolls, cannot supply ■the want of such affidavit and validate a tax-sale when there was no affidavit.</p> <p>Id.—Quieting Title—Tender of Amount of Tax by Plaintiff.—In an action by a property owner to have the title quieted as against a purchaser at a tax-sale whose deed conveyed no title, it is not essential as a condition precedent that the plaintiff tender the amount of the tax justly assessed against him.</p> <p>Id.;—Tax-deed—Conclusiveness as to Regularity of Proceedings.— A tax-deed,is not conclusive proof of the regularity of all proceedings leading up to the sale.</p> <p>Id—Notice of Tax-sale—Deed Disclosing Absence of.—If the tax-deed shows on its face want of the statutory notice of the sale, this renders the deed void.</p>

APPEALS from judgments of the Superior Court of Los Angeles County and from orders refusing a new trial. Chas. Monroe, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. E. T. Zook, 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 refusing a new trial. Curtis D. Wilbur, 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 refusing 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. Clarence A. Raker, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Mo-doc County. Clarence A. Raker, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Kern County granting a temporary' injunction. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis D. Wilbur, 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. Gavin W. Craig, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—False Report by Bank—Evidence.—In a prosecution of a bank president for rendering a false report as to the amount of the paid-up capital, entries in the books of the bank, made at a time when he had no connection with it, are hearsay and not admissible against him, and therefore they cannot be used as a basis for the testimony of an expert accountant.</p> <p>Id.—-Testimony as to Intent or Belief.—In a prosecution of a bank president for making a false report to the bank commissioners, his own testimony that he believed the report to be true, or that he had no intent to deceive the commissioners, is admissible.</p> <p>Id.—Testimony Showing Absence of Intent to Deceive.—In a prosecution of a bank president for making a false report to the bank commissioners, where a specific intent to deceive is an essential ingredient of the offense, the defendant should be allowed to prove any fact tending to show that he had no such intent, or that he did not knowingly make a false statement.</p> <p>Id.—Instruction Covered by Others.—Requested instructions are properly refused if they are substantially given in other instructions.</p>

<p>Master ane Servant—Existence of Relation—Injury to Employee by Falling or Elevator.—In this action for personal injuries sustained by the plaintiff; through the falling of a passenger elevator in an apartment house, the evidence shows that the plaintiff was an employee, rather than a partner of the defendant in the management of the house, and hence that the defendant owed the plaintiff the duty to furnish a safe place and safe appliances.</p> <p>Id.—Joinder of Dependants in Action Ex Delicto.—The rule that in an action of tort all persons concerned in the commission of the wrong may be joined, or any of them may be sued severally, applies to acts of copartners performed in the transaction of the business of the partnership, and applies as well where the relation of master and servant exists.</p> <p>Id.—Misconduct of Counsel in Argument—When not Prejudioal.— Alleged misconduct of counsel for the respondent in referring, during his argument, to the absence of certain witnesses who, it was assumed, might have testified to the condition of the elevator immediately prior to the accident, will not be considered prejudicial to the appellant, if, for lack of assignment of error in that regard, the evidence will be deemed sufficient to support the charge of negligence against the defendant.</p> <p>Id.—Appeal—Questions not Argued in Briefs.—Questions as to the admission or rejection of evidence, if not argued in the briefs, call for no attention on appeal.</p> <p>Id.—Safe Place and Appliances—Continuous Duty to Furnish.—An employer owes a continuous duty to exercise ordinary care to furnish his employees a reasonably safe place to work and reasonably safe appliances.</p> <p>Id.-—Inspection of Appliances—Duty to Make.—An employer owes the duty to exercise reasonable care to inspect appliances furnished for the use of employees.</p> <p>Id.-—Notice of Condition of Elevator—Instructions.—Instructions requested by the defendant as to plaintiff’s knowledge of the condition of the elevator, are properly refused when their substance is fairly stated in other instructions given by the court.</p> <p>Id.—Assumption of Bisk by Employee—Instructions.—An employee assumes all the ordinary risks of his employment, and if he willfully encounters dangers that are known to him, or are notorious, the master is not responsible. But the refusal of the court to give an instruction in such terms is not reversible error, if the court had already given to the jury the substance of the code provisions which declare when an employee may recover, notwithstanding Ms knowledge of defective or unsafe conditions of machinery, structures, appliances, etc.</p> <p>Id.—Defective Elevator—idealization of Bisk.—Where an employee is injured by the falling of an elevator in an apartment house, and the testimony shows that he knew that the- elevator did not work well and that the cable was worn, but that he was not in- ' formed that it was unsafe, it becomes a question of fact to be settled by the jury as to whether or not he comprehended and realized the risk he was running in making use of the elevator.</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 Hunt, 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. Franklin J. Cole, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Brokers—Commissioners Dependent upon Acts op Principal.—Although a broker is entitled to his commissions when he has produced a purchaser upon the terms stated in the contract and within the time limited, he may so contract as to make his compensation depend upon contingencies which his own efforts cannot control, even though such contingencies relate to acts of his principal.</p> <p>Id.—Procuring Tenant—-Destruction op Building Before Completion.—Where a broker is employed to obtain a tenant for a building to be erected, and the contract provides for the payment of his commission “upon the signing of this lease,” no' commissions are earned until the signing of' a valid lease, unless the failure to secure such signing results from the fault of the principal; and if a tenant is procured who merely signs a contract for a lease to be executed in the future, and the building is burned before completion and before the signing of the lease, the broker is not entitled to commissions.</p> <p>Contract—Construction—Subject Matter.-—A contract must be construed with reference to the subject matter thereof.</p> <p>Id.—Contract for Lease—Destruction op Building.—A contract for leasing a building to be constructed is terminated by the destruction of the building when nearly completed.</p>

<p>Accord and Satisfaction—What Constitutes.—Where a certain amount is offered by a debtor upon condition that it be taken in full payment of a disputed or unliquidated claim, and the creditor, with knowledge of such condition, accepts the offer, it is an accord and satisfaction, and the creditor may not thereafter recover any further balance. But it must clearly appear that the payment is offered in full settlement, and that the creditor accepts the payment with knowledge of such condition, or with knowledge of such facts as is equivalent thereto.</p> <p>Id.—Acceptance or Check.—Where a debtor sends to his creditor a statement and a check for the balance shown by the statement, and the creditor gives a receipt for the amount of the check, the acceptance of the check does not, as a matter of law, operate as an accord and satisfaction; there being nothing upon the face of the cheek, nor upon the statement, that expressly or by necessary implication informs the creditor that the offer of the check is upon the condition that it be accepted in full payment of his claim.</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. B. V. Sargent, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporation—Bond Election—Ordinance Providing Man- ' ner.—Where the general statutes confer authority upon a municipality to specify the manner of voting upon bond issues, an ordinance providing the manner of election has the force and effect of statute.</p> <p>Id.—Bond Election—Disregard op Ordinance.—Specific directions in an ordinance providing for a bond election are mandatory, and a disregard thereof renders the vote nugatory.</p> <p>Id.—Ballots-—Identifying Marks.—Where a voter at a municipal bond election puts the stamp on his ballot in the proper place as to the first proposition voted upon, but as to the second proposition he places it upon the word “no” outside the square, the ballot is void as having an identifying mark.</p> <p>Id.—Stamp or Mark not in Voting Square.—Ballots at a municipal bond election which are stamped by the voter on the word “no” or “yes,” but not in the voting square, are mere blanks, not to be counted for any purpose.</p> <p>Id.—Use of Pencil Instead of Stamp.—Where the cross in the voting square of a "ballot, cast at a municipal bond election, is made with a lead pencil, instead of with the voting stamp as required by ordinance, the ballot must be disregarded.</p> <p>Id.—Act of Voting—Deposit of Ballot.—The final deposit of a legal ballot in the box is the act of voting.</p> <p>Id.—Invalid Ballot—Counting in Determining the Number of Voters.—If a ballot cast at a municipal bond election is not expressive of any wish or preference of the voter which under the law may be considered and given effect, such person has not voted, and his vote should not be counted even in determining the number who have voted at the election.</p> <p>Id.—Bond Election—Estimate of Cost in Ordinance.—Where an ordinance calling a municipal bond election discloses that no estimate of the cost of the proposed public improvements has been made, a valid election cannot be held.</p>

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

<p>Mechanics’ Liens—Time for Piling Claim.—A claim for a mechanic’s lien, filed more than ninety days after the completion of the building, comes too late.</p> <p>Id.—Notice by Owner of Building—Bindings—Beview on Appeal.— A finding of the trial court, supported by evidence, that the owner of the building gave notice that he would not be responsible for improvements being made by his lessee, must be accepted by the appellate court.</p> <p>Id.—Liability of Lessor for Materials Furnished in Remodeling Building.—The owner of a building is not personally liable for materials furnished in remodeling the building at the instance of the lessee, where the lease contemplates that all improvements, alterations or repairs shall be made by the lessee and not by the lessor, there being no showing that the owner authorized the improvements or was in any manner connected with the contract therefor.</p> <p>Id.—Estoppel of Lessor to Deny Liability for Materials.—The owner of a building is not estopped to deny Ms responsibility for materials furnished in remodeling the building at the instance of the lessee, by mere knowledge on his part that the work is'in progress, when the lease contemplates that all repairs and alterations shall be made by the lessee and the owner gives notice of his nonresponsibility.</p>

<p>Mortgage—'Security for Future Loans and Advances.—A mortgage to secure “all moneys due or hereafter to become due” to the mortgagee from a third person secures future loans and advances as well as existing indebtedness; the words “moneys due or hereafter to become due” are broader in their scope than the words “debts due or hereafter to become due.”</p> <p>Id.—Discretion of Mortgagee to Make Future Advances.—The fact that a mortgagee has discretion in making future advances does not require the mortgage to be interpreted as not covering future advances.</p> <p>Id.—Option or Discretion to Make Advances.—A mortgage to secure future advances is not invalid as between the parties, because the making of the advances is left to the option or discretion of the mortgagee.</p> <p>Id.—Advances Made to Committee of Creditors.—Money borrowed from the mortgagee, under a mortgage to secure future advances, by a committee of the creditors of the mortgagor after they have taken control of his business in order to straighten it out, is covered by the lien of the mortgage.</p> <p>Id.—Payments—Application to Obligations.—Where it is not shown that a debtor, at the time of making payments, manifested an intention that they should be applied to the extinction of any particular obligation, and it is not shown that the creditor did not make the application within a reasonable time after the payments, the debtor cannot invoke the rule governing the application of payments which is prescribed by subdivision 3 of section 1479 of the Civil Code.</p> <p>Id.—Consideration for Mortgage—Past Indebtedness.—Where a corporation becomes indebted to a bank for money borrowed for the corporation by' one of its shareholders holding sixty per cent of the stock, and the bank, after demanding payment or security therefor, extends the loan in consideration of the execution of a mortgage by the stockholder, and makes further advances on the faith of such security, the mortgage is not invalid as having for its consideration the past indebtedness of a third party.</p> <p>Id.—Foreclosure Proceedings—Findings.—In this action to enforce a mortgage securing future advances, the findings, although there is some ambiguity in the complaint respecting certain of the loans, are not inconsistent and contradictory, but are consistent with the theory contended for by the plaintiff and supported by the evidence.</p> <p>Id.—Assignment of Mortgage—Execution by Attorney in Fact.— The assignee of a mortgage and the notes thereby secured is at least ostensibly the owner thereof, when the assignment has been made by the surviving attorney in fact of a foreign banking corporation, under a power of attorney given by its officers and authorizing both or either of two named agents to transact any business which might come within the scope of the banking business as fully as could the officers themselves.</p> <p>Id.-—Evidence—Parol to Show Mortgage Intended to Cover Future Advances.—Parol evidence is admissible to show whether a mortgage was intended to cover future advances.</p> <p>Id.-—Oral Agreement for Mortgage to Secure Future Advances.— An oral agreement between the mortgagor and the mortgagee to allow the mortgage to stand as security for additional advances to be made by the mortgagee to the mortgagor will be enforced in equity when there are no intervening rights of third persons to be prejudiced thereby.</p>

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

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

<p>Husband and Wife—Action Against by Architect—Wife’s Liability.—In this action against a husband and wife by an architect for services in preparing plans, at the request of the husband, for a building to be constructed upon the wife’s land, the evidence justifies the finding that the services were rendered at her special request pursuant to an agreement made by her husband as her agent, or that she ratified her husband’s acts. The plaintiff is therefore not entitled to a judgment against the husband, but can hold the wife liable.</p> <p>Id.—Separate Property of Wife—Conveyance to Her.—Where a conveyance of separate property is made to a woman directly by her husband, or by a third person at his direction, the property becomes her separate estate.</p> <p>Id.—Agency of Husband for Wife—Evidence to Show.—While the authority of a husband to represent his wife in the management of her separate property is never presumed merely from the existence of the marriage relation, such authority may be established by circumstantial evidence; and as between husband and wife much less evidence is needed to establish the fact of agency of one for the other than is ordinarily required.</p> <p>Id.—Appeal—Rehearing in Supreme Court.—In cases directly appeal-able to the district court of appeal, the supreme court, in determining whether a hearing shall be had therein after decision by the district court of appeal, will not consider any alleged fact not fairly shown on the face of the opinion of the district court of appeal, l The supreme court accepts such opinion as correctly showing the facts.</p>

<p>Appeal—Hotice and Undertaking—Dismissal oe Appeal.—Where the record shows that the notice of appeal from a judgment and from an order denying a new trial was duly given, and that within a day or tw.o succeeding an undertaking on appeal from the judgment was filed, the appeal from the order will not be dismissed because the same was not included in the undertaking given.</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 refusing a new trial. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Abortion—Sufficiency of Evidence to Support Conviction.—The evidence in a prosecution of a physician for producing an abortion is sufficient to sustain a verdict of conviction, where the testimony of the prosecutrix is corroborated by her paramour, who was an accomplice of the physician, and also by the testimony of another physician whose connection with the matter was such as to make it proper for the jury to determine whether or not he was an accomplice, and where the testimony of these two witnesses is corroborated by admissions of the defendant and other independent testimony.</p> <p>Id.—Accomplice—Corroboration .Need not go to Every Material Fact.'—The corroborating evidence necessary to furnish sufficient ground upon which a person charged with a crime may be convicted need not go to every material fact, but it is sufficient if it tends to connect the defendant with the commission of the offense.</p> <p>Id.-—Defendant's Testimony in Corroboration of Accomplice.—A necessary corroboration may be furnished by the defendant’s own testimony.</p> <p>Id.—Sufficiency of Corroborating Testimony.—Although more is required by way of corroboration than to raise a mere suspicion, yet the corroborating evidence is sufficient if it, of itself, tends to connect the defendant with the commission of the offense, although it is slight, and entitled, when standing by itself, to but little consideration.</p> <p>Id.—Hypothetical Question to Physician—Harmless Error in Rejecting.-—It is not prejudicial error, in a prosecution for abortion, to sustain an objection to a hypothetical question to a physician by which it is sought to show that drugs prescribed by the defendant would not tend to produce an abortion, when it is not claimed that drugs caused the abortion, but that they were given to relieve conditions caused by the use of an instrument, and the physician states, in answering another question, that the drugs would not have a tendency to produce an abortion.</p> <p>Id.—-Witnesses — Cross-examination — Argumentative Questions.— After witnesses have been extensively cross-examined, objections to questions which are not pointed and direct to the matter sought to be elicited, but rather argumentative and by way of suggesting comparison, are properly sustained.</p> <p>Id.—Trial—Remarks of Court as to Witness or Testimony.—Where at a criminal trial the court, during a colloquy between the attorneys, referring to the prosecutrix, observes that “she is testifying only to facts,” but the court afterward remarks that “the jury will remember that the testimony comes from the witnesses and only from the witnesses,” the error is not prejudicial.</p> <p>Id.—Remarks of Court or Counsel—Presumption as to Effect on Jury.—Where the remarks of the court or of counsel are urged as error, it must be assumed that the jury was composed of men of fair understanding, and that they were not only able to distinguish - between argument and evidence, but that also they gave heed to the instructions of the court.</p> <p>Id.—Misconduct of Associate Counsel for People.—Misconduct of the associate counsel for the people in referring to the defendant as having brought out a “lot of trash,” and insisting that the prosecution is “entitled to show the real facts,” is not reversible error, where the court instructs the jury to disregard statements of counsel.</p> <p>Id.—Evidence-—Objection to Admission—Nonpbejudicial Error in Overruling.—When the defendant in a prosecution for abortion has testified that he had three formulas filed at a drug store which he gave to the prosecuting witness and that these were not all the formulas he furnished the drug store, it is not prejudicial error to overrule -an objection to a question as to approximately how many • he had on file, .especially when no ground of objection is stated.</p>

<p>Criminal Law—Larceny—Indictment When Theft in Another County.—An information charging larceny of certain cattle in the county into which they were driven and sold after having been stolen is sufficient to give the superior court of that county jurisdiction, without any allegation that the cattle were stolen in another county and thereafter driven into the county wherein the information is filed.</p> <p>Id.—Witness—Insane Person—Competency is for Trial Court.— The competency of a witness whose sanity is questioned is for the court to determine, and its determination is not a matter for review. Id.—Burden of Showing Incompetency.—The burden of showing the incompetency of the witness is on the party who asserts it.</p> <p>Id.—Weight of Testimony is for Jury.—The coui-t having determined that a witness is competent, when his sanity has been questioned, the weight and effect of Ms testimony is properly left to the jury. Id.—Insane Person—When a Competent Witness.—A person affected with insanity is competent as a witness, if he has sufficient understanding to apprehend the obligation of an oath and give a correct .account of the matter in issue.</p> <p>Id.—Determination of Competency—Presence of Jury.'—Where a witness is objected to as being insane, the court usually conducts the examination for determining his competency in the presence of the jury, but such examination in this case in the absence of the jury was not prejudicial error.</p>

<p>Negligence—Runaway Horse in Street—Collision With Vehicle— Nonsuit.—In an action for personal injuries caused by a runaway horse, it is error to grant a nonsuit at the close of plaintiff’s case, if the averments in the complaint and evidence produced at the trial show that the defendant’s horse, attached to a wagon, was running away without a driver in the streets of a city, and collided with the buggy in which the plaintiff was riding.</p> <p>Id.—Unattended Horse Running Away—Presumption op Negligence.—When a horse runs away unattended in the streets of a city, and in its course injures a person without his fault, a primos facie case of negligence on the part of the owner of the horse is shown.</p>

<p>Negligence—Turntable Near Highway—Liability of Railroad to Children.—A railroad company which maintains a turntable unlocked and unguarded near a public highway is liable for personal injuries received by .a boy ten years old* from playing with or riding on it.</p> <p>Id.—Contributory Negligence of Boy.—The question of contributory negligence of a boy ten years old in playing on the turntable is for the jury.</p> <p>Id.—Children—Age When Accountable for Actions.—There is no precise age at which, as a matter of law, a child is to be held accountable for his actions to the same extent as an adult.</p> <p>Id.—Broken Lock of Turntable—Knowledge of Railroad.—An instruction that if the jury should find that the railroad company did not break or cause to be broken the fastenings of the turntable, but that the same were -broken without its knowledge or consent, the verdict should be for the defendant, is properly refused. It omits the qualification of knowledge attained by the exercise of ordinary care.</p> <p>Id.—Negligence of Parent—Instructions.—An instruction that a parent who permits his child- to play in places where or with instruments or appliances with which he knows, or as a reasonable person ought to know, the child is liable to be injured, cannot recover damages for injury to the child, is properly refused. It ignores the defendant’s negligence as a possible or probable cause of the injury.</p>

<p>District Court op Appeal—Jurisdiction op Appeal in Equity Case.— The district court of appeal cannot acquire jurisdiction of an appeal taken directly to it in a suit in equity to set aside a deed on the ground of fraud and for a judgment for two thousand dollars in money, the alleged value of the rents and profits from the property.</p> <p>Id.—Jurisdiction—Amount in Controversy.—The district court of appeal does not have jurisdiction of a direct appeal to it, where the complaint calls for a money judgment for one hundred and eleven thousand, five hundred dollars.</p>

<p>Constitutional Law—Police Power—Regulation op Business.— Legitimate business, as well as those things which are nuisances per se, is subject to control under the police power when necessary for the preservation of the public health and welfare.</p> <p>Id.—General Law—What Constitutes.—A law is general which applies to all of a class, where the classification is proper, and if the act imposes duties and obligations upon all persons who stand in the same relation to the law, its uniformity is established.</p> <p>Id.—Tenement House Act—Conservation of Health—Protection from Fire.—The Tenement House Act (Stats. 1911, p. 860), regulating the construction of buildings intended for human habitation, and providing that such buildings shall not be occupied until the issuance of a certificate from the health department that the requirements of the act as to light, ventilation, and sanitation have been complied with, nor until the issuance by the building department of a certificate that the requirements respecting fire protection have been complied with, is not unconstitutional as class legislation, or as violating the uniformity requirement of the constitution, or as giving certain officials authority to determine questions relative to compliance with the law. The act is a proper exercise of the police power.</p>

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

<p>Criminal Law—Pandering—What Constitutes.—One who procures a woman to be received into a house of prostitution, to there follow the calling of a prostitute, is guilty of pandering, although she is received in the house on the condition that she should not ply her trade until registering with the police department and passing the clinic, which is never accomplished because of her arrest the day following.</p> <p>Id.—Inmate op House op Prostitution—Who is.—A woman who enters a house of prostitution with intent to remain, if she obtains a certificate from the clinical board and the consent of the police officers, is an inmate of the house while there with that intention, although she remains there only for twenty-four hours and does not ply her trade while there.</p>

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

<p>Criminal Law—Prior Conviction—Credibility of Witness.—Where a defendant, though admitting the charge of prior conviction upon arraignment, becomes a witness in his own behalf, he may be asked if he has ever been convicted of a felony. Such conviction may be proved as affecting his credibility as a witness.</p>

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

<p>Partnership—Loan by One Partner to the Other—Action to Recover Without Accounting.—Where one partner borrows money from the other with the intention of putting it into.the firm business, and does put it there, the loan is not a partnership transaction, and the lender can sue for the money, although there has been no settlement of the partnership accounts.</p> <p>Id.—Loan as Partnership Transaction—Conflicting Evidence— ' Review on Appeal.—Where the evidence is conflicting as to whether a loan by one partner to another was a partnership transaction, the finding of the trial court thereon will not be disturbed on appeal.</p>

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

<p>Criminal Law—Alibi—Evidence—Letters Written by Accused.— Where the evidence in a burglary ease is vague as to whether the crime was committed on the 23d or the 25th of the month, the latter being the date alleged in the information, and the defense consists chiefly of an alibi, a letter written by the accused in jail and given to his wife to deliver to a person, requesting him to testify that they were together on the 23d, is admissible.</p>

<p>Criminal Law—Submission to Jury of Question Whether Witness shall be Subpoenaed.—A defendant in a criminal case, who stands by and permits the court to submit to the jury the question whether or not a certain person shall be subpoenaed as a witness in his behalf, Will not be heard to complain thereof on appeal.</p> <p>Id.—Order Denying New Trial—Motion by Defendant to Vacate.— The motion of the defendant in a criminal ease to set aside. an order refusing a new trial is properly denied; the law does not authorize him to make such a motion or give the trial court jurisdiction to hear and determine the same.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to set aside an order dissolving an attachment. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fidelity Insurance—Bond for Integrity of Employee of Parcel Delivery Company.—A fidelity and guaranty company is released from liability upon its policy insuring the integrity of an employee of a parcel delivery concern while foreman of the delivery of parcels for a mercantile firm, where, instead of a daily verification of deliveries by the cashier of the firm as required by the policy, the mere word of such foreman is accepted as to whether the packages intrusted to him have been delivered and paid for.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Butte County directing the issuance of a Writ of Mandate. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Tax-sales and Titles—Judgment and Order Affirmed on authority of Henderson v. Ward, ante, p. 520.</p>

<p>Taxation—Tax-sales and Titles.—Judgment and order affirmed on authority of Henderson v. Ward, ante, p. 520.</p>