Volume 24 — California Appellate Reports

<p>APPEAL from a judgment tif the Superior Court of Butte County and from an order refusing a new trial. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fraud — Actual or Constructive — Attorney Obtaining Money Through False Eepresentation as to Dismissal of Action.— In this action to recover money from an attorney on the ground that he procured it through false representations that a certain action had been dismissed, the findings, while they do not show that he was guilty of actual fraud, show that he was guilty of constructive fraud in that, without fraudulent intent, he did by false representations mislead the plaintiff to her prejudice. Omitting from the complaint all* reference to actual fraud, as to which no findings were made, the remaining allegations of constructive fraud, found by the court to he true, are ample to support the judgment for the plaintiff.</p> <p>Id.—Illegality of Transaction—Whether Defense to Action.— The contention of the defendant in such action that the agreement for the dismissal was illegal and iniquitous will not be considered on his appeal from the judgment if the record does not disclose the illegality.</p> <p>jld.—Maxim—Attorney Pleading Iniquity in Defense of Action.— To the maxim, that “no man shall be allowed to found any claim upon his own iniquity,” should be added, “no lawyer, when sued for money alleged to have been obtained by him through fraudulent ■means, should plead his own iniquity as a defense.”</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. Franklin J. Cole, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Intoxicating Liquors—Saloon Licenses—Interpretation op Ordinances.—Where a town, which has an ordinance fixing saloon licenses at fifty dollars per quarter, payable in advance upon the first day of January and every three months thereafter, adopts an ordinance repealing all conflicting ordinances and fixing such licenses at one thousand dollars per year, payable semi-annually in advance, one-half on January 1st and one-half on July 1st of each year, and providing that the ordinance shall go into effect on August 1st, the two ordinances are to be considered together, and until the 1st day of January following, the licenses are to be collected quarterly in advance as provided in the old ordinance, but subject to the rate prescribed in the new ordinance.</p>

<p>Action to Quiet Title—Reliance by Plaintiff on Strength of Own Title.—In an action to quiet title the plaintiff must rely exclusively on the strength of his own title, not on the weakness of that of his adversary.</p> <p>Id.—Each Party as Actor—Necessity of Cross-complaint.—Each party is an actor in such suit, a cross-complaint being unnecessary, and a decree quieting his title is awarded to the one establishing his case.</p> <p>Tenancy in Common—Presumption of Continuance.—The status of cotenancy, like other conditions, is subject to the presumption that it continues as long as is usual with things of that nature.</p> <p>Id.—Possession of Cotenant—Presumption—How Overcome—Adverse Holding.—The possession of one cotenant is presumed to be the possession of all, and this presumption can be overcome only by showing that the hostile intent of one is clearly manifested and is brought home to all. The presumption is not overcome by a showing merely that one tenant has failed to recognize the rights of his cotenant. To accomplish this result the possession of the tenant must be with the intent to hold adversely, and it must appear that such intent has been indicated by acts calculated to exclude the complainants from all participation as tenants in common.</p> <p>Id.—Taxes—Payment by Cotenant—Strengthening Title.—Since it is the duty of a cotenant to pay the taxes on the common property, he cannot strengthen his title as against his co-owners by permitting the taxes to become delinquent, and afterward redeeming the property.</p> <p>Quieting Title—Adverse Claim by Cotenant—Ouster.—In this action to quiet title, wherein the plaintiff asserts a title by prescription against his cotenants, the evidence fails to show any ouster, or to establish the essentials of adverse possession, upon which to base a prescriptive title.</p> <p>Id.—Pleading—Striking Allegations from Complaint—Harmless Error.—Error in striking allegations from the complaint in an action to quiet title is not prejudicial, if the case is tried upon the theory that the allegations have not been stricken out and all the evidence that could be admitted thereunder is admitted.</p> <p>Id.—Judgment Determining Title—Conclusiveness.—A judgment in an action to determine conflicting claims to real estate that one of the parties has an undivided one-third interest in the property estops him and his successors in interest from asserting title to the two-thirds awarded to other parties by reason of anything occurring anterior to the judgment.</p> <p>Id.—Outlawed Mortgage—Payment as Condition Precedent to Quieting Title.—The rule that the plaintiff in an action to quiet title must pay an outlawed mortgage debt as a condition to having his title quieted against it, has no application to a plaintiff who is not the original mortgagor and does not claim under such mortgage.</p>

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

<p>Evidence—Parol Affecting 'Contract for Sale of Business and Goodwill.—Where the owner of a milk business executed a bill of sale of the vehicles and other tangible property connected therewith, this does not preclude him from proving by parol a separate contemporaneous agreement whereby the buyer agreed also to purchase the goodwill represented by the milk route for an additional sum.</p> <p>Id.—Intention to Put Contract in Writing—Failure to Carry Out. And the fact that the parties intended to reduce such parol agreement for the sale of the goodwill to writing, but failed to do so, does not affect the validity of the agreement nor place it in the light of an incomplete transaction.</p> <p>lb.—Breach of Contract—Accrual of Cause of Action.—If the buyer of the goodwill agreed to give his promissory note for the purchase price, but afterward failed and refused to execute the note by repudiating the obligation which it was to cover, the seller may enforce his demand for the purchase price at once upon such repudiation. It then becomes immaterial whether the note was to have been made payable on demand or within a reasonable time.</p> <p>Ed.—Verdict on Conflicting Evidence—Review on Appeal.—The verdict of the jury on conflicting evidence will not be reviewed on appeal, although a contrary verdict would have been supported by abundant proof. The jury’s verdict as to such matters is final and conclusive.</p>

<p>Criminal Law—Homicide—Instruction as to Involuntary . Manslaughter not Based on Evidence.—Where a watchman, on awakening from sleep, intentionally shot a man whom he saw approaching Mm, and in a prosecution for the homicide sets up the right of self-defense, the court commits a vital error against the rights of the accused in instructing the jury upon the question of involuntary manslaughter, of which crime he is convicted.</p> <p>Id.—Instructions—Necessity op Their Being Applicable to Case in Hand.—The fact that a valid conviction of manslaughter may be had under an indictment for murder does not justify any kind of a charge which a court may give upon that subject, regardless of the character and the theory of the case; instructions must be applicable to the facts and features of the ease in hand.</p> <p>H>.—Involuntary Manslaughter—-How Distinguished prom Murder and Voluntary Manslaughter.—The crime of involuntary manslaughter is entirely distinct from that of murder and voluntary manslaughter. The three crimes possess but one element in common, and that is the fact of the killing. In murder there is, essentially, the element of malice or premeditation and the preconceived intention to kill. In voluntary manslaughter, while the element of malice or premeditation in the taking of life is wanting, the intention to do so is present, as the term “voluntary” necessarily implies. Involuntary manslaughter, as the phrase necessarily imports and as our code defines that crime, is the taking of life in certain unlawful ways without any intention of doing so.</p>

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

<p>Municipal Corporations—Ordinance Requiring Railway to Pave Street—Impairment of Franchise.—A town ordinance which requires a railway company to grade and pave the street along and between its tracks with the same materials and in the same manner as the rest of the street is graded and paved by the municipality, with further requirements as to the foundation and surfacing of the pavement to meet the added strain and stress of traffic along the tracks, does not impair a provision in the franchise of the railway company “that said grantee, his heirs or assigns, shall grade said street and maintain the same in proper repair in the same manner as the remainder of said streets shall be required to be graded or kept by the said town,” especially when the franchise has been granted “subject to all laws or municipal regulations now in force, or that may be hereafter enacted relating to the control - or use, digging in or occupying of the public streets.”</p> <p>Id.—Provision in Franchise for Grading and Maintaining Streets —Interpretation.—Such provision in the franchise, requiring the railway company to grade and maintain its portion of streets like the remainder of the thoroughfare, is not a limitation of the power of the municipality, but rather a limitation upon the power of the railroad company, and any doubt about authority in the premises must be resolved in favor of the municipality.</p> <p>Id.—Purpose of Regulations—Protection of Public.—It must be assumed that such regulations were adopted to ‘promote the safety of the streets and the security of the public.</p> <p>Id.—Regulation of Use of Streets—Power of Municipality.—Such regulations come within the general rule that a municipality may make any reasonable and necessary regulation as to the manner in wfiieh the tracks of a railroad company shall be constructed and the condition in which they shall be maintained.</p> <p>Id.—Manner of Paving by Railway -Company—Power of Municipality to Prescribe.-—Since_ the railway company agreed in its contract to pave along its tracks, and there is no provision in the agreement -as to the manner in which the ties shall be laid, or the concrete foundation placed, or the rails secured to the ties, or what character of rails shall be used, or whether or not paving shall be used, under the power in reference to the streets accorded to the municipal agents, they have full authority to make all necessary and reasonable regulations concerning the same.</p> <p>Id.—Street Railway—Duty to Pave Street—Code Requirement.— Where a franchise is granted to a street railway company under section 498 of the Civil Code, it must plank, macadamize or pave the street, used by its track, between the rails and for two feet on each side thereof, in such manner as the proper municipal authorities may direct, irrespective of whether the terms of the franchise require such paving. *</p>

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

<p>Constitutional Law—Regulation op Loan Brokers—Limitation on Rate op Interest.—The act of 1909, as amended in 1911 (Stats. 1909, p. 969; 1911, p. 978), providing that every person engaged in the business of loaning or advancing money, and taking as security any chattel mortgage, bill of sale, assignment of wages, etc., is a personal property broker, and limiting the interest which he may charge to two per cent a month, but exempting persons who make occasional loans, or who loan upon pledge, or without security, or upon the security of bank books, bank deposits, interests in estates, contracts, or mortgages on real property, is not unconstitutional because in conflict with the requirement that all laws of a general nature shall have a uniform operation, or because it grants to some classes of citizens special privileges and immunities which upon the same terms are not granted to others, or because it conflicts with the provisions of the constitution of the United States prohibiting the various states from making or enforcing laws abridging the privileges or immunities of citizens and depriving persons of property without due process of law.</p> <p>Id.—Unreasonable Rates of Interest—Interpretation of Statutes Forbidding.—Laws enacted to guard against unreasonable rates of interest are laws against oppression, and should be favorably regarded, as they always have been favored by the common law of England.</p> <p>Id. — Money Loaning — Statutory Regulation—Classification of Lenders.—When there comes into existence in a state a class of business, even though it be within a more general class, wherein it is customary and habitual for thosé conducting that business to charge excessive rates of interest and take mortgages upon the personal goods or assignments of the wages of the borrower as security therefor, the legislature may take cognizance of the fact that such business is in existence as a distinct occupation, and may set it apart as a- business subject to regulation peculiar to itself, in order to avoid the wrongs incidental to such business when unregulated.</p>

<p>Damages—Contracts Purporting to Liquidate—Validity op Stipulations.—The rule that where an agreement contains provisions for the performance or nonperformance of several acts of different degrees of importance, and then a certain sum is*stipulated to be paid upon a violation of any or all of such provisions, and the sum will be in some instances too large and in others too small a compensation for the injury thereby occasioned, such sum is to be treated as a penalty, and not as liquidated damages, is modified by sections 1070 and 1671 of the Civil Code, which provide that every contract by which the amount of damage to be paid for a breach of an obligation is determined in anticipation thereof is to that extent void, except that the parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.</p> <p>Id.—Sections 1670 and 1671 op the Civil .Code—Presumption as to Which is Applicable.—The rule of section 1670 of the Civil Code that agreements purporting to liquidate damages are void, is presumed to apply in all cases, unless the party seeking to recover under the agreement shows by averment and proof that his ease comes under the exception in section 1671, that parties to a contract may stipulate the amount of damages for a breach thereof, when it would be impracticable or extremely difficult to fix the actual damage.</p> <p>Id.—Action on Bond—Liquidated Damages—Sufficiency of Complaint.—In an action on a bond given to secure the performance of a contract to supply laborers to harvest a crop of olives, an allegation in the complaint “that it would be and was and is impracticable or extremely difficult to fix the actual damages suffered by the plaintiff by reason of said breach,” is sufficient to bring the case within the rule of section 1671 of the Civil Code, providing that the parties to a contract may' stipulate the measure of damages for a breach thereof when it would be impracticable or extremely difficult to fix the actual damage.</p> <p>Id.—Invalid Portion of Contract—Rejection as Surplusage—Sufficiency of Complaint.—Where a provision in a contract to furnish laborers to harvest an olive crop, which fixes the damages in case of a breach, may, if invalid, be rejected as surplusage, and the remainder of the contract, and the bond given to secure its performance, be enforced, a complaint in an action on the bond which alleges the making of the contract, the giving of the bond, a breach of its covenants and resulting damages, states a cause of action for actual damages, regardlesss of the invalidity of the provision purporting to liquidate damages.</p> <p>Id.—Breach or Covenant—Pleading Notice to Surety.—An allegation in such a complaint that the plaintiff gave due notice to the defendant of the breach of the contract, as provided in the bond, is sufficient, under section 457 of the Code of Civil Procedure, without alleging the facts as to the giving of the notice.</p> <p>Id.—Notice to Surety—Promissory Warranty.—The provision of the bond requiring notice of the breach of the contract to be given to the surety by the plaintiff was not a promissory warranty.</p>

<p>APPEAL from a judgment of the Superior Court of San Mat'eo County and from an order refusing a new trial. Geo. H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Blank Indorsement of Stock—Pledge by Holder for Improper Purpose—Eights of Pledgee.—Where certificates of stock are indorsed in blank to a broker to sell, but he, acting wrongfully, attaches them to his draft drawn on a third person and obtains credit thereon at a bank where he is a depositor, the bank may, upon the dishonor of the draft, reimburse itself by selling the stock, if it had no notice of the ownership other than that presumed from the blank indorsement of the stock.</p> <p>Ib.—Sale of Stock by Pledgee Bank—Action for •Conversion— Pleading and Proof.—In this action against the bank for alleged conversion on account of such sale, want of notice of any claim or interest in the stock by any other person than the pledgor is sufficiently set up in an answer alleging the agreement and transaction which included the giving of the credit, and further averring that in the transaction the defendant understood and believed the pledgor was the absolute owner of the stock; and the facts thus alleged are substantiated by the evidence.</p> <p>Id.—Obligation of Depositor to Bank—Extinction by Deposit— Bight of Setoff.—The fact that on the day following the date upon which the draft and the stock were deposited and credit given, an additional sum of money was deposited with the bank by the pledgor, which would have been sufficient, if so applied, to discharge the amount of the draft credit, did not operate to extinguish the obligation of the pledgor thereon. The bank had the right at any time to offset any matured indebtedness owing by him to it against Ms credit.</p>

<p>Damages for Personal Injuries—Whether Verdict so Excessive as to Suggest Prejudice or Passion*—A verdict for fifteen thousand seven hundred and fifty dollars for personal injuries sustained by a -woman twenty-three years of age and consisting of a broken leg, several broken ribs, a wrenched back, and injury to the nerves resulting in sensory paralysis of one arm, while' large, cannot be said to be so excessive as to justify the conclusion that it was awarded under the influence of passion or prejudice.</p> <p>Id.—Remitting Part of VerdIct—Whether Indicates Prejudice or Passion.—In such case, where the trial court orders a new trial unless the plaintiff, within a time limited, files a stipulation remitting from the judgment a designated sum, and the plaintiff files such stipulation, and the new trial is accordingly refused, this does not indicate that the verdict was suggested by passion and prejudice and therefore should be set aside by the appellate court.</p> <p>Id.—Appeal—Review of Verdict for Personal Injuries as Excessive.—A verdict in a personal injury case will not be disturbed on appeal as excessive, unless the amount of the damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of cool and dispassionate disere, tion of the jury.</p>

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

<p>Mortgage op Crop—Transaction Between Mortgagor and Mortgagee Whether Fraudulent as to Creditors op Mortgagor.—In this action wherein an attaching creditor of a mortgagor of a crop of beans attacks as fraudulent an assignment by the mortgagor to the mortgagee of his interest in the crop in consideration of the mortgagor releasing a mortgage on personal property of the wife of the mortgagor, and also paying the expenses of-pending litigation involving the mortgage, the evidence is sufficient to sustain the ■finding of the trial court that the assignment was not made with intent to defraud the attaching creditor, and that it was supported by a sufficient consideration.</p>

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

<p>Appeal—Judgment Sustaining Demurrer—Reasons Assigned.—A defendant cannot be deprived of the right to be heard on appeal upon any or all of the grounds of his demurrer, merely because the court below designated a single ground as the reason for its order sustaining the demurrer; if his demurrer is well taken upon any ground, the order sustaining it will be affirmed regardless of the reasons assigned therefor by the court below.</p> <p>lb.—Corporation—Creation op New Company—Transfer of Assets— Creditors of Former Corporation.—The identity of a corporation is not destroyed nor are its legal obligations obliterated by the mere fact of reincorporation under the same or a different name; and a transfer of the corporate assets from the old to the new corporation will, when warranted by the pleadings and proof, be considered, under the familiar principle applicable to fraudulent conveyances, as having been done to hinder, delay, and defraud the creditors of the old corporation.</p> <p>Id.-—-Pleading—When Does not Show Creation of New Corporation and Transfer of Assets to It.—But no such situation is presented by the complaint in this action to recover from a domestic corporation money alleged to have been paid to a foreign corporation, based on the theory that the foreign corporation organized the domestic corporation to take over the interest of the former theretofore conducted in the state by an individual, and turned .over to the domestic corporation all of its business and assets previously in charge of such agent. The pleaded facts and circumstances show merely the creation of a corporate agency rather than a merger of corporate identity.</p> <p>Ed.—Merger of Corporations—Identity of Names.—The mere fact that separately created and existing corporations bear the same name and deal in the same commodities will not suffice, even if the officers and stockholders of each corporation are the same, to create a merger of corporate capacity, identity, and liability.</p>

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

<p>Negligence—Automobile Collision — Action fob Damages—Challenge of Juror.—In this action to recover for personal injuries suffered by the driver of a delivery wagon through a collision with an automobile, even if it were necessary to concede that a conflict existed in the testimony addressed to the challenge of a certain juror for implied bias, and the court abused its discretion in denying the challenge, still the defendant is in no position to avail himself of the effect of such error, since it does not appear that, having exhausted the remainder of his four peremptory challenges after thus challenging the juror, he had occasion or desire to use an additional peremptory challenge.</p> <p>Id.—Complaint in Action for Personal Injuries—Necessity of -Special Pleading.—The plaintiff may testify, at the trial a little over a year after the accident, and under the general ad damnum ' clause of the complaint, that he has not entirely recovered from his injuries, as conducing to prove the pecuniary loss suffered by Mm, without a special plea that the injuries were permanent. The future and permanent effect of injuries directly or necessarily resulting to the plaintiff from the negligence of the defendant need not be specially pleaded in order to warrant proof thereof or recovery therefor. It is only damages which are not the necessary result of the injuries which must be specially pleaded.</p> <p>Id.—Elements of Damages for Personal Injuries-—-Manner of Pleading.-—There are numerous elements which may enter into the whole of the damage which necessarily results from the infliction of bodily injuries. Among these is that of physical or mental suffering wMch the injured party has endured and will endure from his injuries, and it is not necessary in such a case to state separately the amount of the loss that is caused by each element of damage. A general statement of the whole amount of damage will suffiee when all the damage claimed is the natural and ordinary effect of the injuries alleged.</p> <p>Id.—Speed of Automobile—Testimony of Witness Regarding.—In an action by a driver of a delivery wagon to recover for personal injuries suffered through collision with an automobile, it is proper for a witness, in testifying to the speed of the automobile at the time of the accident, to state that he has never seen automobiles driven by others in that vicinity go any faster than the defendant was traveling at the time of the collision, and that he has seen other automobiles go at a pretty fast rate of speed.</p> <p>Id.—Admissions of Defendant—Speed of Automobile—Absence of Warning.—In such action admissions of the defendant, made after the accident, that he was “going over the speed limit at the time of the collision,” and that he did not “blow his horn" or give any other warning of his approach, are admissible.</p> <p>Id,—Speed of Automobile—Violation of Ordinance—Negligence Per Se.—It is proper to instruct the jury in such case that the driving of an automobile over the streets of a city at a speed in excess of that limited by ordinance is of itself negligence, or negligence as a matter of law, or negligence per se, which are equivalent expressions.</p> <p>Id.—Speed Ordinance—Necessity of Pleading.—It is not necessary for the plaintiff to specially plead such ordinance, but he may make proof of its violation by the defendant in support of the general allegations of negligence contained in his complaint.</p> <p>Id.—-Proximate Cause—Conflicting Evidence—Review on Appeal.— Where the evidence is in sharp conflict upon the question whether the defendant’s negligence was the sole proximate cause of the damage, or whether the plaintiff himself, by the manner in which he was driving his wagon, was so culpably careless as to have been the direct cause thereof, a reviewing court cannot say on which side the truth of the matter is.</p> <p>Id.—Evidence of Negligence — Sufficiency to Sustain Verdict.— There was sufficient testimony presented by the plaintiff, in this case, to justly warrant the jury in finding that the collision was precipitated wholly through the negligence of the defendant, and the appellate court is not justified in interfering with this finding, notwithstanding that the defendant’s testimony, corroborated to some extent by that of other witnesses called by him, would amply have sustained the conclusion that the defendant was not, at the time of the collision, driving his machine at an excessive rate of speed, measured either by the terms of the ordinance or otherwise, that the plaintiff carelessly drove in front of the machine, and that but for such carelessness the accident would not have occurred.</p> <p>Id.—Verdict for Plaintiff—Whether Excessive.—The verdict of seven hundred and fifty dollars for the plaintiff in this ease is not so excessive as irresistibly to lead to the conclusion that the verdict was the result of passion or prejudice, although his injuries were not shown to be of a very serious nature.</p> <p>Id.-—Measure of Damages—Review on Appeal.—In actions for personal torts the law does not attempt to fix any precise rules for the admeasurement of damages, but from the necessity of the ease leaves their assessment to the good sense and unbiased judgment of the jury; and appellate courts will not interfere in such cases, unless the amount awarded is so grossly excessive as to shock the moral sense and raise a reasonable presumption that the jury, in reaching their verdict, were actuated by passion or prejudice.</p> <p>Id.—Loss of Wages—Whether Sole Criterion of Damages.—Compensation for personal injuries is not dependent upon the cutting off or diminution of wages by reason of the injury, nor is the amount thereof measured by the amount of income or wages lost; but the jury must take into consideration all the elements of damages shown by the proofs and apply their best and honest judgment in the ascertainment of what, under all the evidence, would be just compensatory relief.</p>

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

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

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

<p>Eminent Domain—Condemnation of Land fob Eailboad Depot—Sufficiency of Complaint.-—In. this action to condemn land for a railroad depot the complaint meets the requirement of section 1244 of the Code of Civil Procedure providing what the complaint in eminent domain must contain, and it is not demurrable on the grounds that it fails to allege that other land owned by the railroad company is inadequate for a depot, or that the road is in operation, or why the land is necessary, or that any necessity exists for any depot at the place, or that the plaintiff has a franchise, over the streets of the municipality, or that the location of the depot is such as to produce the least private injury.</p> <p>Id.—Amount of Land Necessary—Expert Testimony.—In such action expert testimony is admissible to determine the amount of land requisite for depot purposes.</p> <p>Id.—-Size and Location of Lot for Depot—Discretion of Eailboad Company.—In the determination of the size and location of lots for depots, considerable discretion must be accorded to railroad corporations serving a public purpose, subject to the qualification that their action must not be captious or arbitrary nor unduly invade the private right of property.</p> <p>Id.—Franchise Over Streets—Whether Essential Before Condemnation Proceedings.—It is unnecessary in such action thac the railroad company should have first obtained a franchise over the streets of the municipality wherein the land sought to be condemned is situated.</p> <p>Id.—Amount of Property Necessary to Condemn-—Evidence of Size of Other Depots.—It is proper in such action to exclude evidence offered by the defendant of the size and character of buildings of other railroads used for depots, in the absence of any offer to show that the circumstances and conditions surrounding such buildings are similar to those involved in the case under consideration and that the areas of such buildings are sufficient for the purposes of such railroads.</p> <p>Id.—Evidence of Size and Location of Streets—Inadmissibility of Map.—In such action the defendants cannot show the general size and location of the principal streets of the municipality, if material, by introducing a map as to which the city engineer testifies that he did not make it and that it is inaccurate.</p> <p>Id.—Striking Out Answer of Witness—Harmless Error.—It is improper to grant a motion to strike out an answer of a witness when no ejection has been made to the question; but the error is harmless if thereafter the witness makes substantially the same statement.</p> <p>Id.—Value of Improvements on Condemned Property as Separate from Land.—In an action to condemn property for a railroad depot evidence of the market value of the improvements on the property sought to be condemned, separate from the land, is properly excluded; the evidence must go to the market value of the property as a whole.</p> <p>Id.—Expert Witness—Competency to Testify as to Value of Property.—A witness who has resided forty years in the municipality wherein the land sought to be condemned is situated, and who has been engaged in the banking business for fifty years, is competent to testify as to the market value of the property, although he has not examined the interior of a building thereon.</p> <p>Id.—Special Issues—Refusal of Court to Submit to Jury.—In refusing to submit to the jury certain special issues propounded by the defendants, the court does not abuse its discretion under section 625 of the Code of Civil Procedure as amended in 1905, especially when some of the questions are not within the issues, some involve a question of law, and the others are covered by the questions which are submitted.</p> <p>Id.—Damages for Taking Property—Consideration of Future Growth of Community.—In an action by a railroad company to condemn property for a depot, an instruction authorizing the jury to take into consideration future demands “that may fairly be anticipated on account of the future growth of the surrounding community,” is proper; it being alleged that the property is necessary for the purposes of the plaintiff, and it being a fair inferenee from the testimony that the property in question is situated in a prosperous and growing city.</p> <p>Id.—Value of Property—Amount Which Plaintiff oan Afford to Pay.—A suggestion in an instruction to the jury in such action that an opinion as to the value of the property sought to be condemned cannot be based upon what the plaintiff can afford to pay for the property, is not prejudicial to the defendant.</p> <p>Id.—Verdict—Sufficiency as Showing Taking for Public Use.—The verdict of the jury in such case is not defective in finding that the taking is necessary for the use of the plaintiff instead of for a public use, where it is found that the taking is necessary for the use of plaintiff for a permanent freight and passenger building in connection with the operation and maintenance of the railroad described in the complaint.</p>

<p>Criminal Law—Juvenile Court Practice—Necessity of Indictment or Information.—The prosecution, in the superior court sitting as a juvenile court, of a person charged with causing and contributing to the dependency, of a female under the age of twenty-one years, must either be by indictment, or by information after a preliminary examination of the charge before and commitment by a magistrate; such prosecution cannot be simply by a verified complaint filed in the superior court.</p> <p>Id.—Verified Complaint—Insufficiency to Confer Jurisdiction.— Section 682 of the Penal Code, subdivision 4, cannot be construed as authorizing the prosecution and trial of such offenses- on a-verified complaint filed in the superior court; to give such interpretation to that section would render it repugnant to subdivision 3 of section 25, article-IV of the constitution, prohibiting the legislature from passing special laws regulating the practice of courts of justice, as well as render it obnoxious to subdivision 33 of such section prohibiting the passage of a special law where a general law can be made applicable.</p> <p>Id.—Superior Court—Status Under Juvenile Court Law.—The legislature, by the Juvenile Court Law, does not pretend to set up a new court, or one distinct from that of the superior court; the act merely confers upon the superior courts jurisdiction of certain offenses created thereby.</p> <p>Id.—Prosecution of Misdemeanors in Superior Court—Power of Legislature to Prescribe Procedure.—While it is true that it is within the constitutional power of the legislature to confer upon th'e police or justice’s court the jurisdiction to try high grade, or what is commonly termed indictable, misdemeanors, in which case undoubtedly the procedure peculiar to those courts would be appropriate, nowhere has it ever been held that, where jurisdiction is conferred upon the superior courts of a class of misdemeanors, the legislature may adopt for the prosecution of such cases a procedure materially difEerent from that prescribed by the constitution and the statute for the prosecution of criminal cases in such courts.</p>

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

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

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

<p>Criminal Law—Rape—Commission upon Wipe—Husband as Abettor. Under section 3.1 of the Penal Code a husband may, as aider and abettor of the crime, be prosecuted for rape committed upon bis wife.</p> <p>Id.—Prosecution for Rape—Wife as Witness Against Husband.—In such prosecution the wife is a competent witness against the husband, the crime having been committed after their marriage.</p>

<p>Insurance Broker—Procuring Policies for Unauthorized Companies—Percentage Due State—Credit for ¡Return Premiums.— A broker licensed to procure policies of insurance on risks for insurance companies not authorized to transact business within the state, is entitled, under section 596 of the Political Code, in computing the percentage due the state, to credit for return premiums on any insurance procured and placed by him, regardless of whether or not the premium was actually returned to the insured' within the calendar year in which the business was written.</p> <p>In.—Statutory Construction—Purpose of Enactment.;—In searching for and declaring the legislative intent of an ambiguous statute, courts are not restricted to that construction which will give only a literal effect to every word and phrase appearing by the letter of the law, but may rightfully resort to a consideration of the purpose to he accomplished by the enactment of the statute. Therefore when a suggested construction of a statute in any given ease necessarily involves a decided departure from what may be fairly said to be the plain purpose of the enactment, such construction will not be adopted to the exclusion of a possible, plausible interpretation which will promote and put in operation the legislative intent.</p> <p>Id.—¡Reason and Spirit op Act—Avoiding Interpretation Inconsistent With.—In the presence of a patent ambiguity courts must, in construing a statute, reject an interpretation which, if followed, would lead to a conclusion clearly inconsistent in its consequences with the reason and spirit' of the statute.</p>

<p>Appeal—Order Beeusing New Trial—Bight to Determination op Gasp—Effect of Irregularity in Procedure to Obtain New Trial.—An appeal is given as a matter of right from an order granting or denying a motion for a new trial; and, when properly taken and perfected, the appellate court has jurisdiction to and must hear and determine the same upon its merits, notwithstanding an alleged irregularity or defect in the procedure prescribed as a preliminary to the presentation of a motion for a new trial.</p> <p>Id.—Notice of New Trial—Failure to Give as Ground for Dismissal of Appeal.—The failure to give notice of intention to move for a new trial is not ground for dismissing an appeal from the order denying a now trial, although such failure is sufficient reason for the refusal by the lower court of a new trial, and constitutes ground for affirmance by the appellate court when the appeal is heard on its merits.</p>

<p>Physicians and Surgeons—Power of Legislature to Begulate Practice—Prescribing Qualifications of Practitioners.—The legislature is clothed with the power to regulate the practice of medicine and surgery, and in the exercise of that power may protect the people from the imposition of quacks and charlatans, and insure proper qualifications of those seeking to administer aid to the sick and infirm. With that end in view the legislature may prescribe what are and what are not proper qualifications for those to possess who would engage in this calling, and in the determination of this question it may exact a certain degree of skill and learning upon which the community may rely. When it has done this its action is binding upon the courts, provided its power has been constitutionally exercised.</p> <p>Id.—Practitioners of Special Branch of Medicine—Issuance of Certificates—Beasonableness of Classification—Statute of 1911.—The provision in the Medical Practice Act (Stats. 1911, p. 1437) that the medical examiners may issue a certificate to any person who has practiced a special branch of medicine and surgery for a period of thirty-five years, fifteen years of which time shall have been within this state, upon the filing of an affidavit, etc., showing such fact, and the passing of a successful examination, is not unconstitutional as making an unreasonable classification in that it is not based upon any test of ability but proceeds from the commission of a number of misdemeanors, because one, before practicing any branch of medicine or surgery within this state for fifteen years without a certificate, must necessarily have been violating the medical acts which throughout that period have required such certificate, but it announces a test of qualification whereby an individual may gain a right to practice a special branch of medicine and surgery, just as the preceding paragraphs in the statute announce the test of qualification whereby an individual may gain the right to practice medicine and surgery generally within the state.</p> <p>Id.—Special Branch of Medical Practice—What Constitutes—Determination of Question.—Whether the “treatment of cancers, tumors, malignant growths and cutaneous diseases” constitutes a “special branch of medicine and surgery” within the meaning of such act is a matter for determintion by the trial court under competent evidence. An appellate court cannot judicially say that those disorders are not so correlated that they cannot be classed as subjects for a special branch of medical and surgical treatment.</p>

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

<p>APPEAL from a judgment of the Superior Court of Calaveras County and from an order refusing a new trial. P. V. Wood, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

Humboldt County and from an order refusing a new trial. Clifton H: Conniek, Judge. The facts are stated in the opinion of the court.

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

<p>APPEAL from an order of the Superior Court of Placer County refusing attorney fees to the defendant in eminent domain proceedings. N. J. Amot, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment the Superior Court of Alameda County. Wm. IT. Waste, Everett J. Brown, and Wm. S. Wells, Judges.</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>Statute of Frauds—Estoppel to Urge After Part Performance of Oral Agreement.—Where it is clearly and unequivocally made to appear that there has been a performance by one party to an oral agreement required by statute to be in writing, under such circumstances as to make it inequitable to allow the other party receiving the benefit thereof to repudiate the contract on the ground that it is not in writing, he is estopped from doing so.</p> <p>Id.—Lease—Action for Bent—Estoppel op Tenant to Urge Statute OP Frauds.—Where a tenant enters into and holds possession of land under a lease which is invalid under the statute of frauds because not signed by him, he is estopped to aver its invalidity in an action on the lease for rent.</p> <p>Id.—Action por Bent—Amendment op Complaint so as to Becover por Use and Occupation.—Where the complaint in an action for rent sets out a lease and alleges that the defendant took possession thereunder, but the facts developed on the trial show that the defendant did not take possession by virtue of the lease, the plaintiff should be permitted to amend the complaint and thereby be afforded an opportunity to recover for use and occupation. Such an amendment does not introduce an entirely new and different cause of action.</p>

<p>Specific Performance of Contract to Sell Realty—Sufficiency of ■Complaint—Necessity of Alleging Written Contract.—In an action by the vendee of a one-sixth interest in a mine for specific performance of the contract of sale, the absence in the complaint of an allegation that the contract is in writing is not fatal; it will be presumed, if necessary, that the contract is written.</p> <p>Id.—Statute of Frauds—Part Performance of Oral Contract.—A parol agreement to purchase an interest in a mine is taken out of the operation of the statute of frauds by the vendee paying part of the purchase price, taking possession of the mine, and performing labor and making improvements therein.</p> <p>Id.—Subsequent Sale by Vendor—Remedy of Vendee.—If the vendor, after making such parol agreement, sells the property to a third person and promises to account therefor to the vendee, the vendee, in his suit for specific performance, may recover the amount received by the vendor on account of such sale. He is not required to bring a separate action to recover such money.</p> <p>Id.—Parol Contract to Convey—Part Performance—Specific Performance—Review on Appeal.—Where there has been a part performance of an oral contract to purchase an interest in a mine, and the trial court, in an action by the vendee for specific performance, has decreed the complete execution of the agreement, an appellate court should not interfere unless it appears clearly that the decision is inequitable and unjust. In the case at bar it cannot be said that the court below was not entirely warranted in exacting of the defendant a compliance with his contract.</p> <p>Id.—.Contract by Cotenant to Convey—Necessity of Exclusive Possession.—Where a tenant in common in a mine makes a parol agreement to convey his undivided interest, it is not necessary that he should deliver exclusive possession of the mine to the vendee in order to render possession an effective circumstance in decreeing specific performance in favor of the vendee. It is enough that the vendee is substituted in the use and occupancy of the property for the vendor.</p> <p>Id.—-Specific Performance—Possession of Vendee—Rule That It must be Exclusive.—The rule that under an oral contract to purchase realty the vendee must he in possession of the property in order to have specific performance, requires no more than that his possession shall be exclusive of the possession of the vendor.</p> <p>Id.—Defense to Action—Sale by "Vendor to Third Person.—In an action by a vendee for specific performance of a contract to sell an interest in a mine, it is no defense that the vendor, after making the contract with the vendee, sold the property to third persons, if he has not thereby completely divested himself of the legal title.</p> <p>Id.—Novation—Insufficiency of Evidence to Show Substitution of Agreement.—The evidence in this action by a vendee for specific performance is sufficient to sustain the finding of the trial court that the contract upon which the plaintiff relied was not superseded by another agreement, and was not intended to constitute a novation.</p> <p>Id.—Pleading Novation—New Matter of Defense.—Novation is new matter of defense, in the nature of release or discharge, which must be specially pleaded.</p>

<p>APPLICATION for Writ of Mandate to be directed to the Superior Court of Los Angeles County and Fred H. Taft judge thereof.</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. T. L. Lewis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Partnership—What Constitutes—Agreement to Conduct Grocery Business.—An agreement whereby two persons bind themselves “to become copartners under the firm name of Donleavey & Johnston” for the purpose of conducting a grocery business one year, one party to furnish the money, lease the premises in his name, purchase the merchandise, take the title to all property in his name, dictate all purchases of a greater value than twenty dollars, and be entitled to three-fourths of the profits, the other party to have one-fourth of the profits, and the two to give their best efforts to the advantage of the business, and each to have eighty-five dollars monthly from the profits, constitutes a partnership.</p> <p>Id.—Name of Concern—Importance as Showing Existence of Partnership.—While the question whether or not a partnership exists is to be determined from the nature of the relation agreed upon, rather than the name which the parties give to it, some weight must be allowed to the language of the parties themselves.</p> <p>Id.—Goodwill of Business—Nature and Transfer.—The goodwill of a business is the expectation of continued public patronage. It is property transferable like any other property, and its loss may be the subject of damages.</p> <p>Ib.—Termination of Partnership—Bight to Goodwill.—Where a partnership agreement provides that one of the parties is to continue the business in his own name after the expiration of the partnership term, if the other does not then exercise his option to remain in the firm, the former is entitled to the goodwill of the business on the failure of the latter to exercise such option.</p> <p>Id.—Purchase by Partner of Premises Occupied by Firm—Title in Trust fob Partnership.—Where one partner secretly makes a purchase of the premises occupied by the firm, while the other partner, with his concurrence, is negotiating with the owner to obtain the property for the use of the firm, the purchaser will be declared a trustee for the firm.</p> <p>Id.—Trust Belation Between 'Partners.-—The partnership relation is one of confidence and trust, and every partner is bound to act in the highest good faith toward his copartners and may not obtain any advantage over them in the partnership affairs by misrepresentation, concealment, or adverse pressure of any kind.</p> <p>Id.—Purchase of Premises by Partner—Ouster of Copartner—Damages.—Where two partners are conducting a grocery business on leased premises, and one of them, acting clandestinely, joins with third persons in purchasing the premises and there establishing a grocery business, the ousted partner may maintain an action to recover damages for the loss of the goodwill of the business.</p>

<p>Garnishment—Appeal by Garnishee prom Order Directing Payment op Money—Eight op Garnisher to Recover Damages Therefor. Where a garnishee, instead of complying with an order of court to pay over to the garnisher the amount of the debt, takes an appeal from such order, and, upon the order being affirmed by the court of appeals, unsuccessfully attempts to obtain a rehearing in the supreme court, the garnisher cannot maintain'an action against the garnishee for alleged damages due to the appeal.</p> <p>Id.—Damages prom Appeal—Damnum Absque Injuria.—The garnishee, in appealing from the order, merely exercised a right expressly conferred by law, and the loss suffered by the garnisher as 'a consequence of the appeal comes within the doctrine of damnum absque injuria.</p> <p>Id.—Maxim—Remedy for Every Wrong.—The maxim, “There is no wrong without a remedy,” can have no application to any but legal wrongs or those wrongs for which the law authorizes or sanctions redress.</p>

<p>Pish and Game Laws—License fob Pishing—Power of Legislature to E'xact.—The act of the legislature (Stats. 1913, p. 985) imposing a license tax of ten dollars a year for the privilege of fishing for profit in the waters of the state, is valid, and does not violate section 25 of article I of the constitution which grants to the people of the state the right to enier upon the lands of the state for the purpose of fishing in the waters thereon.</p> <p>Id.—Protection of Pish—Imposition of License.—The imposition of such license has a tendency to protect fish and prevent their extermination, and section 25% of article IV of the constitution expressly authorizes the legislature to enact laws for that purpose. id.—Constitution—Purpose of Section 25 of Article I.—The principal object of section 25 of article I of the constitution is to reserve to the people the right to fish upon the public lands of the state and to require that grants of land by the state should not be made “without reserving to the people the absolute right to fish thereupon.”</p>

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

MOTION to dismiss appeal from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge. The facts are stated in the opinion of the court.

<p>Municipal Bonds—Irregularities in Issuance—Curative Statute.— Irregularities in the proceedings taken in 1912 by the city of Venice in the incurring of an indebtedness and the issuance and sale of bonds for municipal purposes, are cured by the Validating Act of April 4, 1913, entitled "An act to validate municipal bonds, and to provide for the levy and collection of taxes to pay the principal and interest on such bonds.” (Stats. 1913, P- 14.)</p> <p>Id.—Validation of Past Transactions—Power of Legislature.— The legislature may validate 'past transactions when it could in advance, without contravening constitutional provisions, have authorized the proceedings taken as a precedent condition to the exercise of municipal power in issuing bonds; in other words, as to all steps which the legislature could, in the first instance, have dispensed with, it may by retraoetive statute declare the taking thereof unnecessary.</p> <p>Id.—Bond Election—Sufficiency of Notice.—A notice of an election to authorize a bond issue which recites that the election is called to vote .bonds in the sum of twenty thousand dollars for the construction of an outfall sewer, and which declares that the estimated cost of the improvement is twenty thousand dollars, is not insufficient in failing to state the amount of the proposed indebtedness as required by section 18 of article XI of the constitution.</p> <p>Id.—Antedating Bonds—Effect on' Validity.—Municipal bonds are not rendered illegal by being dated as of a date prior to the election authorizing them. Under the act of April 4, 1913-, validating municipal bonds (Stats. 1913, p. 14), the date of the bonds is immaterial, the only restriction being that it shall not extend over a period of forty years.</p> <p>Id.—‘City Treasurer—Refusal to Sign Bonds—Insufficient Reason. A city treasurer cannot justify his refusal to sign municipal bonds upon the ground that the board of trustees may violate their duty by selling the bonds for less than par.</p>

<p>Municipal Corporations—Erection or Removal of Shake Houses— Failure to Obtain Permit—Sufficiency of Complaint.—The ordinance of the city of Tropico regulating the erection and removal of buildings prohibits the erection or removal of shake houses without a permit, regardless of the value thereof. Hence a complaint charging the violation of the ordinance in moving and constructing or attempting to move and construct a shake house within the limits of the municipality without first .procuring a permit from the city trustees, does not fail to charge a public offense in not alleging that the cost of the removal or construction exceeded the sum of twenty dollars.</p> <p>Id.—Charging Oppense in Disjunctive—Raising Objection on Certiorari.—An objection to such complaint that it is uncertain in that it charges the offense in the disjunctive cannot be raised in certiorari proceedings.</p> <p>Ib.—Title op Ordinance—Expression op Dual Purpose.—A dual purpose expressed in the title of such ordinance contravenes no charter provision, and the constitutional provision that acts of the legislature shall embrace but one subject has no application to municipal ordinances.</p> <p>Id.—Reasonableness op Ordinance—Power op Board to Repuse Permit.—In the absence of an attack upon the reasonableness of the ordinance, a contention that it enables the board of trustees to prevent altogether the erection of certain structures by refusing to grant permits therefor is not sustainable; neither is a contention that since such structures may be ereeted only in ease a permit therefor is obtained from the board, which in the exercise of its discretion it may, unguided by any fixed rule, grant or refuse, the ordinance empowers the board to act arbitrarily, favor one individual as against another, and without cause refuse to grant such permit.</p> <p>Id.—Violation op Ordinance—Conviction—Certiorari Not Proper Method to Obtain Review.—Where a person has been convicted in the recorder’s court of violating sueh ordinance, certiorari will not lie to review the judgment; his remedy is by appeal to the superior court.</p>

<p>Execution—Motion to Set Aside Sale—Attack upon Judgment.—A judgment against a corporation, which is alleged to have been obtained through the collusion of the president of the company with the plaintiff in the action, and which at most is only voidable, cannot -be attacked in proceedings to set aside the execution sale.</p> <p>Id.—Motion to Set Aside Execution—Grounds upon Which may be Based—Voidable Judgment.—Upon a motion to set aside an execution, the voidable judgment upon which the execution has been issued cannot be assailed; for the law has provided a number of specific and appropriate remedies against voidable judgments of which this is not one, and has also provided that the grounds upon which executions issued upon voidable judgments and sales thereunder may be attacked, are those infirmities which arise after the judgment and out of the issuance of the writ and its attempted enforcement.</p> <p>Id.—Petition to Set Aside Execution Sales—Sufficiency of Allegations.—A petition for an order to set aside certain execution sales, which makes no specific attack upon the regularity in form of the several writs but avers generally and upon information and belief that the sales made thereunder “were not made or held pursuant to any of the provisions of section 694 of the Code of Civil Procedure,” states a mere conclusion of the pleader, and is insufficient to put in issue any specific infirmity in the writ itself or in the procedure attending its execution and the sales thereunder.</p> <p>Id.—Purchaser at Execution Sales—President of Defendant Corporation.—An allegation in such petition that the president of the defendant corporation purchased the properties at such execution sales, does not warrant the setting aside of the sales.</p>

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

<p>Corporations—Issuance of Bonds—Irregularity in Calling Meetings—Estoppel to Deny Validity of Bonds.—Where a corporation has accepted and appropriated to its own use the full value. of bonds which it has issued, it is estopped to attack the validity of the bonds on the ground that notices of meetings of the directors, at which the bonds were authorized, were not properly given.</p> <p>Id.—Action on Bonds—Necessity of Pleading Estoppel.—In an action against the corporation to foreclose the trust-deed executed to secure the payment of such bonds, wherein the defense of want of authorization is interposed, the plaintiff may, without having pleaded such estoppel, introduce evidence to establish it; and the fact that at the trial the plaintiff, after establishing her prima facie case, introduces the other evidence in anticipation of the defense of want of authority, does not affect the merits of the ease, nor change the rule applicable with respect to pleading.</p> <p>Id.—Irregularity in Bond Issue—Notice to Agent—Whether Imputable to Principal.—The fact that a director of the corporation was the agent of the bondholder in purchasing the bonds, and hence had notice of irregularities in their issuance, did not impart notice to the bondholder nor preclude her from relying upon such estoppel; notice to him having come in his capacity as director rather than as agent.</p> <p>Id.—Estoppel as to Bonds—Whether Extends to Mortgage Given to Secure Them.—The estoppel in this ease of the corporation to question the validity of the bonds extends to the trust-deed or mortgage executed to secure their payment; the bonds containing full recitals as to the execution of the trust-deed and the several instruments being all parts of one transaction.</p> <p>Id.—Trust-deed—Failure of Trustee to Act—Durr of Court to Put Itself in His Place.—If such trust-deed provides that on default in payment of interest the principal should become due at the election of the trustee, and that, upon the holder of one-fourth of the bonds tendering satisfactory indemnity, the trustee shall take such action as the bondholder requests, the rights of the bondholder will not be allowed to fail by reason of the omission or refusal of the trustee to perform his duty, but the court will put itself in the place of the trustee, and, on .demand of the bondholder, exercise its power to enforce those rights. The situation is one calling for the application of the maxim: “That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.”</p> <p>Id.—Right of Bondholders to Enforce Trust-deed Where Trustee Refuses to Proceed.—A provision in the trust-deed that no “bondholder or bondholders- shall take any proceedings to enforce the provisions hereof, until he shall have requested the trustee in writing to take proceedings and shall have tendered to the trustee satisfactory indemnity as hereinbefore provided, and the trustee shall have refused or neglected after the lapse of a reasonable time to take such proceedings,” is equivalent to a statement that after such a request and refusal the bondholders may proceed in some appropriate manner to enforce the provisions of the deed.</p> <p>Id.—Meeting of Directors—Notice—Necessity and Man-ner of Giving.—Section 320 of the Civil Code declares that when no provision is made in the by-laws of a corporation 'for regular meetings of the directors, all meetings must be called by special notice in writing, to be given to each director. Where the by-laws name the day for regular meetings, but do not name the hour of the day, notice must be given. \</p> <p>Id.—Interested Director—Whether may Participate in Action of Board or be Counted as Part of Quorum.—A director cannot participate in an action of the board of directors of a corporation authorizing a contract or the performance of an act for his own benefit, nor be counted as part of a quorum for the purposes of any such action by the board.</p> <p>Id.—Notice of Directors’ Meeting—Quorum—Sufficiency of Evidence to Show.—In this action to enforce a deed of trust exeeuted by a corporation to secure the payment of bonds issued by •it, the evidence is sufficient to sustain the findings of the trial court that notices were given of the directors’ meetings at which the bonds were issued and that quorums were present.</p>

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

<p>Marriage—Province op Court to Place Restrictions Upon Right to Contract.—While the law and public policy may place restrictions upon the contracting of marriage, it is not the province of a court so to do.</p> <p>Id.—Annulment op Marriage—Unwarranted Continuance Because op Prior Interlocutory Decree op Divorce—Mandamus.—Where an action for annulment of marriage has come on for hearing and testimony has been taken, the court may not, because the plaintiff has previously obtained an interlocutory decree of divorce, continue the ease beyond the expiration of one year after the date upon which the interlocutory decree was granted; and if the court directs such continuance, mcmda/mm lies to have the case restored to its place on the calendar.</p>

<p>Municipal Corporation—Violation of Liquor Ordinance—Recovery of Penalty—Criminal Proceeding.—A proceeding by a municipal corporation, in its own name and in the form and with the process of a civil action, to recover the penalty for a sale of liquor in violation of an ordinance, which results in the arrest and imprisonment of the defendant for default in the payment of the judgment recovered, violates section 20 of article VI of the constitution providing that "the style of all process shall be ‘The People of the State of California/ and all prosecutions shall be in their name and by their authority.” The offense is public in its nature, and the proceeding is criminal in its character.</p> <p>Id.—Prosecutions in Name of People—Cases in Inferior Tribunals. This constitutional provision is not confined to prosecutions before the higher tribunals, but is applicable to proceedings in inferior courts arising out of the violation of municipal ordinances.</p> <p>Id.—Violation of Liquor Ordinance—Nature of Offense—Quasi Criminal Act.—The sale of liquor in violation of a municipal ordinance is not without such provision of the constitution on the theory that the offense is “quasi criminal.” No such intermediate grade between civil and criminal breaches of legal obligations is known to our law; there is no room between the terms of sections 22 and 24 of the Code of Civil Procedure for quasi criminal acts, or actions for their prevention or redress.</p> <p>Id.—Offense Against Public—Violation of Ordinance.—Nor is such offense without the constitutional provision on the theory that it is not an offense against the public generally, but only an infraction of the special enactment of a city in the enforcement of which it alone is interested.</p> <p>Id.—Character of Constitutional Provision Requiring Prosecutions to be in Name of the People.—The requirement of the constitution that prosecutions shall be in the name of and by the authority of the people is one which goes to the very substance and not mere shadow of those essential rights to which the individual is entitled when proceeded against for an alleged infraction of a law having for its penalty the deprivation of personal liberty.</p>

<p>Criminal Law—Rape—Female Under Age of Consent—Sufficiency of Uncorroborated Evidence of Prosecutrix to Support Conviction.—In this prosecution of a man for sexual intercourse with his daughter when she was under the age of consent, the uncorroborated testimony of the prosecutrix was sufficient to support a conviction, although she contradicted herself time and time again while a witness and even denied many times that, the defendant had intercourse with her, and although importunity and persistent effort on the part of the district attorney were necessary to elicit statements incriminating the defendant.</p> <p>Id.—Impeachment of Prosecutrix—Calling Attention to Her Testimony Before Grand Jury.—In such prosecution it was proper for the district attorney, when the prosecutrix gave damaging evidence against the people, to call her attention to inconsistent testimony which she gave before the grand jury.</p> <p>Id.—Witness False in Part—Instructions—When not Prejudicial Error.—An instruction to the jury that “if any witness examined before you has willfully sworn falsely in this case to any material matter, it is your duty to.distrust his entire evidence,” while not a strictly correct statement of the law, was not prejudicial in this case, since, considering the instructions together, the jury must have understood that while they were to look with suspicion upon the entire testimony of a witness who had willfully sworn falsely to a material matter, it was their exclusive right to weigh the evidence and to judge of the credibility of this as of other witnesses.</p>

<p>APPLICATION for Writ of Mandate to be directed to the Clerk of the Superior Court of San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Bringing Revolver into Jail—Sufficiency of Information—Redundancy.—An information which charges that the accused “did willfully and unlawfully and feloniously bring, and aid and abet in bringing into the county jail of the county of Santa Clara, a certain firearm, to wit, a loaded revolver, and that the said defendant was not then or there or at all authorized by law so to do,” sets forth an offense under section 171a of the Penal Code. The expression “and aid and abet in bringing,” and the term “loaded,” are unnecessary and may be disregarded as superfluous features of the information.</p> <p>Id.—Charging Accused as Principal—Proof of Abetting Crime.—• Having charged the defendant as principal, it is open to the people to prove that he actually committed the offense, or that he aided and abetted in its commission or advised and encouraged its commission.</p> <p>Id.—Elements of Crime—Necessity of Weapon Being Loaded.—The statute does not require the weapon to be loaded in order that the offense may be committed.</p> <p>Id.—Sufficiency of Evidence—Corroboration of Accomplice.—In this prosecution for bringing a revolver into a county jail the testimony of an accomplice is sufficiently corroborated; the statements of defendant tending to connect him with the commission of the offense, and being sufficient to meet the requirement of section 1111 of the Penal Code.</p> <p>Id.—Evidence of Abetting Crime—Variance.—Evidence showing that the defendant simply “advised and encouraged” the commission of the crime, did not create a variance; the information charging, ■bringing and abetting in bringing the weapon into the jail.</p> <p>Id.—Cross-examination of Witness—Improper Question.—In such prosecution it is proper to sustain an objection to a question to a witness for the people on cross-examination “And Mr. Desmond (the accused) did not assist you in any way in getting the gun into the jail did he?” such a question being for the jury to answer and not for the witness.</p> <p>Id.—Harmless Error in Examination of Witness.—If such witness already has testified of an agreement between himself and the accused to get a revolver and deliver it to the accused in jail, error, if any, in allowing him to state why he brought the weapon into the jail is harmless.</p> <p>Id.—Delivery of Revolver With Loaded Shells to Person in Jail— Instruction as to Commission of Crime.—An instruction: “If you believe from the evidence beyond a reasonable doubt that the defendant procured the witness Savage to bring a revolver into the county jail, as charged in the information, and that this revolver was not loaded but that the revolver was delivered to the defendant in the county jail by Savage accompanied by loaded shells that might be used to load the weapon, and that these shells were delivered to the defendant by Savage, along with the revolver, then I charge you that it is not necessary for you to find that the revolver when so delivered to the defendant was actually loaded at the time in order to find him guilty under the information,” while not happily phrased, could not prejudice the defendant.</p> <p>Id.—Participation in Crime—Inaccurate Instruction.—An instruction to the jury: “If you believe from the evidence beyond a reasonable doubt, that the defendant did not himself commit the offense charged in the information, but that such offense was committed and that the said defendant knowing that such crime was to be committed, and being present aided and abetted in its commission, or, not being present, advised and encouraged its commission, it is your duty to find him guilty of the crime charged,” while inaccurate in view of the accused being charged as a principal, and also as an aider and abettor, does not warrant a reversal.</p> <p>Id.—Instruction—When Does not Invade Province of Jury.—-An instruction: “It is not necessary that the defendant should have been present with the witness Savage on the outside of the county jail of Santa Clara County at the time the revolver is alleged to have been brought into said jail by said Savage, but if you believe from the evidence beyond a reasonable doubt that said revolver was brought into said jail as charged in the information, and that the defendant knowingly aided and abetted in the bringing in of said revolver and was present when the same was so brought in, and received said revolver from said Savage and concealed the same, you are justified in finding the defendant guilty,” does not invade the province of the jury and is not otherwise erroneous.</p>

<p>Appeal—Beview of Órdeb Based XJpon Conflicting Affidavits.—In the consideration of an appeal from an order made upon affidavits, involving the decision of a question of fact, this court is bound by the same rule that controls it where oral testimony is presented for review; if there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established.</p> <p>Id.—Affidavits in Favor of Successful Party—What Deemed to Establish.—As error is not presumed, and all intendments are in favor of the action of the lower court, it follows that the affidavits in behalf of the successful party are deemed to establish not only the facts directly stated therein, but also all facts which may reasonably be inferred or presumed from the direct and positive statements.</p> <p>Id.—Divorce—Motion for Change op Venue—Residence op Depend-ant.—A motion by the wife, in an action against her for divorce, to change the place of trial from Alameda to Sacramento County, on the ground that she is a resident of the latter, is properly denied, where it appears that she left the home of the plaintiff in Alameda County, without his consent and without misconduct on his part, taking a portion of her personal effects with her, went to Sacramento County, where she remained only one day, then departed for a third county, taking with her all the personal effects she had brought from Alameda County, and did not return, to Sacramento County and there reside although she entertained an intention of so doing.</p>

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

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

<p>Criminal Law—Homicide—Evidence of Movements of Defendants and Possession of Weapons Prior to Crime.—In a prosecution/ for homicide evidence is admissible that two days prior to the commis>sion of the crime the four defendants, jointly charged with the offense, wore traveling on the same railway train in the direction of the scene of the homicide, and that two of them wore then armed with revolvers, notwithstanding such circumstances incidentally show that the two defendants may at the same time have been violating the law against carrying concealed weapons.</p> <p>Id.—Cross-examination of Witness—Overruling Proper Question— Cure of Error.—Where in such prosecution a witness has testified that he heard one of the defendants say to his codefendants “Start shooting” but did not hear the name of any person mentioned, it is error to sustain an objection to a question on cross-examination as to whether he had at any time before testified that be had heard one of the defendants say at the time of the homicide to one of his codefendants to shoot a certain person, where the objection to the question is not based on the ground that the question involved an assumption of a fact not in evidence; but the error is cured by the subsequent reading in evidence of the former testimony of the witness given at the coroner’s inquest.</p> <p>Id.—Unresponsive Answer by Witness—Motion to Strike out.—A motion to strike out certain answers of a witness on the ground that they are not responsive to the questions should be specifically directed to the unresponsive part of the answers; if the motion is directed to the answers in their entirety, it is properly denied.</p> <p>Id.—Limitations on Cross-examination—Discretion of Court.— After a witness has testified upon cross-examination with considerable detail concerning the defendant’s dress and appearance upon a certain occasion, the court does not abuse its discretion in refusing to permit further cross:examination upon the same lines.</p> <p>Id.—Objection to Testimony—Motion to Strike Out.'—Where the testimony of a witness is either a mere opinion or else hearsay, a motion to strike out should be granted if the question was answered before counsel had an opportunity to object; but where counsel have an opportunity to object to a question before it is answered, objection comes too late after the answer is given.</p> <p>Id.—Cross-examination as to Testimony at Preliminary Hearing—■ Harmless Error.—Where it appears that the testimony of a witness at the preliminary examination is not inconsistent with his testimony at the trial, error in sustaining objection to a question on cross-examination, intended to develop such inconsistency, does not result in substantial injury.</p> <p>Id.—Separate Trial of Codefendants—When Waived.—Where some of the defendants jointly charged with homicide demand a separate trial, and two different juries are empaneled, but the trial of all the defendants goes on simultaneously before both juries up to a certain point when the jury sitting in the case of the codefendantü’ case is temporarily excused and the trial of the defendants who demanded a separate trial goes on separately, their counsel consenting in open court to such procedure, such defendants will not be heard on appeal to complain that their demand for a separate trial was denied, or that they were prejudiced by the procedure thus adopted.</p> <p>Id.—Aiders and Abettors of Crime—Sufficiency of Evidence.—The presence of two of the defendants at or near the entrance of the room in which the homicide occurred, was, in conjunction with the other facts of the case, legally sufficient to warrant the finding implied from the verdict that such defendants aided and abetted the commission of the homicide.</p> <p>Id.—Improper Questions on Cross-Examination-—Harmless Error in Overruling.—Error in overruling objections to questions on cross-examination to show that the defendants have on several occasions been arrested for carrying concealed weapons and one of them has been arrested for assault with intent to commit murder, is harmless if the answers are in the negative.</p> <p>Id.—Asking Improper Questions op Witness—Whether Prejudicial Error.—The mere asking of improper questions by the district attorney on cross-examination does not constitute prejudicial misconduct, where the court of its own motion ultimately charges the jury to be governed in its deliberations solely by the evidence which has been given by the witnesses, and not to be influenced by any matters outside of the evidence which may have been injected into the ease by counsel on either side.</p> <p>Id.—Error in E"xamination op Witness—Curing by Subsequent Proper Proop.—In a prosecution of Chinamen jointly charged with homicide error of the special prosecutor in suggesting to the jury, through the medium of questions to witnesses, that some of the defendants were men of lawless and desperate character, is without substantial prejudice in the face of the fact, subsequently shown by proper proof, that all of the defendants were not only the associates of highbinders but were themselves highbinders.</p> <p>Id.—Misconduct op District Attorney—Improper Questions to, Witnesses—Presumption as to Inpluenoe on Jury.-—There is no presumption that misconduct of the district attorney will prevail with a jury to thé detriment of a defendant in the face of an admonitory charge to disregard the same; but, to the contrary, the presumption is ordinarily that the jury will heed the charge of the court. In the present case the harm resulting from the mere asking by the district attorney of the questions complained of was in some instances minimized by the answers of the witnesses; and in the remaining instances counterbalanced by competent testimony; and upon the whole such harm was ultimately undone by the trial court’s admonition and charge to the jury to disregard the matters irregularly suggested, and be guided in arriving at a verdict solely by the evidence rightfully received.</p> <p>Id.—Appeal—Error Not Resulting in Miscarriage op Justice-Interpretation op Constitution.—Although section 4% of article VI of the constitution makes it the duty of appellate courts to affirm a judgment of conviction in a criminal ease regardless of any error as to any matter of pleading or procedure, where, upon a consideration of the entire record, including the evidence, they are of the opinion that the conviction has not resulted in a miscarriage of justice, nevertheless it might be well for trial courts and prosecuting officers generally to keep in mind, in conjunction with their oaths. of office, the fact that such provisions of the constitution were not designed to repeal or abrogate the guarantees accorded persons accused of crime by other parts of the constitution, or to overthrow all statutory rules of procedure and evidence in criminal cases.</p> <p>Id.—Bules oe Criminal Procedure—Failure to Observe—Beversal on Appeal.—Trial courts and prosecuting officers, in the trial of criminal eases, should adhere closely to the settled lines of criminal procedure at every stage of the case, and thereby be assured that they are neither aiding nor contributing to a miscarriage of justice, which, in cases where the evidence is evenly balanced, or the guilt of the defendant appears to appellate courts to be doubtful, will surely be reversed.</p>

<p>Griminal Law—Homicide—Defense op Alibi.—Judgment and order affirmed on authority of People v. Ho Kim You, ante, p. 451.</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. William P. Lawlor, 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>Criminal Law—Assault With Deadly Weapon—Motion to Set Aside Information—Review of Order Refusing.—An order denying a motion to set aside an information charging the accused with an assault with a deadly weapon is not reviewable on appeal, if there is nothing in the record from which it can be learned upon what grounds the motion was based or what evidence, if any, was offered or showing made in support thereof.</p> <p>Id.—Arrest of Judgment—Regularity of Preliminary Examination. The defendant in such case will not be permitted to raise the question as to the regularity of the preliminary examination on motion in arrest of judgment.</p> <p>Id.—Conflicting Evidence—Province of Appellate Court.—Appellate courts in such cases have not the duty or privilege of determining questions of fact arising out of a conflict in the evidence; that duty rests exclusively with the trial judge and jury.</p> <p>Id.—-Evidence—Sufficiency to Support Conviction.—In this prosecution of a man for assault with a deadly weapon upon his wife the evidence is sufficient to warrant Ms conviction.</p> <p>Id.—Examination of Witness—Misconduct of District Attorney.— It is not prejudicial or objectionable conduct on the part of the district attorney to propound questions to a witness as to conversations relative to the prosecution of the accused where the witness has stated, without objection, details of the conversation, and the statement objected to is only by way of repetition of what the witness has already said.</p> <p>Id.—Cross-examination of Accused—Prior Conviction of Felony.— It is proper for the district attorney, on cross-examination of the defendant, to ask whether he has previously been convicted of a felony. If the defendant has been previously convicted and pardoned for some offense, he can, upon advice of his counsel or the court, have the benefit of an instruction as to how he would be entitled under such circumstances to answer the question.</p> <p>Id.—Prior Threats—Admissibility Against Accused.—In a prosecution of a man for assault upon his wife with a deadly weapon, evidence of prior threats to commit bodily violence toward her is properly . admitted against the accused, at least as tending to show his purpose and intent at the time he is charged with having committed the assahltj And if on direct examination he states that he has not made such threats, it is proper cross-examination for the district attorney to state particular details showing the contrary of that statement and ask for the defendant’s answer as to whether or not those things so stated are true; and it was within the discretion of the court to allow witnesses to be called in rebuttal of the denials of the defendant, even though the matter may have been more proper for proof as part of the main ease of the people.</p> <p>Id.—Argument of District Attorney—Whether Prejudicial Misconduct.-—Although the district attorney, in his argument to the jury, is emphatic in his denunciation of the defendant, this is not prejudicial where h'e calls attention to the testimony from which his inferences are drawn, and the court, at one juncture instructs the jury directly that certain inferences drawn by the prosecutor are too broad and not to be considered, whereupon a portion of the objectionable remarks is. withdrawn.</p> <p>Id.-—Wife as Witness Against Husband.—In a prosecution of a man for assault upon his wife with a deadly weapon, she is a competent witness against him.</p> <p>Id.—Assault With Deadly Weapon—Absence of Physical Injury.— It is not necessary, in order to establish the commission of the crime, that the accused should have actually cut his intended victim with the knife which he exhibited.</p> <p>Id.—Defense—Evidence of III Feeling Engendered by Third Persons—Evidence in such prosecution is not admissible to show that ill feeling of the husband toward his wife was engendered by her relatives. An assault with a deadly weapon is not justified by a showing that the motive or animus prompting it has been produced by improper statements or conduct made by third parties, or even by the complainant.</p> <p>Id.—Whereabouts of Defendant After Assault—Cross-examination Regarding.—Sustaining an objection to a question to the wife on cross-examination as to whether the defendant continued to live with her up to the time of his arrest, is not prejudicial, when she has given no testimony on direct examination as to his acts or whereabouts after the assault, and the defendant himself is not prevented from proving directly the facts which he seeks to bring out on the cross-examination of his wife.</p> <p>Id.—Identification of Weapon-—Sufficiency of Evidence.—If the wife, when shown a knife and asked whether, according to her best recollection, it is the knife with which the accused threatened to cut her, replies, “Yes sir; that’s the knife,” the identity of the weapon is thereby sufficiently established.</p>

<p>Claim and Delivery—Leased Chattel—Allegation op Demand por Possession.—Where a lease of personal property provides that the lessee shall not let the property out of his possession without first obtaining the written consent of the lessor, it is necessary, in an action by the lessor to recover possession of the property from transferees of the lessee, where it does not appear by the allegations of the complaint that the defendants did not obtain possession with the consent of the plaintiff, to allege the making of a demand for the delivery of the possession during the time when the defendants held possession of the property.</p> <p>Id.—Demand por Return op Property-—Necessity Before Bringing Action.—-If in such case the defendants obtained possession of the property rightfully, then it was necessary, before bringing an action of claim and delivery, that demand be made upon them requiring that the property be delivered to the lessor.</p> <p>Id.—Parties Dependant—Joinder op Lessee.—The plaintiff in such case is not required to join as a party defendant the lessee named in the contract and to whom the property was first delivered, for an action of claim and delivery will only lie against persons who have possession of property in dispute at the time of its commencement.</p>

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

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

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

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

<p>1 APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Homicide—Misconduct op Jury in Visiting Scene op Crime—Whether Ground por New Trial.—The fact that two jurors in a homicide case visit alone the scene of the crime during the progress of the trial, does not warrant a new trial, if it is not made to appear that they saw or heard at the place of the homicide anything different from or eontradietoiy of the evidence adduced at the trial, or that their inspection resulted in an understanding of the evidence or any fact in the case in any wise different from that conveyed to them by the testimony of sworn witnesses and the details of the scene of the crime as depicted upon the diagram already in evidence at the trial.</p> <p>Id.—Misconduct op Jury—Harmless Error.—Such rhisconduet is not per se sufficient to warrant the granting of a now trial; but prejudice must be shown to have followed, and in the absence of an affirmative showing of resultant injury to the defendant a verdict of guilty must stand.</p>

<p>Statute of Limitations—Failure to Plead in Action on Note-Finding as to Bar of Cause.—A finding in an action on a promissory note that the cause of action is barred by the statute of limitations, when the statute has not been pleaded, is reversible error.</p>

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

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

<p>Covenant Against Encumbrances—Breach—Measure op Damages.— While a covenant against encumbrances is broken as soon as made by the existence of an encumbrance, yet as respects the measure of damages recoverable, it must be deemed merely a covenant to indemnify the grantees for damages or loss sustained; and if they have paid nothing toward removing or extinguishing the encumbrance, they are not entitled to recover the amount thereof.</p> <p>Id.—Action fob Breach of Covenant—Insufficiency of Complaint— Absence of Allegation of Payment of Lien.—A complaint in an action to recover damages for the breach of a covenant against encumbrances contained in a deed, which fails to allege the payment or discharge of the lien, but affirmatively shows the continued existence thereof, does not state a cause of action.</p>

<p>Damages fob Breach of Contract—General and Special Damages Distinguished.—General damage's for a breach of contract are those which necessarily and by implication of law result from the act or default complained of; they are those which involve the loss which . naturally flows from, and is presumed from, the contract and its breach. Special damages are the natural, but not necessary, result of the act complained of.</p> <p>Id.—Breach of Contract to Convey Land — Special Damages—• Pleading.—Damages due to expenses incurred in examining the fitle and preparing necessary papers do not necessarily arise from the breach of a contract t.o convey real estate; they are special, and in order to recover therefor the fact that such expenses were incurred and the amount thereof must be specially pleaded.</p> <p>Id.—General Allegation of Damages—Sufficiency of Complaint.— But it is not necessary, in an action to recover damages for a breach of a contract to convey real estate, where the consideration therefor has been paid, and where there are no allegations of any expenses incurred in examining the title or preparing the necessary papers, or showing of bad faith under which a recovery might be had for the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, to allege special damages, sines from such -breach damage follows not only as the natural but presumably necessary result thereof.</p> <p>Id.—Value of Land—Failure to Allege—Demurrer to Complaint.— Such complaint, by reason of not stating the value of the land conveyed, may be subject to special demurrer for uncertainty, but the defect is not reached by general demurrer.</p> <p>Id.—Demand for Repayment and Reconveyance—Failure to Allege. The complaint in such case is not insufficient by reason of the failure to allege a demand for a reconveyance of the property and the return of money paid, and refusal on the part of the defendants so to do.</p>

<p>Criminal Law—Homicide—Exclusion op Evidence—Whether Reversible Error.—In this prosecution for a homicide wherein it appears that the defendant, during an altercation with the man for whose killing he is prosecuted, shot such man and also his own wife', the court committed no prejudicial error in the exclusion of testimony, and the evidence is sufficient to sustain a conviction of murder in the second degree.</p> <p>Id.—Circumstantial Evidence—Whether Mat Overcome Direct Testimony.—Circumstantial evidence disproving the direct statements of the accused may be such that the jury is not obliged to believe Mm.</p> <p>Id.—Cross-examination op Witnesses—Right to Bring Out Remainder op Conversation.—The rule that where part of a conversation has been shown in testimony the remainder thereof may be brought out by the opposing party on cross-examination, is subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced.</p> <p>Id.—Error in Cross-examination—Record—Review on Appeal.—A party claiming that the court has erre'd in its exorcise of discretion as to such a matter of cross-examination must show by the record some definite and legal purpose in the asking of the excluded question. In the ease at bar an examination of the questions and answers which had been admitted on cross-examination, shows that they covered the topics of the direct examination very fully, and that the excluded questions, so far as not included in other admitted questions, were upon immaterial matters.</p> <p>Id.—Misconduct op District Attorney—Assignment op Error— Review on Appeal.—If no assignment of misconduct of the district attorney is made at the time of its occurrence, the misconduct will not be considered on appeal.</p> <p>Id.—Doctrine op Reasonable Doubt—Refusal op Instruction Concerning—Harmless Error.—A refusal to instruct the jury that “if any one, or any member, of you, after deliberating on and considering all the evidence in this case, shall be of the opinion that the defendant has not been proved to be guilty to a moral certainty and beyond a reasonable doubt, those of you entertaining such opinion should vote in favor of acquittal, and should so adhere to your opinion until convinced to a moral certainty and beyond a reasonable doubt of the guilt of the defendant of the alleged crime by and from the evidence and the law alone in this case,” if error, is without prejudice, where the jury are told very plainly that they have no right to go outside of the evidence admitted by the court and no right to reject arbitrarily the evidence of any witness, that they must fairly consider all of the evidence in the case, that every person is presumed to be innocent until he is proved guilty, and that if upon such proof there is reasonable doubt remaining the accused is entitled to the benefit of it by acquittal.</p>

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

<p>APPEAL from a judgment of the Superior Court of Napa County and from an order refusing a new trial. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>False Imprisonment—Arrest by Railroad Police Officer—Relation of Officer to Railroad Company.—The liability of a railroad company for the acts of a police officer appointed by the governor on its application .under the act of 1901 (Stats. 1901, p. 66), does not depend upon the relation of master and servant, or principal and agent, although he serves at the expense of the company.</p> <p>Id.—Arrest by Railroad Police Officer—Liability of Railroad Company.—The railroad company incurs no liability for the arrest and detention, by such officer, without a warrant, of a person suspected of larceny, unless it is for “an abuse of authority”; and in this action against the railroad company to recover for false imprisonment, it appears that the officer did not abuse his authority but was entirely justified in making the arrest.</p> <p>Id.—Malicious Prosecution—Malice and Want of Probable Cause— Necessity of Establishing.—In actions for malicious prosecution the plaintiff must, in order to recover, establish not only malice, but want of probable cause. These two elements are essential, and they must concur or the action will not lie.</p> <p>Id.—Probable Cause—What Constitutes.—Reasonable or probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.</p> <p>Id.—Malice and Probable Cause—Whether One may be Inferred from; Other.—Malice may be inferred from want of probable cause, but want of probable cause cannot be inferred from malice.</p> <p>Id.—Probable Cause—-Whether Question of Law or of Pact.— Probable cause is a mixed question of law and fact, and where the circumstances clearly appear by uneontradieted testimony, it is the province of the court to determine the question of probable cause.</p> <p>Id.—Malice—Necessity of Proving as Pact.—There is no legal presumption of malice, and although malice may be inferred from want of probable cause or other circumstances, as an inference of fact, still, whether by inference or otherwise, it must be proved as a fact.</p> <p>Id.—What Constitutes Malice—Evil or Sinister Purpose.—To constitute malice, as the term is used in the law of malicious prosecution, there must be an evil or sinister purpose actuating the person who institutes the proceeding.</p> <p>Id.—Evidence—Sueeioiency to Show Malice ok Want oe Probable Cause.—In this action against a railroad company to recover damages for the arrest and prosecution of the plaintiff for larceny, the arrest having been made by a railroad police officer and the prosecution having been assisted by the company’s agent, an attorney, the evidence is mot sufficient to sustain either an inference of malice or of want of probable cause.</p> <p>Id.—Arrest—What Necessary to Jijstiey.—It is not necessary to justify an arrest that the complainant be possessed of proofs of guilt beyond a reasonable doubt. All that the law requires is that the complainant have reasonable cause to believe that the crime has been committed and that he is not actuated by malice.</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>Will M. Beggs, R. C. McComish, Louis Oneal, Jas. P. Sex, and Weinmann, Wood & Cunha, for Appellant.</p>

<p>Declamation District—Action to Determine Legality of Assessment—Overrating of Benefits.—-In an action under section 349314 of the Political Code to determine the validity of an assessment levied by a reclamation district for the construction of a levee, the landowner may show in defense that there has been a material overrating of benefits and consequent injuries to the taxpayers, whether such overrating is the result of fraud or negligence on the part of the commissioners.</p> <p>Id.—Question of Benefits—Discretion of Commissioners in Determining.—But in the application of this rule, the statute contemplates that considerable discretion shall be exercised by the commissioners in the determination of the question as to benefits which will accrue to the several tracts of land included in the district; and that while an arbitrary assessment cannot be levied, the judgment of the commissioners upon the assessment, after a view of the lands contemplated by the statute, must be presumed to have been the result of a consideration of all the elements necessary to a just apportionment of the assessment.</p> <p>Id.—Presumption Daised by Section 3463 of Political Code—When Inapplicable.—The presumption raised by section- 3463 of the Political Code to the effect that the assessment-list of the commissioners or a certified copy thereof is prima facie evidence of the matters therein contained, and that such assessment was levied in proportion to benefits to be derived from the works of reclamation, may under some circumstances be sufficient to support a finding of the propriety and equality of the assessment, but where the commissioners themselves testify directly and fully as to the method</p> <p>pursued by them in apportioning the charges upon the land, there is' no room for the play of the presumption, and their testimony should be looked to as a guide to what they did.</p> <p>Id.—Assessment for Levee—Arbitrary Scale—Values and Benefits. If the commissioners of a reclamation district, in levying an assessment to construct a levee, arbitrarily proceed on the theory that no assessment should be less than one nor more than ten dollars, and do not take into account the value of the land at the time of the assessment and its probable enhancement from the construction of the improvement, and the evidence shows a wide departure in the result reached from the proportionate increase in the respective values of the various tracts of land, a court is warranted in setting aside the assessment.</p> <p>Id. — Matters for Consideration in Levying Assessment—■ Prior Levees—Condition of Land.—In levying such assessment the commissioners should take into consideration the levees that have previously been constructed and their relation to the protection of the land from overflow, and they should also take into consideration existing conditions of the land as they are at the time of the assessment.</p> <p>Id.—Value of Land—Consideration of Increase from Improvement. The commissioners should take into consideration the value of the land at the time of the assessment as contrasted with its value after the completion of the improvement; and the value is either the intrinsic or the market value, but there is no way of determining the intrinsic except by applying the te'st of the market value.</p> <p>Id.—Difference in Value of Land Before and After Improvement as Measure of Benefits.—One method of ascertaining the proportionate benefits to the land from the levee, is to determine the value of the land before and after the improvement, the difference being the measure of the benefit; but this is not necessarily the only method.</p> <p>Id.—Payment by Part of Landowners—Whether Bars Setting Aside of Assessment.—The fact that an assessment levied by a reclamation district has been paid by many of the landowners without complaint, and by a few over objection, will not' deter a court from setting aside the assessment, if its inequalities are palpable and important and it would be a gross injustice to some of the landowners to enforce the charges as made by the commissioners.</p>

<p>Criminal Law—Pandering—Attempt to Commit—Sufficiency of Evidence.—The law recognizes such a crime as an attempt to commit pandering, and the evidence in this ease is sufficient to support the verdict of conviction of an attempt to commit the offense of procuring a place for a female as an inmate of a house of prostitution.</p> <p>Id.—Attempt to Commit Crime—What Constitutes.—To constitute the crime of an attempt to commit a. crime, the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances, and the refusal of a female to accept the place procured for her in a house of prostitution is such an extraneous circumstance, where the crime charged is an attempt to commit pandering.</p> <p>Id.—Attempt to Commit Pandering—What Constitutes.—Where a man in Los Angeles makes arrangements by letter with a keeper of a house of prostitution in San Francisco for a woman in Los Angeles to enter such house for purposes of prostitution, and assists the woman in leaving Los Angeles and going to San Francisco, and she is there met by the keeper and taken to the house, he is guilty of an attempt to commit pandering, although the woman stays in the house only a few hours and leaves it without there engaging in sexual intercourse.</p> <p>Id.—Venue of Crime—Offense Partly Committed in Two Counties. The crime in such case may, under section 781 of the Penal Code, be prosecuted either in Los Angeles County or in the city and county of San Francisco.</p> <p>Id.—Evidence—Commission of Similar Offenses.—In such prosecution evidence is admissible, for the-purpose of showing the intent of the accused, that about a year before-he committed a similar offense.</p> <p>Id.—Instructions to Jury—When Do not Amount to Coercion.— Where, on a trial for pandering, the original charge to the jury makes no reference to the right to find the accused guilty of an attempt to commit the crime, it is not coercion for the court to give an instruction on the subject of attemping to commit the offense, where the jury requests such upon their return to the courtroom for further instructions.</p>

<p>Criminal Law—Pandering—Attempt to Commit—Admissibility and Suppicienoy op Evidence.—In this prosecution of the keeper of a house of prostitution for attempting to commit the crime of pandering by aiding another person in procuring the prosecuting witness as an inmate of the 'house, the evidence offered by the prosecution was admissible and sufficient to support a verdict of conviction, although the prosecuting witness, when placed in the house, remained there only a few hours, and while there refused to engage in sexual ‘ intercourse.</p> <p>Id.—Attempt to Commit Pandering—Whether Conviction Sustainable.'—Such verdict is not open to attack on the theory that there is no such crime under the statutes as an attempt to commit pandering; and that if there is such a crime, provision is made by law for its punishment as a substantive offense, not as an attempt.</p> <p>Id.—Attempt to Commit Crime—Interpretation op Section 664 op Penal Code.—The provision of section 664 of the Penal Code that "every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts,” applies exclusively and must be confined to “attempts” designated by the statute as such, and does not- refer generally to acts done in the attempt to commit one crime which, if done without relation to the offense, might be separately punished.</p>

<p>Appeal—Bill op Exceptions—Necessity op Statement op Entire Evidence.—The party proposing a bill of exceptions is required only to set forth therein a record of so much of the proceedings as will illustrate the error claimed, and it is the duty of the opposite party to propose, if he is able to, such amendments as will show that the alleged errors were cured or rendered nonprejudicial. It will not be presumed that if omitted evidence had been supplied, a different case would be shown, but the presumption will be that the record does exhibit all matters material to a consideration of the points presented.</p> <p>Id.—Action por Wrongful Death—Employee at Cement Plant Caught Between Car and Bins—Evidence.—In this action to recover damages for the death of a laborer at the cement manufacturing plant of the defendant, from being caught between a car and the planking of rock bins located in close proximity to the track upon which the car was being backed, there was no error in refusing to permit a witness for the plaintiff to answer a question as to whether he knew of a steel car being run on the track at or near the time of the accident which was so wide that it hit the side of the timbers.</p> <p>Id.—Examination of Witness—Question Suggesting Conclusion.—In sueh action it was not improper, as suggesting a conclusion, to allow a witness to say that certain planks were placed “so the men could go from this half of the bin across there.”</p> <p>Id.—Answer of Witness-—Use of Pronoun in Second Person.—The testimony of a witness, in describing conditions which might have affected the ability of the deceased to observe his danger, “I never noticed dust thick enough there that you could not see a distance of pne hundred fifty feet,” was not objectionable on the theory that -because the witness used the pronoun in the second person, he was not giving testimony of his own knowledge, but an opinion as to what persons then addressed might have been able to do.</p> <p>Id.—Dangerous Premises—Bins Close to Track—Evidence.—If the complaint in such action alleges that there was not sufficient space for any human being to stand between the ears and any of the structures described, including the “pit,” witnesses may be allowed to ■testify that they had stood beside the “pit” when cars of similar dimensions to that which crushed the deceased passed them without coming in contact with their persons.</p> <p>Id.—Assumption of Risk—Instruction Embracing Only Part of Code Section.—An instruction to the jury, in the language of section 1970 of the Civil Code, that an employer “is not bound or under obligations to indemnify his employees for losses suffered by them in consequence of the ordinary risks of the business in which they are employed,” was not erroneous because omitting that part of the section which follows and which provides, “nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee, or unless the employer has neglected to use ordinary care in the selection of the culpable employee.”</p> <p>Id.—Danger of Employment—Instructions Regarding—When not Misleading.—An instruction to the jury that “if you believe that the business of working on and about a railroad track is a dangerous and hazardous employment, and if you further believe that the injuries sustained by the deceased we're on account of one of the dangers or hazards ordinarily incidental to such business of working on or about railroad tracks, then your verdict must be for the defendant,” was not misleading when considered in connection with the entire charge.</p> <p>Id.—Assignment of Error as to Instructions—Insufficiency of Record.—A specification of error that the court refused to give certain instructions asked for by the appellant cannot be considered on appeal, if the text of sueh instructions does not appear in the record outside of the specifications.</p>

<p>Criminal Libel—Use of Innuendoes—Sufficiency of Information— Demurrer.-—-An article, alleged to be defamatory and to have been published of and concerning another, cannot have its words and phrases enlarged heyond their natural import and plain and ordinary meaning by innuendo, and in case this is attempted in the information the remedy is by way of demurrer; but if the article does not require the use of innuendoes to make it actionable, the faet that the drawer of the information makes use of innuendoes in aid of the actual intent and meaning of the article complained of neither strengthens nor weakens the information as a pleading.</p> <p>Id.—Newspaper Article Charging Misappropriation of Funds by Chairman of Committee.—A newspaper article headed, “Make a clean breast of it,” and directed to an individual by name, referring to “the mysterious disappearance of six hundred dollars of the money received by and tabulated in the report of the finance committee of the 14th of July celebration,” of which such person was the chairman; urging him to tell “into which pocket or pockets have strayed the six hundred dollars”; averring that “mistakes, irregularities, forgeries, and even embezzlements of money have been ascertained in the published statements of account of this committee” ; demanding an explanation of the .person; asserting that “an honest man never hesitates to justify himself when he is accused of committing offenses such as these with which he has been charged”; asserting that he is “obstinately resolved to be mum on this subject”; and finally closing as it began with the insistence that the person named should “make a clean breast of it,” comes within section 248 of the Penal Code relating to criminal libel, and does not require the use of innuendoes to render it actionable.</p> <p>Id.—Privileged Communication-—Instructions.—Such article is not a communication to a person or persons interested therein, which is privileged under section 256 of the Penal Code; and in a criminal prosecution for the publication of the article, it is proper to refuse an instruction referring to the asserted right of a newspaper to fairly and justly “criticise” the actions of those committees or members of committees having in charge the celebrations of holidays and anniversaries, and stating that the criticisms and comments of the press upon acts and conduct of persons in charge of public celebrations are privileged communications.</p>

<p>Criminal Law—Sale op Dairy Cows Without Notice to Mortgagee or Buyer—Sufficiency of Information.—In this prosecution for the sale of twenty-five dairy cows without informing the buyer of the existence of a mortgage on the cattle or the mortgagee of the intention to make the sale, the information was sufficient and set forth the particular facts of the offense charged.</p> <p>Id.—Identification of Animals by Other Means Than Brands.—In such prosecution the mortgagee may be permitted to give testimony as to the identification of the cattle sold by other marks in addition to the brand on them.</p> <p>Id.—Payment of Mortgage Subsequent to Sale—Evidence.—Evidence in such prosecution tending to show that the mortgage was paid by transactions occurring subsequently to the sale, and that ultimately the mortgagee did not lose anything by the defendant’s acts in diminishing thex security, was properly excluded.</p> <p>Id.—Subsequent Sale by Mortgagee—Evidence.—An objection to a question propounded to the mortgagee as to what cattle he was preparing to sell at a time prior to the sale by the defendant, was properly sustained.</p> <p>Id.—Declaration by Mortgagee—Admissibility in Evidence.—Objection was properly sustained to a question propounded to the mortgagee as to a statement made by Mm that he had not lost anytMng on the defendant and would not lose anytMng on him.</p> <p>Id.—Subsequent Payment op Mortgage—Whether a Defense.—Payment of the mortgage, after the commission of the offense, did not constitute any defense to the prosecution.</p> <p>Id.—Elements op Offense—Right op Mortgagor to Sell—Agency.— Section 538 of the Penal Code, defining the offense in question, requires that in making a sale of mortgaged chattels the mortgagor must, at or before making the sale, inform the prior mortgagee in writing by giving the name and place of residence of the party to whom the sale is to be made, and that he must also inform the purchaser of the existence of the prior mortgage. Therefore the defendant had a right to sell his cattle without permission of the mortgagee, by giving the information as required by law, and no question of agency was applicable to the transaction.</p> <p>Id.—Accommodation Mortgage—Sale by Mortgagor—Evidence.—If the defendant claimed that the mortgage was made for accommodation and did not represent a real debt, the prosecution was entitled to inquire of the defendant concerning other transactions preceding the execution of the mortgage and apparently inconsistent with his testimony about an alleged debt owing from the mortgagee to Mm at the time of the execution of the mortgage.</p> <p>Id.—Application op Penal Code in Case op Accommodation Mortgage. The claim of the defendant that the mortgage was given “for accommodation” implies that the note and mortgage were made to be pledged or otherwise used in some business transaction, and the maker of such a mortgage is no more excused from observing the provisions of the Penal Code than is the maker of any other chattel mortgage.</p> <p>Id.—Instruction as to Credibility op Witnesses—Refusal to Give— Harmless Error.—The refusal to give an instruction, for the most part following the language of section 1847 of the Penal Code, as to the credibility of witnesses, was not prejudicial, if instructions are given which substantially cover the same ground.</p> <p>Id.—Reasonable Doubt—Intent to Defraud—Refusal of Instruction.—The court did not err in refusing to instruct the jury that in order to convict the defendant they must be morally certain not only that the defendant sold to the persons mentioned in the information, and at the time and place therein stated, one or more of the cows described therein, but they must be satisfied to a moral certainty and beyond a reasonable doubt that the defendant sold and delivered such cow or cows “with the intent in him to defraud” the mortgagee.</p> <p>Id.—Intent to Defraud in Selling Mortgaged Property—Whether an Essential Element op Crime.—That part of section 538 of the Penal Code which refers to the selling of mortgaged personal property does not make the intent with which the act was done an indispensable element of the offense; and when intent is not made an affirmative element of a crime, the law imputes that the act knowingly done was with criminal intent, and it need not be alleged nor proved.</p> <p>Id.—Information—Clause Charging Intent—Disregarding as Superfluous.'—If the information, charging the owner of mortgaged cattle with selling them without informing the buyer of the mortgage or notifying the mortgagee of the intended sale, alleges that the defendant’s acts and omissions were “with intent to defraud” the mortgagee, this clause may be regarded as superfluous, and proof of such acts and omissions on the part of the defendant carries with it a necessary implication of intent to defraud both the mortgagee and -the purchasers of the mortgaged property.</p>

<p>Negligence—Change op Steps Due to Raising Building—Injury to Tenant Using Steps.—Where the owner of an apartment house raises the building several inches, but leaves the steps, which lead from the porch to the sidewalk, in their original position, without warning his tenants, and a tenant, in coming out of the building and proceeding to the sidewalk without noticing the changed condition, falls and is injured, the question of the owner’s negligence is one of fact, and an appellate court cannot say, as a matter of law, that the' trial e’tiurt erred in awarding the tenant damages for his injuries.</p>

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

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

<p>PETITION for a Writ of Prohibition to be directed to the Superior Court of San Bernardino County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Del Norte County and from an order refusing a new trial. John L. Childs, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Counties—Claim fob Expebting Books—Mandamus to Compel Payment—Defenses.—In mandamus proceedings to compel a county treasurer to pay a claim allowed by the board of supervisors against the county for exporting the county books, it is error to sustain a demurrer to the answer, on the ground that it does not state facts sufficient to constitute a defense, if the answer alleges that the contract upon which the claim is based, is invalid because it was not first approved by the court as prescribed by section 928 of the Penal Code, and that the claim was not filed with the clerk of the board three days prior to the session at which it was allowed.</p> <p>Id.—Allowance of Claim—Jurisdiction of Board of Supervisors.— The mere presentation of a claim against a county to the board of supervisors does not clothe the board with jurisdiction to consider and allow it, and the order of the board allowing the claim does not ipso facto operate to foreclose consideration of the question as to jurisdiction of the board.</p> <p>Id.—Illegal Allowance of Claim—Duty of Treasurer—Defense to Mandamus.—It is the duty of a county treasurer to refuse payment of a claim if upon the face of the claim it appears that the board of supervisors did not have jurisdiction to allow it, and such apparent lack of jurisdiction may properly be pleaded by the treasurer as a defense to a writ of mandamus.</p> <p>Id.—Itemization of Claims—Section 4075 of Political Code not Mandatory.—While the language of section 4075 of the Political Code, requiring an itemization of claims against a county, is at the outset apparently mandatory in making compliance therewith essential to the jurisdiction of the1 board to even consider a claim, the proviso in the concluding clause of the same section indicates that compliance with the requirement is directory, and therefore not essential to the board’s jurisdiction to pass upon, and allow claims.</p> <p>Id.—Time for Filing Claims—Section 4076 of Political' Code Mandatory.—But the same reasoning chnnot be applied to the provision of section 4076 of the Political Code that no account shall be passed by the board, unless filed with the clerk three days prior to the time of the meeting at which it is to be allowed. This language is mandatory in character, and nothing to the contrary elsewhere appearing, must be held to mean that compliance with its terms is a prerequisite to the jurisdiction of the board to consider and allow claims against the county.</p> <p>Id.—Purpose of Statute Requiring Claims to be Filed Three Days Before Meeting of Board.—The primary purpose of the statute in this particular is to permit a public and timely examination of all claims which may have been presented to the board for allowance, in order that subsequent opposition to their payment may, if necessary, be intelligently and effectively made.</p> <p>Id.—Illegal Claims Against County—Duty of Treasurer.—A county treasurer is by law required to pay only such warrants as are founded upon orders of the board of supervisors for the payment of claims legally chargeable against the county. He may and should refuse to pay warrants known by him to have been drawn for claims not authorized by law.</p> <p>Id.—Contract eor E'xferting County Books—Power op Grand Jury. Under section 92'S of the Penal Gode the power of a grand jury to make a contract for. the services of an expert and such assistants as may be necessary in the examination of the county books is not only limited in price to a designated per diem, but the approval of the court is expressly made a condition precedent to the execution of the contract.</p> <p>Id.—Contract in Violation op Statute—When Illegal.—A contract is illegal which is made in direct disregard of the provisions of a, statute which provides for and regulates its making.</p> <p>Id.—Exferting County Books—Contract by Grand Jury—Failure to Observe Statutory Requirements.—A contract by the grand jury with a firm of experts to expert the county books, which is not approved by the court as prescribed by section 928 of the Penal Code, and which provides for a sum in excess of ten dollars a day for the experts and in excess of five dollars a day for each assistant, is illegal, and a claim thereon is illegal. The board of supervisors has therefore no jurisdiction to allow the claim, and an attempted allowance invests the claim with no validity.</p>

<p>Negligence—Collision or Automobile With Motorcycle—Opinion op Injured Person as to Speed op Automobile.—In an action by the rider of a motorcycle to recover for personal injuries suffered through a collision with an automobile, it is error to refuse to allow him to testify as to the speed of the automobile at the time of the accident, upon .the theory that he did not have sufficient opportunity to form an opinion upon the question by reason of having been knocked down immediately after reaching a point where he could see the automobile, where it appears that not only did he see the automobile before it struck him and have time to turn the handlebars of his motorcycle so as to change his course, but that he thereafter observed the speed of the automobile while it was running a distance of half a block ahead.</p> <p>Id.—Speed of Automobile—Competency of Witness to Give Opinion. A person of ordinary intelligence, having opportunity for observation, is competent to testify as to the speed at which an automobile was being operated at a given time. .</p> <p>Id.—Directing Verdict for Defendant—When Unwarranted.—If in such action the facts and circumstances shown by the evidence are such that the jury may as reasonable and impartial men draw the inference therefrom that the defendant was negligent, it is error to take the case from the jury and direct a verdict for the defendant. Id.—Directed Verdict—When Proper—Absence of Conflict in Evidence.—A directed verdict is proper whenever, upon the whole evidence, the judge would be compelled to set a contrary verdict aside as unsupported by the evidence. It is not necessary that there should be an absence of conflict in the evidence, but, to deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one.</p> <p>Id.—Failure to Register Motorcycle as Required by Ordinance— Whether Bars Action by Owner.—The failure of the driver of the motorcycle to register it as required by ordinance as a condition to lawfully operating it on the streets of the city, does not bar his right to recover for negligently being struck by 'the driver of the automobile.</p> <p>Id.—Violation of Ordinance—Whether Bars Action for Negligence. The violation of an ordinance which directly contributes to personal injury caused by the negligence of another bars the right to recover, but where such violation bears no causal relation to nor contributes to the injuries sustained, this rule has no application.</p>

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

<p>Appeal—Motion to Dismiss fob Failure to File Transcript "in Time —When Premature.—A motion to dismiss an appeal from a judgment because of failure to serve and file the transcript within the time prescribed by rule II of the supreme court, is premature if made within forty days after the filing, by stipulation, of a substituted appeal bond.</p>

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

<p>Mandamus—Compelling Clerk to Enter Default—Sufficiency of Petition for Writ.—To justify the issuance of a writ of mandate to compel the county clerk to enter the default of the defendant in a civil action, it must be shown by the petition for the writ that no answer has been filed within the statutory time, or such further time as may have been granted, and that the plaintiff in the cause has made application for the default.</p> <p>Id.—Stipulation Waiving Demurrer—Befusal to Enter Default.— Mandamus will not issue to compel the county clerk to enter the default of the defendant in a civil action for failure to answer the complaint within the time specified in a stipulation waiving a, demurrer to the complaint, when the stipulation is signed by the clerk of the defendant’s attorney, and the petition for the writ does not allege that the clerk had authority to sign or that the defendant entered into the stipulation.</p> <p>Id.—Waiver of Demurrer—Whether may be Accomplished.—There is no statutory provision for waiving a demurrer that has been filed in a cause. To effectually dispose of it, it is probable that an order of court is required sustaining or overruling it or allowing it to be withdrawn.</p>

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

<p>Fraudulent Assignment—Attached Fund—Necessity That Attaching Creditor First Recover Judgment.—Where all parties in a suit to determine the ownership of an attached fund submit to an inquiry as to whether the assignment of the fund was fraudulent, and the court makes findings on the issue, an objection that the attaching creditor had no standing to attack the assignment because of not having recovered judgment against the debtor cannot be raised on appeal.</p> <p>Id.—Attack upon Assignment as Fraudulent—Burden of Proof.— In an action attacking as fraudulent an assignment of an attached fund, the burden of establishing the insolvency of the debtor at the time of the assignment, as well as the charge of fraud, is upon the attaching creditor.</p> <p>Id.—Finding Against Fraudulent Assignment—Sufficiency of Evidence.—In this action to determine the ownership of an attached account, as between an attaching creditor and a prior assignee thereof, the finding that the assignment was not fraudulent is supported by the evidence.</p> <p>Id.—Assignment to Attorney for Past and Future Services.—The assignment was not invalid because made to the debtor’s attorney, and for future as well as past services.</p> <p>Id.—Preference of Creditors—Disposition of Surplus.—The law permits a debtor to make an assignment of some of his outstanding accounts for the benefit of his attorney, and out of the surplus to pay certain creditors by way of compromising, where possible, their claims for damages.</p>

<p>Landlord and Tenant—Interpretation of Lease—Demise of Portion of Tract—Covenant not to Demise Other Portions for Like Purposes.—A provision in a lease of two acres of a tract embracing one thousand acres for hotel and summer resort purposes, that the lessors “will not demise or let any other part of their said premises to be used for like purposes as those herein let to the said party of the second part, and that they will not grant similar rights and privileges upon their said premises to any other persons as those granted to the said party of the second part herein,” is not violated by the sale, during the existence of the lease, of portions of the one thousand acre tract to others, who thereafter conduct the same character of business on the purchased premises as that conducted by the lessees.</p> <p>Id.—Meaning of Word “Demise”—Whether Includes “Sell” or “Convey.”—In such ease the word “demise,” coupled by the disjunctive conjunction “or” to the word “let,” does not preclude the lessor’s right to convey or sell his remaining property for any or all purposes whatsoever. The word “demise” used as a noun, means a lease for a term of years; a conveyance in fee, for life or years; the conveyance of an estate, either in fee or for life or for years, most commonly the latter. As a verb it means to lease for a term of years.</p> <p>Id.—Intention of Parties—Extrinsic Evidence.—The intention of the parties must be gathered from the consideration of the lease itself, if it is fairly expressed therein, and no extrinsic evidence is admissible to show their intention.</p> <p>Id.—Interpretation of Lease—Presumption in Pavor of Lessee.—In such a lease no presumption in favor of the lessee can be indulged, since restraint in alienation of realty is not favored by the law.</p> <p>Id.'—Action for Breach of Covenant—Sufficiency of Complaint to Warrant Revision.—In an action by the lessee for breach of such restrictive covenant in the lease, allegations in the complaint that the words employed in the covenant were, by “mutual consent of all parties thereto, distinctly understood” to mean that the lessors “would not let, demise or grant to any other person” the right to carry on a summer resort on the “larger tract of one thousand acres,” do not justify a revision of the lease under section 3399 of the Civil Code. To state a case for the revision of a written instrument under that section, it is incumbent upon the pleader to show, by direct averment, that, by reason of fraud practiced by one of the parties, or of the mutual mistake of one of them, which the other at the time knew or suspected, there were thus omitted from the instrument certain material terms and conditions, or, in other words, that the language of the writing failed, for some reason, to express the intention of the parties.</p>

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

<p>Pleading—Amended Complaint—Sufficiency of Affidavit of Service.—An affidavit oi service of an amended complaint is not insufficient because reciting that the affiant served a copy of the amended complaint, instead of stating that he served the amended complaint by delivering a true copy thereof.</p>

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

<p>Sale—Absence of Delivery and Change of Possession—Presumption of Fraud upon Creditors.—Where one having control and possession of personal property transfers the same, the transfer is conclusively presumed to he fraudulent and voidable as against his creditors, unless accompanied by an immediate delivery and followed by actual and continued change of possession of the thing transferred.</p> <p>Id.—Change of Possession—What Constitutes.—The change contemplated by section 3440 of the Civil Code must be actual, visible, and apparent, and such as to give to the public evidence of the claim of the new owner.</p> <p>Id.—Writing—Whether Obviates Necessity for Change of Possession.—A mere writing, the execution of which is unknown except as between the parties thereto, in the absence of an actual and visible change of possession, will not satisfy the statute.</p> <p>Id.—Transfer of Personalty by Husband to Wife—When Fraudulent as to Creditors.—Where a man transfers personal property •by bill of sale to Ms wife, but neither of them do anything to acquaint the public with the transaction, and they both continue to perform the same duties and apparently occupy the same relation to the business with wMch the property is connected, and there is no actual change of possession, the sale is fraudulent and voidable as against the creditors of the husband.</p> <p>Id.—Conditional Sales—Detention of Title in Seller After Delivery—Validity.—Conditional contracts of sale of personal property, whereby possession is delivered to the buyer while the title remains in the seller, are recognized by the law.</p> <p>Id.—Wrongful Attachment—Conversion—Measure of Damages.— Where personal property has been sold under a conditional contract reserving title in the seller, an attachment of the property for the debts of the buyer constitutes a conversion as against the seller, and Ms damage's are measured by section 3336 of the Civil Code.</p>

<p>Criminal Law—Bape—Female Under Age op Consent—Cross-examination op Prosecutrix.—In a prosecution for rape upon a female under the age of consent the very widest latitude compatible with our somewhat technical and restricted rules of evidence should be allowed the defendant in his cross-examination of the witnesses of the people. More especially is this true with reference to the prosecuting witness. In this class of prosecutions the defendant, owing to natural instincts and laudable sentiments on the part of the jury, and the usual circumstances of isolation of the parties involved at the commission of the offense, is, as a rule, so disproportionately at the mercy of the prosecutrix’s evidence, that he should be given the full measure of every legal right in an endeavor to maintain Ms innocence.</p> <p>Id.—Failure op Prosecutrix to Make Complaint—Bestriction on Bight op Cross-examination.—In such prosecution it is not only error, hut highly prejudicial to the substantial rights of the defendant, to- refuse to permit him on cross-examination of the prosecutrix to fully investigate the circumstances of, and also her motives and reasons for, withholding any statement of the alleged offense for the period of two months, and then telling the same to the officers who had her in custody under arrest.</p> <p>Id.—Venereal Disease op Prosecutrix—Evidence that Accused has no Such Disease.—If in such prosecution testimony is introduced to the effect that the prosecutrix at the time of the trial had a venereal disease which, according to her testimony, could only have been contracted from the defendant, it is error to refuse to permit the defendant to show by the testimony of physicians that he is not suffering from such a disease, and perhaps has never had it.</p> <p>Id.—Admissions of Defendant—When Should be Stricken Out.—• Admissions made by the defendant concerning his relations with the prosecutrix should be stricken out promptly when it is disclosed on cross-examination that the witness did not know whether the admissions referred to the prosecutrix or one of several other girls who frequented the vicinity of the commission of the alleged offense. The court should'not refuse to rule on the motion therefor until the argument to the jury is begun, and then remark, “I think the testimony of Mr. C. should be stricken out.”</p> <p>Id.—Misconduct of Court—Whether Reversible Error.—The action of a trial judge in being hasty, unreasonably arbitrary and humiliating throughout the trial to the defendant’s counsel, standing alone, in the absence of prejudicial error, would not justify a reversal of this ease, but merely accentuate the effect of other errors disclosed by the record.</p>

<p>APPEAL from a judgment of the Superior Court of Del Norte County and from an order refusing a new trial. John L. Childs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Filing Papers—When Accomplished—Remissness of Officer--A paper is deemed to be filed when presented at the proper office, especially when there deposited with directions to file it; and when a proper filing or offer of filing has thus been made by a party, he should not suffer for the remissness of the filing officer in the performance of his duty.</p> <p>Id.—Appeal in Justice’s Court—Filing of Undertaking—Indorsement of Filing Mark.—Where the undertaking and notice of appeal in a justice’s court are received by the justice in time, with the request that they be filed, the failure of the justice to indorse the filing mark on the undertaking as of such date, he having indorsed an earlier date thereon when the sureties justified before him, does not deprive the superior court of jurisdiction.</p>

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

<p>Appeal—Delay in Preparing Bill op Exceptions—Dismissal op Appeal.—Where a proposed bill of exceptions is withdrawn by stipulation on the day of its presentation for settlement and the respondent allowed thirty days to prepare amendments thereto, but no further steps are taken for five years by the appellant to procure the settlement of the bill, the appeal will he dismissed on motion.</p> <p>Id.—Proceeding Pending por Settlement op Bill op Exceptions.—In such ease there is no “proceeding pending for the settlement of a bill of exceptions" within the meaning of the provision of rule 2 of the supreme court that “if a proceeding is pending for the settlement of a bill of exceptions or statement which may be used in support of such appeal, the time aforesaid shall not begin to run until the settled and authenticated statement or bill of exceptions has been filed.” The effeet of the stipulation for the withdrawal of the proposed bill was the same as if the bill had never, as a matter of fact, been presented for settlement as provided by section 650 of the Code of Civil Procedure.</p> <p>Id.—Wrongful Possession op Bill op Exceptions by Respondent-— Duty op Appellant.—If counsel for the respondent took possession of the original bill of exceptions as proposed by the appellant and wrongfully kept the custody thereof for an unreasonable time, still it was the duty of the appellant, as the actor in the proceeding looking to the preparation of Ms appeal, to move promptly and diligently in the matter and take such steps as might have been necessary for the preservation of the integrity of the proceeding for the proper settlement and authentication of the record on appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Del Norte County and from an order refusing a new trial. John L. Childs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Automobile Law—Collision—Statute Imposing Penalty fob Failure of Driver to Beveal Identity and Bender Assistance— Constitutionality of Statute.—Section 367c of the Penal Code, which makes it a crime for the driver of a motor vehicle, in case of a collision with any person or vehicle, to refuse to stop and render to the person struck, or to the occupants of the vehicle collided with, all necessary assistance, and to give to such injured person or persons the number of his vehicle, his name and address, and the name of the owner of such vehicle, does not offend the1 constitutional provision that “no person shall be compelled, in any criminal case, to be a witness against himself.”</p> <p>It.—-Purpose of Statute—Police Regulation.—The statute is a simple police regulation; it does not' make the accident a crime. If a crime is involved, it arises from some other statute. It does not attempt in terms to authorize the admission of the information as evidence in a criminal proceeding; and the mere fact that the driver discloses his identity is no evidence of guilt, but rather of innocence.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge. The facts are similar to those stated in the opinion in Baker v. Eilers Music Company, ante, p. 348.

<p>APPEAL from a judgment of the Superior Court of Alameda County. W. H. Waste, Everett J. Brown, and Wm. S. Wells, Judges.</p> <p>The facts are similar to those stated in the opinion in Spring Valley Water Company v. County of Alameda, ante, p. 278.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. John E. Richards, Judge.</p> <p>The facts are similar to those stated in Parkinson Bros. Co. v. Figel, ante, p. 701.</p>