Volume 3 — California Appellate Reports

<p>APPEAL from a judgment of the Superior Court of Napa County, and from an order refusing a new trial. H. C. Gesford, 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>Mining Claim—Notice of Location—Posting and Recording.—The mining law of the United States (U. S. Rev. Stats., see. 2324) does not require the notice of location of a mining claim to be posted or recorded; and it is only where the local customs and rules of the miners of the district require these steps that they are necessary.</p> <p>Id.—Customs of Miners—Evidence—Presumption.—In the absence of evidence as to the custom of miners in a particular district and at a particular time respecting the steps necessary to the location of a mining claim, it must be presumed that the United States law governed all locations at that time.</p> <p>.Td.—Gratuitous Annual Work.—Annual work done on a mining claim by a third person, of the value of one hundred dollars, is sufficient to constitute the assessment work required by law, although it may have been contributed gratuitously to the locator.</p> <p>Id.-—-Relocation.—A mining claim which was validly located in the year 1893, and on which the annual assessment work was done to and including the year 1900, was not open to relocation by a third person during the year 1901.</p> <p>Id.—Time in Which to do Assessment Work.—A locator of a mining claim has all of the succeeding calendar year in which to do the necessary assessment work.</p>

<p>Negligence—Pleading—Resulting Injuries—Evidence.—In an action to recover damages for personal injuries caused to the plaintiff through the negligence of the defendant, it is not necessary to allege specifically the nature of the disease or other hurts received by the plaintiff; and under a complaint alleging, among other effects of the plaintiff’s injury, that he was “thereby made sick,’’ evidence that he contracted pleurisy, which developed into pneumonia, is admissible.</p> <p>Id.—Fall op Elevator—Presumption op Negligence—Question por Jury.—In such a case, it is a question for the jury whether the presumption of negligence arising from the fall of a passenger elevator was overcome by the testimony of witnesses to the effect that the elevator and the machinery by which it was operated were of the best kind in use, and as to the satisfactory character of its operation.</p>

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

<p>Judgment—Default—Service of Summons on Agent of Corporation—Surprise.—A default judgment rendered against a foreign corporation, upon a service of summons made on its business agent personally, who disregarded the service on the advice of counsel that it was of no effect, will be set aside on the ground of “surprise” of the defendant corporation, where it had no notice of the service until after the entry of the default.</p> <p>Id.—Order Refusing to Vacate Default—Exception Presumed.— Under section 647 of the Code of Civil Procedure, as amended in 1876 (Stats. 1875-76, p. 91, c. 517), an order refusing to set aside a default, not made in the absence of the party, is deemed to have been excepted to, as “an interlocutory order or decision finally determining the rights of the parties, or some of them.”</p>

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

<p>Criminal Law—Bobbery—Information.—An information for robbery is sufficient if it states that the defendant did ‘‘ unlawfully and feloniously, and by means of force and fear, take from the person, possession and immediate presence of one William Little the sum of $20.75, in lawful money of the United States of America, then and there the personal property of said William Little.” It was not necessary that the information should state that an assault was made, nor the kind of fear that was produced upon the party robbed, nor that the money taken was gold coin.</p> <p>Id.—Evidence—Force and Fear.—In a prosecution for robbery, the evidence held sufficient to show that the complaining witness parted with his money by means of force and fear.</p> <p>Id.—Instruction—Error Must be Pointed Out.—The refusal to give instructions requested by the defendant will not be reviewed for error, where the only reference made thereto in his brief is “that all the instructions requested by defendant were improperly refused. ' ’</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco vacating a previous order appointing an administrator of the estate of a deceased person. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—Evidence.—In a prosecution for grand larceny, the evidence reviewed and held sufficient to sustain a judgment of conviction.</p> <p>Id.—Deposition Taken Before Magistrate—Absence of Witness from State—Due Diligence to Produce.—Under section 686 of the Penal Code, when a witness has been examined at the preliminary examination before the committing magistrate, and his testimony taken down by question and answer, in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, the deposition of such witness may be read at the subsequent trial of the defendant, upon its being satisfactorily shown to the court that he is dead, or insane, or cannot with due diligence be found within the state. The fact that the prosecution, at the time of the examination, knew the witness would be absent at the time of the trial, and failed to request the magistrate to order him to be put under bonds to secure his appearance, in accordance with section 879 of the Penal Code, was not a failure to exercise “due diligence” to produce the witness, and does not render his deposition inadmissible at the trial.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Mendocino County vacating a default. J. 0. White, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Evidence—Verdict.—The appellate court, in considering the sufficiency of the evidence to sustain a verdict, will indulge every intendment in support of the verdict by assuming the truth of evidence tending to support it.</p> <p>Id.—Nonpayment.—The evidence reviewed and held sufficient to sustain a finding of nonpayment of the accounts stated sued on.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Thomas F. Graham, 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 granting a new trial on terms. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order refusing a new trial. J. B. Welch, 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 Sonoma County, and from an order refusing a new trial. A. G. Burnett, 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—County Ordinance—Justice’s Court—Pleading Ordinance—Judicial Notice.—A complaint filed with a justice of the peace, charging the defendant with an offense in violation of a county ordinance, need not plead the ordinance by reference to its title and date of passage. That court will take judicial notice of such local law.</p> <p>Id.—Carrying Concealed Weapon—Police Power.—A board of supervisors has authority in the exercise of its police power to prohibit the carrying of concealed deadly weapons about the person in public places. ' Such an ordinance is not unreasonable, oppressive or discriminating, because it authorizes the sheriff to grant permits to carry such weapons to officers and other persons as he may deem fit.</p>

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

<p>Judgment—Justice’s Court—Statute of Limitations—Action After Expiration of Five Years.—An independent action in the superior court on money judgments rendered in a justice’s court is barred, under section 336 of the Code of Civil Procedure, upon the expiration of five years after their entry. The authority given by section 685 of that code—conceding it to apply to the judgments of justice’s court—of extending the time for the issuance of an execution, is restricted to the court and to the original action in which the judgment was rendered.</p>

<p>Finding — Conflict of Evidence — Loan—Appeal.—The question whether money sued for .was given by the plaintiff to the defendant as a loan, or for the special purpose for which the defendant used it as agent for the plaintiff, is for the determination of the trial . court, and its finding will not be disturbed on appeal where the evidence is conflicting.</p> <p>Purchase of Stock on Margin—Agent for Purchaser.—One who intrusts money to another as his agent to purchase shares of stock for him on margin for future delivery, which money is so used, cannot sue the agent for the money, but must look to the party with whom such prohibited contract was made.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County and from an order refusing a new trial. W. S. Wells, 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>Corporation—Manager is Officer—Verification of Complaint.—The manager of a corporation is an officer thereof, and as such authorized to verify a complaint in an action by the corporation.</p> <p>Id.—Unverified Answer—Judgment on Pleadings.-—Where an unverified answer is filed to a verified complaint, denying generally each and every allegation of the complaint, the plaintiff is entitled to judgment on the pleadings, and is not limited to striking the insufficient answer from the files.</p>

<p>Estates of Deceased Persons—Attorney for Executor—Payment of Distributive 'Shares.—The attorney for the executor of the will of a deceased person is disqualified from representing the distributees for the purpose of supervising the proceedings of the executor, and a payment of their distributive shares to such attorney will not absolve the executor.</p> <p>Id.—Unauthorized Payment to Attorney.—A payment of distributive shares by the executor to the attorney of the distributees will not absolve the executor, if made in contravention of an express understanding between the executor and the distributees that payment was to be made directly to them.</p> <p>Id.—Liability of Executor for Distributive Shares—Decree Discharging Executor.-—The right of the distributees, under section 1666 of the Code of Civil Procedure, to demand, sue for and recover their distributive shares from the executor is not affected by the decree, discharging the executor from all liability to be incurred thereafter, rendered under section 1697 of that code.</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>Common Carrier—Bill of Lading—Contract to Forward by Connecting Carrier.—Under section 2201 of the Civil Code, a steamship company which accepts merchandise to be forwarded beyond a particular port, under a bill of lading by which it contracts to carry it to such place and there deliver it to the consignee, or if it was to be carried beyond such place, to there deliver it to some connecting carrier, absolves itself from further liability upon making a delivery to a connecting carrier at such intermediate port. And a statement in the bill of lading that the consignee was at a place beyond such port was notice to the steamship company that the merchandise was not to be delivered to him there, but that it was to be delivered to a connecting carrier.</p> <p>Id.—Marking of Packages—Designation of Connecting Carrier— Delivery to Forwarder—Evidence.—The marking of the packages of such merchandise with the name of the connecting carrier at the intermediate port was a sufficient designation of the carrier to which they were to be there delivered; and the fact that they were so delivered is sufficiently proved, in an action against the-first carrier, by evidence that one of the vessels of the connecting carrier brought the merchandise to the place of consignment and there delivered a portion of it to the consignee.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Louttit & Louttit, and Buck & Middlecoff, for Appellant.</p>

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

<p>Contract for Sale of Real Estate—Action by Broker for Commissions—Sale by Owner—Support of Verdict and Judgment.— In an action by a broker to recover commissions on the sale of real estate under a contract making the broker the exclusive agent of the owner for ten days, and ‘‘ thereafter until withdrawn” by the owner “in writing,” and providing for payment of the agreed commissions to the broker upon a sale, effected while the contract remains in force, by whomsoever it is made, where it appeared that the contract was never withdrawn, and the sale was made by the owner, and plaintiff recovered judgment, if no question is made as to the sufficiency of the evidence and if there are no tenable errors in law, the verdict and judgment and order denying a new trial are supported, and must be affirmed.</p> <p>Id.—Evidence—Impeachment of Plaintiff—Foundation not Shown. Where evidence sought on cross-examination for the purpose of impeaching the plaintiff by certain statements made by him, in a conversation with defendant, did not tend to impeach him, and no proper foundation was laid for that purpose, the court did not err in excluding the evidence offered.</p> <p>Id.—Indorsement Extending Time of Contract—Opinion of Defendant in Absence of Plaintiff—Hearsay.—Evidence for the defendant, as to a conversation with defendant, out of the presence and hearing of the plaintiff, in which defendant stated what was understood by an indorsement extending the time of the contract, was properly excluded as hearsay as to the opinion of the defendant as to such understanding.</p> <p>Id.—Legal Effect of Extension-—Termination of Contract.—The memorandum extending the time for the contract from the original ten days to another fixed date, did not have the effect of terminating the contract at that time. It remained in effect until withdrawn by the defendant in writing, as expressly provided in the contract; and the extension merely prevented the defendant from terminating it by notice in writing prior to the end of the extended time.</p>

<p>APPEAL from an order of the Superior Court of Santa Cruz County taxing a cost-bill. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>LANDLORD AND TENANT-ASSIGNEE OF FORMER TENANT—POSSESSION. One who enters into the possession of leased premises as assignee of a former tenant, claims that he is the tenant thereof, pays the rent and takes receipts in his own name, remains in possession by the permission of the landlord, and does not restore the possession, is liable as tenant for the rent.</p> <p>Id.—Unlawful Detainer—Notice to Quit.—In an action of unlawful detainer, an allegation in the complaint of the giving of a three days’ notice to pay the rent or surrender possession, which is admitted by the answer, need not be proved.</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>Mechanics’ Liens-—Consolidated Actions—Cross-complaint—Period op Credit—Stipulated Defenses.—In a consolidated action to foreclose mechanics’ liens, which included a last action by appellant and also a prior action by other plaintiffs, in which appellant filed a cross-complaint to enforce his lien within ninety days after the expiration of a credit given on his claim, such cross-complaint must be deemed the commencement of an action by him, within the period of limitation provided in section 1190 of the Code of Civil Procedure; and where defenses thereto were stipulated, notwithstanding it had once been stricken out and restored by consent, and no objection was made thereto upon the trial of the consolidated action, and judgment was rendered for appellant against the contractor, it must be deemed upon appeal that the cross-complaint, and all defenses thereto were before the court for its adjudication.</p> <p>Id.—Completion op Work by Owner—Default op Contractor—Time op Completion.—Where the contract provided that upon the default of the contractor the owner might terminate the employment by notice and complete the work, which was done, the credit given by the contractor to appellant for thirty-five days after the completion of the work cannot be construed as expiring within thirty-five days after the default of the contractor, there being no actual abandonment of the work within the statute, and the credit extends to thirty-five days after the completion of the work by the owner.</p> <p>Id.—Distinct Eights op Owner—Statute—Contract.—Where there has been an actual abandonment of -the work by the contractor for the period of thirty days, the rights of the owner to complete the work after the thirty days ’ suspension is given by the statute; but when the right of completion is given by the terms of the contract under a notice provided for therein, the completion of the work by the owner after said notice must be deemed a completion of the work under the contract.</p> <p>Id.—Constitutional Law—Cessation op Lien—Eppect op Code— Limitation op Actions.—The liens of mechanics and material-men protected by section 15 of article 20, of the constitution cannot be declared by the legislature to cease to exist; and the provision in section 1190 of the Code of Civil Procedure to that effect must be disregarded. It can only be construed legitimately as a statute of limitation of actions upon properly filed claims of lien, as an entirety, and not upon items included in said claims.</p> <p>Id.—Installments Due Contractor not Barred as Against Lien Claimants—Period oe Credit.—Installments due the contractor cannot be deemed barred as against lienholders, under section 1190 of the Code of Civil Procedure; and where the cause of action upon the entire claim of the lien claimant did not accrue until the expiration of the credit given to him by the contractor, the ninety days' limitation of'Ms action under that section did not begin to run until the expiration of such credit.</p> <p>Id.—Notice to Owner—Extent oe Bights oe Lien Claimant.—A lien claimant who has given the owner notice to withhold money due from the contractor is not entitled to a personal judgment against the owner, who has completed the work under the terms of the contract, where the money due the contractor in his hands does not exceed the amount due the lienholders, but his rights as a lienholder in such ease are limited to his pro rata share of the funds of the contractor in the hands of the owner applicable to such payment.</p>

<p>APPEAL from an order of the Superior Court of Fresno County setting aside a default, and from an order setting aside a judgment. George E. Church, 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>Foreclosure of Street Assessment—Succession to Defendant Pending Suit—Vacation of Judgment—Improper Order.—V here a judgment foreclosing a street assessment against a defaulting defendant was rendered upon evidence for plaintiff, and after due deliberation, and was not void upon its face, however erroneous it may be, an order vacating the judgment, made upon the judgment-roll, and upon an affidavit showing a succession to the rights of the defaulting defendant pending suit, and upon a notice of motion to vacate it for want of authority to render it against the defaulting defendant, after it had been dismissed as to fictitious defendants, but specifying no ground or claim that the judgment was rendered by reason of any mistake or inadvertence, or was entered by misprision of the clerk, was improperly made, and must be reversed upon appeal therefrom.</p> <p>Id.—Remedy for Judicial Error—Showing upon Record.—If any error was committed in rendering the judgment, it was a judicial error which could be corrected only upon an appeal, or through a motion for a new trial; and any error committed by the court upon the trial or in rendering the judgment, in order to be available for the purpose of vacating or setting the judgment aside, must be manifested by a bill of exceptions made part of the record. Its validity cannot be impeached by affidavits outside the record.</p> <p>Id.—Dismissal as to Fictitious Defendants—Availability of Error as to Defaulting Defendant.-—Any error of the court in rendering judgment as to a defaulting defendant, after dismissal of the action as to defendants jointly sued with her by fictitious names, was only against the defaulting defendant, and is available only to her, and not to any stranger to the action, or one not a party thereto, nor to either of the defendants dismissed. Upon dismissal as to them, their rights in the land were unaffected by the judgment, as if the action had been originally brought against the defaulting defendant alone.</p> <p>Id.—Waiver of Error—Failure to Appeal.—It was competent for .the defaulting defendant to waive the error by failure to appeal from the judgment, and by submitting to a sale of her interest in the land in satisfaction of the lien.</p> <p>Id.—Moving Party not Sued—Improper Answer.—When the complaint alleged that the defendants sued by fictitious names were, on the day the assessment became a lien, and still continue to be, owners of the lot, an answer by a successor of the defaulting defendant, as of one sued by a fictitious name, showing that the deed to him was made one day prior to the filing of the answer, was improper and unauthorized. He was not one of the defendants to the action nor entitled to be made a defendant thereto; and the action was properly dismissed as to him.</p> <p>Id.—Appeal—Notice—Defaulting Defendant not Served—Dismissal.—An appeal by plaintiff from the order vacating the judgment foreclosing the street assessment against the defaulting defendant, on an improper motion by a successor of such defendant pending suit, will not be dismissed on the ground that the defaulting defendant, who has not complained of the judgment, was not served with the notice of such appeal.</p>

<p>Criminal Law—Bill of Exceptions—Extension of Time for Presentation—Notice to District Attorney—Jurisdiction—Prohibition.—The provision of section 1171 of the Penal Code, as-amended in 1905 (Stats. 1905, p. 761, e. 569), requiring a notice in writing to be given by the defendant in a criminal case to the-district attorney of the intended presentation of his bill of exceptions to the judge “at least two days before such presentation or delivery, ’ ’ and the provisions of section 1174 of the same code-as so amended, that the time so specified may be extended for a reasonable period by the trial judge, but only for good cause and upon affidavit showing the necessity therefor, presented upon written notice of at least two days to the adverse party, who shall have the right to file counter-affidavits, and that in no ease can the time be extended by stipulation of the parties, are mandatory and not merely directory, and must be substantially observed in order to give the court jurisdiction to settle the bill, and the threatened action of the court to settle a bill which was presented without notice to the district attorney, after the expiration of the-time limited therefor, and without an order extending the time for its presentation obtained in the manner required by section 1174^ will be restrained by prohibition at the instance of the people.</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>P. Y. Long, City Attorney, W. G. Burke, City Attorney, and A. S. Newburgh, Assistant City Attorney, for Appellant.</p>

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

<p>Public Office—Salary Incident to Occupation of Office.—The legislature has power to provide that the salary attached to a public office shall be an incident, not to the title of the office, but to its occupation and exercise.</p> <p>Id.—Right of Incumbent to Salary Pending Contest—County Supervisor.—Under section 936 of the Political Code, as amended in 1891, one who has received a certificate of election as county supervisor, qualified as such, entered upon the discharge of the duties of such office, and continued to perform them during the pendency of a contest respecting the title to such office and until he was ousted from the office as the result of the judgment in such contest, is entitled to receive the salary 'attached to the office to and until the judgment in the contest proceedings becomes final. The successful contestant has no right to the salary which accrued during that period.</p> <p>Id.—But One Salary for County Office.—Under the limitations of the constitution, the legislature has power to provide for but one salary as an incident to a county office.</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>

of the Superior Court of Los Angeles County, and from an order denying a new trial. D. K. Trask, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for a writ of habeas corpus.</p> <p> n </p> <p>The facts are stated in the opinion of the court.</p>

<p>Action fob Conversion—Construction of Code—Pledge bt Agent—• Conditions of Protection of Pledgee.—Though, by the terms of subdivision 2 of section 2368 of the Civil Code, a factor or mere agent, who is in possession of property with power to sell it, has no authority to transfer it by way of pledge, yet section 2991 of that code was enacted for the purpose of protecting a pledgee who deals with a possessor of the property on the faith that he is the owner, if the real owner has allowed the pledgor to assume the apparent ownership, and has done so for the purpose of making any transfer of it. The pledgee must show the existence of these . conditions, as well as good faith, before he can claim a title superior to that of the owner.</p> <p>Id.—Effect of Mere Possession—Ownership not Affected—Misplaced Confidence.—Mere possession of personal property is only mere prima facie evidence of ownership. The owner may place his property in the custody of a carrier, warehouseman or other bailee, without in any respect affecting his ownership. Whoever deals with the possessor does it at his peril; and the purchaser from one having no other apparent title than possession must see to it that the seller has the title; and if his title fails, and he is obliged to respond to the true owner of the goods, his loss is due to his misplaced confidence and not to that of the owner.</p> <p>Id.—Effect of Warehouse Receipt.—A warehouse receipt, except as against the warehouseman, is no higher evidence of title than would be the physical possession of the property. A warehouse receipt presented by the pledgor to his pledgee is only prima facie evidence of ownership of the merchandise therein mentioned; and if the owner does not authorize, and is in no respect connected with, the issuance of such receipt, his rights as owner of the property will not be affected by it.</p> <p>Id.—Unauthorized Changes in Warehouse Receipts.—When, in the first instance, merchandise consigned to the order of the plaintiff was deposited in a warehouse in its name, at the instance of the representative of its factor, the latter had no authority to direct words to be added to the entry indicating that it was in his care, and the entry of such words created no right in him; nor had he authority to change the entry to the name of a firm as plaintiff’s factor, nor to withdraw it by himself as their representative, for the purpose of depositing the same in another warehouse in his own name, and obtaining a receipt which he might pledge to the defendant.</p> <p>Id.—Authority op Factor—Power op Delegation.—Whatever authority the firm constituting plaintiff’s factor may have had in reference to goods shipped by plaintiff to its own order upon notice to such factor; was not conferred on a local representative, and could not be exercised by him nor delegated to him by such factor.</p> <p>Id.—Authority op Representative.—The representative of such factor could receive the goods and place them in the warehouse for the plaintiff, but he had no authority, by virtue of such relation, to store them in his own name, either directly or indirectly.</p>

<p>Divorce—Pleading—Overruling Demurrer—Finding fob Defendant.-—In an action for a divorce, the overruling of a demurrer on the ground of uncertainty to one of several causes of action stated is without prejudice to the defendant, if the court finds in his . favor on that, cause of action.</p> <p>Id.—Adultery—Certainty in Pleading.—In an action for a divorce on the ground of adultery, the complaint should charge the offense with such reasonable certainty as to time, place and person that the defendant may know the charge that he is called upon to meet. If the name of the person with whom the adultery was committed be known, it should be stated; if the name be unknown, that fact should be stated.</p> <p>Id.—Sufficiency of Particularity.—A complaint for divorce on the ground of adultery, which charges the defendant with a series of adulteries with the same unknown person, at four specified cities, during a period of about two and one-half months, is sufficiently definite to enable the defendant to prepare his defense, although neither the name .of the adulteress nor the particular place, house or locality where the adulteries were committed are aUeged.</p> <p>Id.—Residence of Plaintiff.—On a review of the evidence, held that it is sufficient to support the finding that the plaintiff was a resident of this state for more than one year next prior to the commencement of this action.</p>

<p>APPLICATION for a writ of prohibition to the Superior Court of Shasta County. C. M. Head, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Gift Inter Vivos—Subsequent Loan to Donor—Consideration.—A gift of money made inter vivos, and which was completed by a transfer and delivery by the donor to the donee, passes the title and is not revocable; and a subsequent loan of the same amount of money by the donee to the donor is based upon a sufficient consideration.</p> <p>Id.—Evidence Already Given.—The refusal to permit a witness to answer a question in reference to a matter as to which she had already testified fully is not prejudicial.</p> <p>Id.—Evidence as to Estate and Relatives of Donor.—In an action against the estate of a deceased person, in which the question involved was as to whether or not certain gifts of his separate property made by the deceased to the plaintiff were valid, it is not error to exclude evidence as to who were the relatives of the deceased, and the amount of the estate he left.</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. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Instructions—Modified Bequest—Court’s Instruction.—Where the court modifies an instruction requested by the defendant in a criminal ease, and gives it as modified, the modified instruction becomes the court’s instruction, and, if erroneous, it is subject to the same exception as if given without any request therefor.</p> <p>Id.—Trial for Murder—Identity of Defendant—Question for Jury —Erroneous Modified Bequest—-Presumption from Name.— Upon a trial for murder charged against “Wong Sang Lung,” where there was conflicting evidence as to the identity of defendant with the person committing the homicide; and the dying declaration of the deceased was that “Wong Lung” killed him, and it was shown that there were numerous Chinese of that name at the place of the homicide, the question of identity of the defendant was for the jury, and it was error to modify a requested instruction: “Identity of person is presumed from identity of name; but where there is evidence that there are in the neighborhood several persons of the same name, this presumption does not prevail,” etc., by striking therefrom all but the first clause, and to give the presumption alone. The court thereby invaded the province of the jury, and improperly instructed them as to “matters of fact.”</p> <p>Id.—Effect of Plea of not Guilty—Identity Denied—Degree of Proof Bequired—Presumptions.—The plea of not guilty of murder denied every fact essential to the guilt of the defendant, including his identity with the person who committed the homicide, and threw upon the prosecution the necessity of proving that fact beyond a reasonable doubt; and no presumptions are to be made against the prisoner. The determination of the question of identity must be made upon all the evidence before the jury, and not upon a presumption from a portion thereof.</p> <p>Id.—Disputable Presumptions—Controverting Evidence—Province of Jury.—The disputable presumptions declared in section 1961 of the Code of Civil Procedure are not controlling, as matter of law, where controverting evidence is introduced; and the fact in question is to be determined by the jury upon a consideration of such evidence, in connection with the presumption.</p> <p>Id.—Applicability of Presumption of Identity.—The presumption of identity of person from identity of name can be invoked only where such name is to be applied to a particular person involved. If such name be a common one in the vicinity, or if it be shown that there is more than one person to whom the name may be applied, there can be no presumption that such person is the one to whom the jury should apply it, though the identity of name was a fact proper to be considered by the jury in connection with the other evidence before them.</p>

<p>Pipe-line—Right of Plaintiff to Use—Wrongful Removal.—Whether a pipe-line, which had been placed in and along the land of the plaintiff by the predecessor of the defendant, under an agreement that it was to remain where it was placed for a term of years, during which time the plaintiff was to have the use of it, be regarded as realty or personalty, its wrongful removal by the defendant is an invasion of the rights of the plaintiff, for which he is entitled to damages, notwithstanding the general property in the pipe-line belonged to the defendant.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jesse W. Lilienthal, and H. Gr. W. Dinkelspiel, for Appellant.</p>

<p>Street Assessment—Contracts Providing for Maximum Hours of Labor and Minimum Wages—Assessment.—The inclusion in a contract for a street improvement of a provision fixing the maximum hours of labor, and the minimum wages of laborers employed by the contractor, does not invalidate the assessment for the work, if all other matters in regard to the assessment are regular, and the contract was let to the lowest bidder, and neither the specifications for the work nor the notices for bids contained any statement intimating that the contract should contain such provision.</p>

<p>APPLICATION for a writ of habeas corpus to the agent of the state of Texas.</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—Order to Keep the Peace—Imprisonment in Default of Bond—Habeas Corpus.—A prisoner who had been arrested under a warrant issued by a justice of the peace, on an information that he had threatened to commit an offense against the person of another, and on being brought before the justice was ordered to give a bond to keep the peace, and in case of failure, to be imprisoned in the county jail for a period not to exceed six months, and who was committed to the custody of the sheriff upon his failure to give such bond, is entitled to be discharged on habeas corpus, if the deposition of the informer was not taken by the justice before issuing the warrant, and the information fails to show facts justifying its issuance.</p>

<p>State Lands—Suitableness fob Cultivation—Construction of Constitution—Protection of Settlers.—l'n view of the provisions of the state constitution discouraging the holdings of large tracts of uncultivated, and unimproved land by individuals and corporations, and that land “suitable for cultivation ” cannot be purchased by one not a settler thereon, school land, some portion of which in each subdivision is suitable for cultivation, cannot be purchased by one not a settler thereon; and the words “suitable for cultivation” must be held to apply to all tracts of land on which there is arable or tillable land sufficient, with the use of the other lands for pasture or otherwise, to furnish a permanent support to the settler.</p> <p>Id.—Construction of Political Code—Character of Legal Subdd visions.—The provision of section 3495 of the Political Code “that any smallest legal subdivision of school lands shall be deemed suitable for cultivation, if any part not less than half of its area will, without artificial irrigation, but with or without the clearing of timber or other growth therefrom, by the ordinary processes of tillage, produce ordinary agricultural crops in average quantity, ’ ’ is to be construed as merely providing affirmatively that land coming within that description shall be regarded as suitable for cultivation; but it cannot be construed as providing that land not coming within the description shall be held not suitable for cultivation, as that would render the act unconstitutional.</p> <p>Id.—Contest Between Settler and Other Claimants—Findings— Bbversal of Judgment.—In a contest between a settler, plaintiff, and other claimants not settlers, defendants, for the purchase of a tract of land comprising two hundred and sixty-eight and eighty hundredths acres, where the findings, with regard to each subdivision thereof, showed that there were small areas of open land clear of brush, and which may be further cleared, more or less, so as to be capable of cultivation, but that on no subdivision could more than one-half of the area be so cultivated; and, with regard to the tract as a whole, showed that not more than one-third of it was suitable for cultivation, and that plaintiff was an actual bona fide settler thereon, with actual possession limited to his house and its environs —a judgment for the defendants must be reversed, with directions to render judgment for the plaintiff.</p>

<p>Note Payable at Decease—Contract for Scholarship in College—■ Offer and Acceptance—Consideration.—A proposition in writing by a college to a woman, on the day of the execution of her note thereto, that it would establish in her name and for the benefit of herself and heirs a perpetual scholarship therein to be issued at her death, if she would execute thereto her note for the sum of one thousand dollars, to be paid at the city of the location on her death, and her acceptance thereof on said day, by executing and delivering her note for that sum to the college for that purpose, constitutes a valid contract. The note is supported by a sufficient consideration in the agreement on the part of the college; and the validity of the contract on her part was not affected by the fact that the note was to be paid at her decease.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jordan, Treat & Brann, and Macks & Tomsky, for Appellant.</p>

<p>Action for Services—Immaterial Judgment-roll—Evidence—Payment.—In an action to recover for services, the erroneous admission in evidence of a judgment-roll in another action, for the sole purpose of rebutting a claim of payment, is without prejudice to the defendant, if there was no proof of payment to rebut, and the judgment-roll had no other connection with the issue.</p> <p>Id.—Custom in Keeping Accounts.—In such action, the plaintiff may testify as to his custom in keeping his book accounts.</p> <p>Id.—Superintendent of Ranch—Disposition of Grain.—In an action to recover for services as superintendent of a ranch, it is not error to reject testimony as to the disposition of the grain raised upon the ranch after the defendant ceased to have any interest therein.</p> <p>Id.—Date of Bringing Action.—Oral evidence of the time of bringing an action is inadmissible, as the record is the best evidence of such date.</p> <p>Id.—Account for Services—Interest.—Under section 3278 of the Civil Code, a balance due for salary under a contract of employment at a specified amount per year, bears interest from maturity, as does also a balance due for wages, under a contract of employment to pay the reasonable value thereof per month.</p> <p>Statute of Limitations—Pleadings.—A plea of the statute of limitations is sufficient which refers to the particular section of the Code of Civil Procedure relied on, without designating the particular subdivision of that section under which the claim is asserted.</p>

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

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

<p>Quieting Title—Prescription Against City and County—Van Ness Ordinance—Trust not Shown.—In an action to quiet title to lands within the limits of the Van Ness ordinance of the city and county of San Francisco against an individual defendant and such city and county, where the plaintiff claimed title by prescription, and the court found adverse possession of the premises by plaintiff and his predecessors, and payment of all taxes thereon for more than ten years, and that the land was not reserved under the ordinance for any public use or set apart for any municipal purpose, the plaintiff was entitled to enforce his title by prescription against the city and eountyi as well as against the individual defendant, in the absence of any averment showing or finding that there was any previous possession of the property creating a trust in favor of anyone under the terms of the Van Ness ordinance.</p> <p>Id.—Trust to Convey Immaterial.—Neither the fact that the land was held by the city and county under a trust to convey, nor that the plaintiff might have enforced a deed, if he had proved possession by himself or by his predecessors - in interest under the terms of the Van Ness ordinance, could defeat the title acquired by virtue of his ten years’ adverse possession, nor justify the court in refusing to give him judgment against the city.</p>

<p>Assumpsit—Plage of Trial—Residence of Defendant—Conflicting Affidavit—Denial of Motion—Refusal of Renewal for Surprise—Discretion.—Where the defendant in an action of assumpsit, upon his appearance, demanded a change of the place of trial to the county of his alleged residence, and moved therefor upon his affidavit and that of his attorney, to which plaintiff filed counter-affidavit showing the defendant’s residence in the county of the venue, and no time was asked to reply to such counter-affidavit, a motion for leave to renew the motion on the ground of surprise, and evidence of facts corroborating defendant’s original affidavits, was addressed to the discretion of the court, and where no such abuse of discretion appears as should compel a reversal of its orders denying both motions, they will not be disturbed upon appeal.</p> <p>Id.—Complaint—Variance—Matters not in Issue.—Where the complaint in assumpsit was for the value of broom brush sold, board furnished, and labor done, it cannot support a judgment for the hire of a team, or for gasoline furnished, which were not within the issue.</p> <p>Id.—Labor Done—Intendments in Support of Judgment—Services of Minor Son.—In assumpsit for the value of labor done all intendments are in support of the judgment, and it may properly include the value of the services of a minor son of the plaintiff, to whose services and earnings he is entitled, when there is no claim that the minor son was paid therefor.</p> <p>Id.—Purchase of Standing Broom Brush—Breach of Agreement to Harvest and Pay for Crop—Maturity of Cause of Action.— Findings that defendant purchased the quantity of broom brush alleged while the broom corn was standing in the field, and agreed to cut, harvest and bale the crop at his own expense, and to pay therefor the agreed price on September 15th, and that plaintiff delivered possession of the crop to the defendant on or about August 1st, and that defendant wholly failed to comply with the contract on his part, and that all the broom corn was not baled when suit was brought, October 3d, owing wholly to the fault of the defendant, and that plaintiff had done every act required of him on his part when the action was brought, show that the action was not prematurely commenced.</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>Estates of Deceased Persons—Decree of Distribution—Error— Lapse of Time for Appeal—Conclusiveness.—A decree of distribution of the estate of a deceased person, which has become final oy failure to appeal therefrom within the time limited, however erroneous it may be, is conclusive upon all parties, and cannot be collaterally attacked on the ground of error therein. The same principles attach to a judgment of the superior court in a matter of probate, as to its judgment in actions at law or suits in equity.</p> <p>Id.-—Error not Reviewable in Equity.—For any error committed by the court in its decree of distribution, whether in matter of fact or in the application of the law to the facts before it, the party aggrieved must seek his remedy by appeal. Mere error is not a ground for relief in equity.</p> <p>tD.—Distribution to Trustee for Burial Lot—Perpetuity—Prohibition of Constitution—Action by Residuary Legatee.— Neither the fact that a trust for the perpetual repair and embellishment of a burial lot is prohibited by the provision of the constitution against perpetuities, nor the fact that the trustee to whom the trust fund for that purpose was distributed had no interest therein, can affect the eonclusiveness of the decree of distribution. No action will lie in favor of a residuary legatee, after the time for appeal from such decree has fully expired to compel the trustee to pay the fund to her, on the ground that said trust was in violation of the constitution.</p>

<p>Estates op Deceased Persons—Special Administrator—Settlement op Account.-—A special administrator is subject to the provisions of sections 1622 to 1627 of the Code of Civil Procedure, in regard to ‘‘ accounting and settlement by executors and administrators,” and may exhibit an account for settlement, pending his administration, and prior to the appointment of a regular executor or administrator.</p> <p>Id.—Hearing op Issues—Duty op Court—Mandamus.—Where issues were joined upon the presentation of an account by a special administrator, pending his administration, by objections presented thereto by heirs of the deceased and beneficiaries under his will, it was the duty of the court to hear and determine such issues, and upon its refusal to do so, mandamus will lie to compel action thereupon.</p>

D. K. Trask, Judge. The following are the instructions referred to in the opinion: “Instructions given at the request of the defendant: ‘‘II. If you find that the plaintiff was negligent in getting off on the side of the train away from the station and that the proximate cause of the accident was such negligence on the part of the plaintiff in alighting upon the side of the train away from the station, then you should find for the defendant.” “IV.

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

<p>State Lands—Contest—Statement of Grounds-—-Eights of Parties.—The contest over the purchase of state land arises where two persons make separate applications to purchase the same land. An applicant who contests the right of a 'prior holder of a certificate of purchase is not required to file a statement of the specific grounds of contest with the surveyor general. Either party to the contest may demand a trial in court, and after the contest is properly referred, either party may bring an action thereon.</p> <p>Id.—Pleading—Sufficiency of Complaint.—In an action by the contestant, a complaint setting forth his application and affidavit, and averring that he filed with the surveyor general his written protest against the application of the defendant and certificate of purchase issued to him, and demanded that the conflicting claims of plaintiff and defendant be referred to the superior court of the county, and that said officer declared a contest to exist, concerning the right to purchase said land, and that he thereupon duly made and entered an order referring said contest to said court, is sufficient, and, if proved, will entitle the plaintiff to judgment, if not countervailed by proof for the opposing party.</p> <p>Id.—Contest for Paid-up Certificate for Lieu Land.—A contest may be made by a subsequent applicant for the purchase of timber land not suitable for cultivation, which is lieu land, as indemnity for school land, not listed to the state or subject to patent, against the holder of a certificate of purchase who has paid in full for the land, but whose certificate states that “patent will not issue until after such lands have been confirmed to the state," and also “after having in all other respects [other than paying for the lands] complied with the requirements of the laws providing for the sale of said lands."</p> <p>In.—Effect of Certificate—Construction of Codes.—Section 1925 of the Code of Civil Procedure, making a certificate of purchase of state land ‘ ' primary evidence of title, ’ ’ is controlled by the later amendment of section 3514 of the Political Code making such certificate ‘ ‘ prima facie evidence, ’ ’ and under section 4481 of the Political Code, that section of the Code of Civil Procedure 'does not apply to special provisions of the title relating to the public lands, and their disposition. It is a cardinal rule of statutory construction that specific provisions on a particular subject control general provisions for the class to which the subject belongs.</p> <p>Id.—Statute as to Contest of Certificate—Entry in Violation of Law—Policy of Law—Proof of Requirements.—Section 3414 of the Political Code, providing for a contest “concerning a certificate of purchase, or . other evidence of title, ’ ’ makes no distinction between certificates partly paid or fully paid, and cannot be held as allowing an entryman to shield himself from the effects of an entry in violation of the statute, or to shut off investigation by simply paying in full for the land, or as allowing a departure from the policy of the law, that upon the contest of a certificate of purchase before the right to a patent has attached, the holder of the certificate must prove that the requirements essential to a valid application for the land have been complied with.</p> <p>Id.—Effect of Assignment of Certificate—Proof by Assignee.— Though a certificate of purchase, whether partly or fully paid, is assignable, yet investigation cannot be shut off in either ease by an assignment thereof, but the assignee, whether he has paid therefor or not, stands in the shoes of .the assignors, and if intervening to defend a contest against his assignor, must prove the facts set forth in the application and affidavit of his assignor, and show their truth, else he must fail.</p> <p>Id.—Notice of Fraud of Assignor—Pleading.—It was not necessary that the contestant plaintiff should allege or prove previous knowledge or notice to the assignee of any fraud on the part of the assignor in procuring the certificate.</p> <p>IS.—Failure of Evidence—Findings.—Notwithstanding averments of the assignee as intervener as to the assignor's right to purchase the land, yet, where there was no evidence adduced by him other than the certificate of purchase and the assignment, the court was authorized to find that he had no right to the land, and that plaintiff, who had proved his case, was entitled thereto. When a party alleges a material fact, and offers no evidence in support of it, the court is authorized, if it is denied, to find its nonexistence.</p>

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

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

<p>Beal Action—Cross-complaint—New Parties—Action upon Demurrer—Consent of Court.—Where one of the defendants in an action involving the title to real property disclaimed title except as to one lot, to which he claimed title, and with his answer filed a cross-complaint, without, asking permission of court, and besides the plaintiff made new parties defendant to the cross-complaint who were brought in, and plaintiff made no objection thereto, and consented to the prayer of the crossTComplaint, the action of the court in overruling the demurrer of new parties brought in will be taken as evidence of the consent of the court to the cross-complaint, and that the new parties were brought in under the authority conferred upon the court by section 389 of the Code of Civil Procedure, the property involved in the cross-complaint being that to which the action related.</p> <p>Id.—Discretionary Power.—The power of the court to bring in new parties for a full determination of title involved in the action is discretionary; and its exercise in bringing in new parties to a cross-complaint, to which the plaintiff is a defendant, will not be disturbed where the plaintiff made no objection thereto.</p> <p>Id.—Effect of Order Overruling Demurrer.—The effect of the order overruling the demurrer of the new parties defendant to the cross-complaint is the same as would have been an order denying a motion of the plaintiff to strike out the cross-complaint.</p>

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

<p>Fraudulent Conveyances—Deed by Insolvent Corporation to Designed Director—Preference—Delay of Other Creditors—Action by Assignee in Insolvency.—A deed by an insolvent foreign mining corporation of all of its mining property in this state to a creditor who was a director and president of the company, and who resigned for the purpose of taking such deed to prefer his debt, with knowledge of its insolvency, and with intent to hinder, delay and defraud other existing creditors of the corporation, which had no other property with which to pay them, was void as to such creditors, and as to the assignee in insolvency of such corporation, by the provisions of section 3439 of the Civil Code; and such' assignee may maintain an action to set the deed aside as fraudulent, notwithstanding it was executed more than thirty days before the filing of the petition in insolvency.</p> <p>Id.—Fraudulent Intent—Question of Fact—Burden of Proof Sustained.—In such a case the question of fraudulent intent is one of fact and not of law; and the burden of proof is upon the plaintiff to show that the deed was made for the purpose of hindering, delaying or defrauding creditors, or to prevent them from receiving their equal pro rata on their claims. Held, that, under the evidence, the burden of proof was sufficiently sustained, and supported the findings and judgment for the plaintiff.</p> <p>Id.—Fraudulent Preference of Director as Creditor.—A director of an insolvent corporation cannot receive to himself any preference or advantage over other creditors, in payment of his debt; and the same rule would apply with equal force to one who is a large creditor of the corporation of which he is director and the president, and who resigns to-day that he may to-morrow (secretly as to all other creditors) accept a conveyance to himself of the corporation property, to prevent a ratable distribution of the insolvent's assets among its creditors. Such a transfer does not come within the provisions of section 3452 of the Civil Code allowing a debtor to prefer one creditor.</p> <p>Id.—Trust Delation of Officers of Corporation.—The officers of a corporation occupy a trust relation as to-its property; and any transaction on the part of the directors which is tainted with fraud is voidable. A director cannot be permitted to throw off his trust relation for the purpose of giving himself an advantage over ordinary creditors, that he may take the property which he, as a director, had been holding in trust for all the creditors, and apply it on his own debt to their detriment.</p> <p>Id.—Evidence—Claims of Creditors Proved in Insolvency.—The claims of creditors proved in insolvency, the larger part of which was shown to be due before the date of the deed, were admissible in evidence.</p> <p>Id.—Action for Damages—Subsequent Judgment—Harmless Ruling.—Where an action for damages against the corporation was pending when the deed was executed, error in admitting in evidence the judgment subsequently rendered was not ground for reversal.</p> <p>Id.—Striking Out Answer not Responsive.—Where an answer to a question was not responsive thereto, it was properly stricken out.</p> <p>Id.—Deeds and Mortgages Admissible.—A deed made by the defendant of all the property to a bank, which was also a creditor of the insolvent corporation, and a subsequent reconveyance by the bank, and a mortgage taken by it to secure its debt, and another mortgage executed subsequently by defendant to another creditor, were admissible for the plaintiff as tending to show that the original deed to defendant was not made to secure all creditors of the corporation, as claimed by defendant, but was intended to hinder and delay all other creditors thereof.</p> <p>Id.—Hearsay Evidence—Memorandum of Claim—Harmless Error.— Where the amount of the indebtedness was shown by the approved claims in the insolvency proceedings, the admission of hearsay evidence as to the amount of a claim shown by a memorandum of a witness, made at a meeting of creditors, was not ground for reversal.</p> <p>Id.—Advice of Attorney for Creditor—Objection not Tenable— Harmless Ruling.—Where a paper purporting to relate to an agreement concerning the manner of paying debts was shown by a creditor to his attorney, who read it and returned it to the creditor, a question whether he advised the creditor in relation to it is not objectionable on the ground that it called for the opinion of a witness, and for a communication between attorney and client; but, inasmuch as to have answered the question would be of no advantage to the defendant, the ruling sustaining the objection was harmless.</p> <p>3D).—Note not Evidence of Indebtedness—Authority of. Corporation not Shown—Improper Affidavit—Oral Testimony.— Promissory notes of the corporation to the defendant were not admissible evidence of the indebtedness of the corporation to him, where the minutes of the corporation showing authority therefor, were not produced, and no properly certified copy thereof was offered in evidence. A copy of mere extracts, to which was attached an affidavit of the president that to the best of his knowledge and belief the said extracts are true extracts from the original minutes of several meetings, was not properly certified as required by subdivisions 6 and 7 of section 1918 of the Code of Civil Procedure, and was not admissible in evidence. Oral testimony was not admissible to prove the contents of the minutes.</p> <p>Ib.—Consideration oe Deed.—Evidence of the consideration of the deed to defendant was not admissible where no record evidence was shown to prove the consideration.</p> <p>Id.—Value oe Stock Held bt Corporation.—Evidence as to the value of certain stock in another corporation held by the insolvent corporation one year prior to the deed was immaterial.</p>

<p>New Trial—Appeal from Order—Amendment of Minute Entry— Recital of Facts—Record upon Appeal.—A court has authority to correct its records at any time, so that they may speak the truth; and the superior court, pending an appeal by defendant from an order denying his motion for a new trial, the minute entry of which, by clerical misprision of the clerk, recited that the motion came on to be heard, plaintiff's attorney appearing, "the defendant’s attorney failing to appear” (and which plaintiff’s attorney claimed upon appeal was evidence of an abandonment of the motion), has jurisdiction to correct the minute entry to make it speak the truth and show that another attorney named appeared for the person named as attorney for defendant; and a certified copy of such amended order may, upon suggestion of diminution of the record, be allowed to be filed-, in this court as part of the record upon such appeal.</p> <p>Id.—"Bill of Exceptions”—"Statement of the Case”—Review upon Appeal.—The fact that, in his intention to move for a new trial, defendant stated that the motion would be made upon affidavits and a "bill of exceptions,” to be thereafter prepared and settled, and the fact that the document settled bears the name of "engrossed statement of the ease,” and was allowed and settled as such by the judge before whom the case was tried, cannot preclude the use thereof upon appeal from the order granting a new trial, as well as upon an appeal from the judgment taken within sixty days after its rendition, where it contained particular specifications of insufficiency of the evidence, and set forth the exceptions taken at the trial in the same manner as would be appropriate in a bill of exceptions.</p> <p>Id.—Legal Effect of Document—Disregard of—Additional Grouping of Errors.—The legal effect of a document is to be determined by the matter which it contains, rather than by the name which it bears. The only distinction between a "bill of exceptions” and a "statement of the case” being that the latter, in addition to setting forth the exceptions taken at the trial, also sets forth the particular errors upon which the moving party relies, the mere fact that, in addition to the exceptions embodied in the instrument, it also grouped them together at the end, and specified them as errors of law committed by the court, does not impair its force as a "bill of exceptions,” and may be disregarded.</p> <p>Action for Breach of Contract—Exchange of Land—Encumbrance—Agency of Broker—Declarations of Agent—Unsupported Finding.—In an action for breach of a contract to pay off an encumbrance secured by deed of trust of plaintiff’s land, alleged to have been exchanged for defendant’s land, of which exchange defendant knew nothing until after suit was brought, and the basis for which was an agency for defendant by a real estate broker to effect the exchange, declarations of the broker that he was defendant’s agent were inadmissible; and, when admitted over defendant’s objection, could not be considered, or support a finding that the contract sued upon was made by defendant.</p> <p>Id.—Risk of Proof of Agency.-—One who deals with another upon his statement that he is the agent of a third person, takes upon himself the risk of being able to show that such agency existed; and if, instead of satisfying himself thereof by independent investigation, he accepts such statement, and is deceived, he is the victim of his own credulity.</p> <p>Id.—Certificate of Title of Defendant’s Land Furnished by Broker.—-A certificate of title of defendant’s land addressed in the name of the defendant, and furnished to plaintiff by the broker, in the absence of proof that defendant knew thereof or assented thereto, or was in some way connected therewith, was not admissible as tending to show that he was the agent of the defendant, or that plaintiff was justified in believing that he was such agent.</p> <p>Id.—Prior Negotiation by Broker—Purchase op Lots prom Dependant—Procurement op Blank Deed—Exchange not Authorized.—Where the broker, prior to the negotiation for exchange, had negotiated with defendant to purchase a block of lots from him within a year at $75 a lot, with privilege of taking one or more lots when he might dispose of them, the procurement and possession of a deed from the defendant, with a blank space left for the name of the grantee after the negotiations of the broker with plaintiff, which was filled with plaintiff’s name when delivered, only tended to show an authorized sale of the lands at the agreed price, and the delivery of the deed to an anticipated purchaser from the broker, and did not tend to show, or to authorize plaintiff to believe, that defendant had authorized the broker to purchase property for him or to exchange his property for that of plaintiff, or to enter into any contract binding him to assume the payment of any obligation of the plaintiff.</p> <p>Id.—Blank Deed prom Plaintipp—Unrecorded Deeds—Subsequent Negotiation with Dependant—Ratification not Shown.— Where the plaintiff had delivered a deed to the broker of his own property, with the name of the grantee left unfilled, making it subject to an encumbrance to secure his debt, when defendant’s deed was delivered to him and both deeds remained unrecorded, a subsequent negotiation, one year thereafter, between plaintiff, the broker, and the defendant, when the latter knew nothing of the existence of plaintiff's blank deed given to the broker, wherein it was agreed that the unrecorded deed to plaintiff from the defendant should be destroyed in order that defendant might sell all of his lands to a third person, and that defendant should repay to plaintiff the original price for the land deeded to him, which was so paid to plaintiff by defendant, such subsequent negotiation and payment does not tend to show a ratification by defendant of the exchange, or of the representations of an agency therefor, by the broker, of which defendant had no knowledge.</p>

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

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

The facts are stated in the opinion of the court. Further facts are stated in the opinion of the court upon appeal of plaintiffs reported in 1 Cal. App. 634, [82 Pac. 1063].

<p>Foreclosure of Mortgage—Collateral Security—Intervention to Recover Securities—Offer of Performance—Effect of Refusal.—In an action to foreclose a note and mortgage held by plaintiff as collateral security for a note of the intervener to plaintiff, and originally held by the intervener as collateral security for a note of the mortgagee to her, and assigned with such note as collateral security to plaintiff, in which action she intervened to recover her securities, where it appeared that at maturity of her note to plaintiff she offered to pay it, which offer was refused, such offer and refusal were sufficient to stop the interest on her note to plaintiff, without formal tender of payment, but not to extinguish the obligation, where the intervener did not deposit the money in bank pursuant to section 1500 of the Civil Code.</p> <p>Id.—Subsequent Offers Immaterial—Mistake of Intervener.—The fact that subsequent offers of performance were made and refused would not prejudice her rights under the first offer and refusal, and her mistake as to the effect of such tender and the time of the stoppage of interest is of no importance.</p> <p>Id.—Immaterial Finding Against Evidence.—An immaterial finding against evidence that the intervener did not assign to plaintiff as security the note of the mortgagee to her cannot affect the substantive rights of the intervener and the plaintiff.</p> <p>Ib.—Conditional Judgment for Intervener—Time of Payment— Modification upon Appeal.—A judgment for the intervener for recovery of the securities, upon payment of the principal sum of her note to plaintiff, should be modified upon appeal of plaintiff, by fixing a time within which such payment must be made, and providing that if she does not make the payment within such time, her intervention should be dismissed and the plaintiff should have leave to proceed with the foreclosure of the mortgage between the original parties.</p>

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

PETITION for Writ of Review to review the proceeding and judgment of the Superior Court of Siskiyou County, committing an insane person to Napa State Hospital. J. S. Beard, Judge. The facts are stated in the opinion of the court.

<p>Specific Performance—Action by Vendor—Reformation of Contract of Sale—Mistake—Omission of Promise to Pay—Support of Finding.—In an action by a vendor to reform a contract for the sale of his interest in land purchased by the defendant, by inserting a promise to pay the purchase money, which was omitted by mistake and to enforce specific performance of the agreement as reformed, a finding of such mistake is sustained by proof that the' purpose of the agreement was to effect a settlement between quarreling brothers by the defendant buying out and paying off the amount that plaintiff had invested in the land; and that the omission to insert an agreement to pay such amount cannot be accounted for on any other theory consistent with the evidence than a mistake and oversight of all concerned in the preparation of the contract.</p> <p>Ib.—Admission of Plaintiffs' Interest in the Land.—The fact that plaintiff had an interest in the land to the extent of the sum belonging to him, which had gone into the purchase of it, was admitted by defendant becoming a party to the contract of plaintiff to sell it to him.</p> <p>Id.—Identification of Exhibit not Admitted—Absence of Exception—Review upon Appeal.—A ruling of the court, permitting an exhibit to be marked for identification which was not admitted in evidence, and to which no exception was taken, is not a subject for review upon appeal.</p>

<p>Foreclosure of Mortgage—Statute of Limitations—Option to Mortgagor to Extend Time—Yerbal Acceptance.—An action to foreclose a mortgage which was brought within four years from an extension of time for one year, provided for in the mortgage, giving the mortgagor the privilege of renewing or extending the mortgage for one additional year from the expiration of the term of one year provided for therein, which was verbal, accepted by notice given thereof by the mortgagor to the mortgagee prior to the expiration of the first year, is not barred by the statute of limitations, though brought more than four years after the expiration of the original term.</p> <p>Id.—Written Proposition of Mortgagee—Effect of Acceptance— Written Contract Extending Time.—The provision in the mortgage for an extension of time was a written proposition on the part of the mortgagee which, upon the acceptance of it by the mortgagor, became a written contract on the part of the mortgagee extending the time.</p> <p>Id.—Extension of Note.—The agreement for the extension of the mortgage must be construed as involving necessarily the extension of the note secured thereby.</p> <p>Id.—Attorneys’ Fees—Discrepancy Between Finding and Judgment—Presumption upon Appeal.—Where the superior court found that $300 was a reasonable attorney's fee, but gave judgment for $350, it must be presumed upon appeal, in the absence of any explanation of the discrepancy, that the sum contained in the judgment was regarded by the court as a reasonable fee.</p> <p>Id.—Power of Court to Correct Clerical Error.—If the discrepancy is a mere clerical error, the court below has power to correct it, notwithstanding the affirmance of the judgment.</p> <p>Id.—Fees Provided in Note—Lien.-—'Where the note provided for attorney’s fees in ease of suit, they thereby became a part of the sum or sums secured by the mortgage, and were properly made a lien upon the mortgaged property.</p>

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

<p>Obiminal Law—Grand Larceny—Money Taken from Person—Petit Larceny—Question por Jury—Error in Instructions__Under a charge of grand larceny committed in taking the sum of $20 from the person of another with intent to steal, where the evidence left it in doubt whether the money was taken from his person with such intent, or W'hether it was taken from a purse while in defendant’s possession by assent of such person, express or implied, or taken from a table on which such person had left the money, the question of grand or petit larceny was for the jury to determine, and it was error for the court to take the question, of petit larceny therefrom by instruction that the only verdict must be guilty of grand larceny or not guilty, and by refusal to instruct them on the lesser crime of petit larceny.</p>

<p>Action to Quiet Title—Execution Sales—Inverse Order op Liens— Bedemption Under First Sale—Subordination op Title.—Where the plaintiff in an action to quiet title became the purchaser under execution sales made upon liens in the inverse order of their priority, and acquired title under all sales except the one first made on the latest lien, under which defendant made redemption and acquired a redemptioner’s deed, such deed merely passed the interest of the judgment debtor as of the date of the judgment lien under which it was acquired, which was subject to all prior liens then existing; and defendants’ title so acquired was subordinate to the title acquired by the plaintiff under the subsequent sales.</p> <p>Id.—Beceipt op Bedemption Money by Plaintipp not an Estoppel. The plaintiff was not estopped, by the receipt and retention of the redemption money paid by defendant to redeem from the first sale, to deny, the validity of the redemption, or its sufficiency to pass a complete title to the property as against the plaintiff. The redemption being valid, since plaintiff held no liens prior to that on which the first sale was made, and before the redemption all prior liens had been satisfied by subsequent sales, there is no necessity of invoking the doctrine of estoppel to sustain it.</p> <p>Id.—Eppect op First Sale Under Junior Execution.—Although, in some states, where there are several executions in the hands of the sheriff, any sale made under a junior execution is in effect a sale under all the executions, and the money is to be credited on the several liens in the order of their priority; yet according to the better opinion, in the majority, the senior liens, whether existing by judgment or otherwise, are not impaired by the sale, and the majority rule obtains in this state.</p> <p>Id.—Agreement por Sales Subject to Encumbrances.—Where it is understood and agreed between the parties in interest and the purchaser that he will take the property subject to prior encumbrances, the prior lienholders will retain their liens against the property; and one who redeems with full notice of such arrangement cannot by his redemption acquire any additional rights.</p> <p>Id.—Agreement por Several Sales and Distribution op Fund— Single Transaction.-—Where the several sales were made under an arrangement between the several judgment creditors for the distribution of the fund to be produced by such sales between them, they should be viewed as one transaction.</p> <p>Id.—Mistake of Law by Defendant—Condition of Relief to Plaintiff—Return of Redemption Money.—Where, independently of the arrangement made between plaintiff as purchaser and the several judgment creditors, the title first sold under the junior lien and acquired by defendant was of no value, and he would not have made the redemption but for the mistaken view of the law that he was acquiring a paramount title, under the circumstances of the case, the plaintiff should not have taken advantage of his mistake of law, and have taken the redemption money from the sheriff; and he should be required, as a condition of relief, to repay to defendant the amount paid for redemption, with interest.</p>

<p>Action upon Note—Pleading—Execution—Nonpayment—Denial fob Want of Information and Belief.—In an action upon a note, a denial by the defendant of its alleged execution and nonpayment for want of information and belief is insufficient to raise an issue thereupon.</p> <p>Id.—Note of Corporation—Consideration—Development Prior to Incorporation—Purchase of Deed for Stock.—Under a plea of want of consideration for the note of a corporation defendant it is held that such plea was justified in part, so far as it related to advances made by the payee to develop the property prior to its incorporation, under a bond for a deed held by four incorporators jointly, between whom it was agreed at the time of the incorporation that its whole capital stock should be equally divided, and, also, so far as it relates to advances made by the payee to procure a deed, which three of the corporators had agreed to pay for as part consideration of the issue of the 'stock to them, notwithstanding, after acceptance of the bond and deed by the corporation, such sums were credited in favor of the payee upon its books. (Smith, J., dubitante.)</p> <p>Ib.—Consideration Sustained in Part—Money Beceived and Applied by Corporation.—The note was sufficiently supported to the extent of money advanced by the payee prior to the incorporation, under an agreement that it should be repaid out of the first proceeds of the mine, and which was afterward received by the corporation and applied by it toward the payment of lienholders, and for further development of the mine and which was credited to the payee upon its books.</p>

<p>•Criminal Law—Murder—Conduct of Retired Juror—Diagram of Place of Killing.—After the jury, in a prosecution for murder, had retired for deliberation, any juror has a right to make a drawing or diagram of the place where the homicide was committed, if made wholly from his recollection of the testimony, for the purpose of more fully and graphically expressing what he understood the evidence to be, and his view upon the condition of affairs at the scene of the homicide, and the making of a diagram, so based, and which there was evidence to sustain, was not evidence received out of court, nor additional testimony to that received at the trial and could not have prejudiced the defendant.</p> <p>Id.—Instructions as to Manslaughter.—Where there was some evidence tending to show the killing to be manslaughter, from which the jury might have been induced to convict the defendant thereof, it was proper to instruct the jury in relation to that offense, and where the defendant was convicted of manslaughter, instead of the higher offense charged which there was also evidence tending to sustain, he was not prejudiced by such instruction.</p> <p>Id.—Sudden Passion upon Quarrel.—Where the evidence tended to show that there was a quarrel, it was not improper to instruct the jury that “while the purpose of intent and its execution may follow rapidly upon each other, it is proper for the jury to take into consideration the shortness of the interval, in considering whether such sudden and speedy execution may not be attributed to sudden passion and anger, rather than to deliberation and premeditation, which must characterize the higher offense.”</p> <p>Id.—Self-defense—Apparent Danger—Doubt of Jury—Instructions as to Circumstances.—Where the court had fully instructed the jury as to the law of self-defense in view of apparent danger of great bodily harm, it was proper for the court, in view of such instruction, and also of the evidence tending to show manslaughter, to instruct them in effect that if they were in doubt as to the precise circumstances under which the homicide was committed, or as to whether the deceased at the time of it was in fact about to inflict upon defendant great bodily harm, then they should take into consideration the previous relations between the parties, and their previous conduct toward each other, including their words and acts, and every fact and circumstance bearing upon that point of which evidence had been received.</p> <p>Id.—Verdict Supported by Evidence.—Held, upon review of the evidence, that the verdict for manslaughter was supported by the evidence, and that the testimony of the defendant that he shot the deceased because he was afraid he would kill or injure him was not conclusive that such fear was genuine or well-founded, in view of the circumstances proved.</p>

<p>APPEAL from a judgment of the Superior Court of Placer County, and from an order denying a new trial. J. E. Prewett, 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>State School Land—Contest—Failure to Return Summons—Dismissal—Motion of Intervener—Power of Court.—Upon the failure of the plaintiff in a contest for the purchase of state school land to servé and return the summons for the period of three years after the commencement of the action, the court had power of its own motion to dismiss the contest, and the fact that a motion for such dismissal was made by an intervener who was not then an interested party was immaterial.</p> <p>Id.—Judgment of Dismissal—Rendition—Entry in Minutes—Subsequent Judgment Signed by Judge.—The judgment of dismissal of the action became effective and final when the court rendered its decision dismissing the action in open court, and it was entered in the minute-book, and in the judgment-book by the clerk, on the day of its rendition, and was intended to be then effective. It was not necessary that the judgment of dismissal should be signed by the judge, and the entry of a judgment so signed two days later, without vacating the first entry, was ineffective.</p> <p>Id.-—Certified Copy of Judgment—Second Reference.—Upon receiving a certified copy of the entry of the first judgment of dismissal, the surveyor general was authorized to refer a new contest in favor of a new plaintiff and the original defendant.</p> <p>Id.—Application Pending Reference.—Pending the reference of a contest, the surveyor general had no power or right to receive the application of another person to purchase the land involved in the contest.</p> <p>Id.—Intervention—Appeal by Intervener.—It is not material to determine whether an intervention was improperly allowed, or whether the intervener had a right of appeal, where the findings in favor of the contestant and against the intervener are sustained by the evidence, and the judgment and order appealed from by the intervener must be affirmed.</p>

<p>Action by Coroner—Compensation for Inquests—Jurisdiction— Prayer of Complaint—Issues.—In an action by a coroner to recover compensation against the county for inquests held by him, where the complaint prayed for judgment in the sum of $588.25, with interest, and judgment was rendered therefor, upon issues joined by an answer, denying that anything was due, the superior court had jurisdiction of the cause, determined by the prayer of the complaint, and this court has jurisdiction of an appeal taken by the county, whatever concessions it may make in argument, or may have made upon the trial.</p> <p>Id.—Concessions in Appellant’s Brief—Jurisdiction not Affected. Concessions made in the appellant’s brief that a specified sum was due to the respondent, exceeding $300, does not, to the extent of such concession, render the judgment appealed from a consent judgment, nor affect the jurisdiction of this court.</p> <p>Id.—Effect of Stipulation at Trial—Issues not Changed.—Issues having been joined by the answer upon the whole amount claimed in the complaint, a stipulation at the trial that the only dispute was as to the necessity and jurisdiction of the coroner to hold fourteen inquests upon the bodies of persons named, and the plaintiff should have judgment by consent as to the matters not disputed, did not change the issues joined nor reduce the amount in issue, so as to affect the jurisdiction of the superior court or of this court.</p> <p>Id.—Authority of Coroner to Hold Inquests.—If the coroner has reasonable ground to suspect that the death or killing of a person was sudden and unusual, and of such a nature as to indicate the possibility of death by the hand of the deceased, or through the instrumentality of some other person, he has authority to hold an inquest. He has latitude in determining whether the case falls within section 1510 of the Penal Code. He may act upon information; and it should not be held that, merely because it has be-en determined that the deceased died a natural death, he had no right to hold an inquest.</p> <p>Id.—Inquest Held by Justice of the Peace—Presumption—Unauthorized Inquest by Coroner.—If a justice of the peace has held an inquest upon a body, it must be presumed, in the absence of evidence to the contrary, that he discharged his duty in the premises; and where such inquest is not shown to have been unlawful, the coroner cannot recover compensation for an inquest subsequently held by him. upon the same body.</p>

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

<p>Separate Action Upon Note Secured by Mortgage—Releases anu Satisfaction by Mortgagee—Agreement With Other Makers— Nonsuit.—In a separate action by the executors of a deceased payee of a note against one of the makers, where it appears that the note was secured by mortgage of even date, and that the mortgagee, without the knowledge or concurrence of the defendant, had from time to time executed releases and satisfaction of the mortgage upon lots sold, until the amounts acknowledged to have been received by the mortgagee were sufficient to satisfy the note and mortgage, but that by arrangement with the other makers, unknown to defendant, it was agreed that the money was not actually received by the mortgagee, a nonsuit was properly granted. The case is peculiarly appropriate for the application of the rule that a separate action cannot be maintained upon a note secured by mortgagee.</p>

<p>Habeas Corpus—Commitment 'of Dependent Child Without Jurisdiction—Insufficient Petition in Juvenile Court.—A superior court, sitting in special session as a juvenile court, under the act of February 20, 1903, acted without jurisdiction in committing a female child fifteen years of age to special custody, under an insufficient petition, merely alleging that the child was dependent under said act in this, “that said child is without proper guardianship, and her home is an unfit place for said child,” without alleging any acts “of neglect, cruelty or depravity,” on the part of the parents, guardian or other person in whose care it may be. The father of said child is entitled to its release from such custody upon habeas corpus.</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 Los Angeles County, and from an order denying a new trial. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Robbery—Identity op Dependant—Support op Verdict.—A verdict of guilty of the crime of robbery committed by the defendant is fully supported by evidence that the robbery was committed by two men described like defendant and his brother, that they were unquestionably in the vicinity of the robbery when it occurred, that they had in their possession when arrested, or had sold between the date of the robbery and the arrest many articles taken from the person robbed, and that the clothing of the robbers, and the size and appearance of the men engaged in the robbery, completely identified the defendant with such robbery.</p> <p>In.-—Evidence—Possession op Stolen Articles not Pleaded—Identification.-—Evidence showing defendant's possession of articles belonging to the person robbed and taken from him by the robbers, though not specified in the information, was admissible for the purpose of identification of defendant with the commission of the robbery.</p> <p>Id.—Absence op Request Limiting Evidence—Charge op Court.— Where no request was made at the trial for an order to limit such evidence to its legitimate purpose of identification, defendant will not be heard to complain upon appeal that it was not so limited, especially where, without such request, the court charged the jury that such evidence was received for the purpose of identification only.</p>

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

<p>Specific Performance—Contract to Sell Real Estate—Certainty. A contract for the sale of land signed by the owner and dated, acknowledging receipt of $100 from the purchaser paid to biud the bargain and sale of the land fully described, said sum "to be considered and accepted as part of the purchase price of said sale, which is $5,500, less commission,” is not too uncertain to be the subject of specific performance at suit of the purchaser.</p> <p>Id.—Time of Payment—Delivery of Deed.—The fact that no time of payment of the residue of the purchase money is specified does not render the contract uncertain, since under section 1657 of the Civil Code such money is to be deemed payable upon delivery of the deed.</p> <p>Id.—Amount of Commission Ascertainable.—The amount of commission specified in the contract is ascertainable, especially where its certainty in amount is undisputed.</p> <p>Id.—Certificate of Title—Implied Representation of Vendor.—The contract is not uncertain because no certificate of title is provided for. The vendor by his agreement to sell was in duty bound to furnish a good or marketable title, and impliedly represented that he had such title free from litigation, palpable defects and grave doubts, and fairly dedueible of record.</p> <p>Id.—Application of Purchase Money to Cure Defects.—The court in enforcing specific performance properly allowed a deduction in the residue of the purchase money to be applied toward reimbursing plaintiff in curing certain defects, loss rents received, and to pay the necessary costs and penalties required to redeem the property from tax sales.</p> <p>Id.—Implied Finding as to Reasonableness of Sum Paid.—While the court did not in terms find that the amount expended by plaintiff to remove defects was a reasonable sum, its order and judgment in relation thereto will be taken as impliedly finding such fact.</p>

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

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

<p>Deed in View of Death—Delivery to Grantee—Intention of Grantor—Donatio Causa Mortis.—A deed of land executed by the grantor in view of impending death, and delivered to the grantee, is of itself conclusive as to the intention of the grantor. The doctrine of donatio causa mortis applies only to personal property, and where no facts are pleaded, proved or found tending to raise a trust in favor of the grantor, the title passed absolutely to the grantee by delivery of the deed as against the heirs of the deceased grantor.</p>

<p>Criminal Law—Murder—Statements of Deceased in Presence of Defendant—Silence of Defendant.—Upon a trial for murder of a ■ policeman, statements made by the deceased, in the presence and hearing of defendant and his associate after their arrest for the murder, that the associate had first attacked him, and that he grappled with him, whereupon defendant took something from his pocket, and shot him twice, were admissible, not as independent proof, but as calling for a reply in connection with proof that they were not prevented from making a reply, and that neither of them made any response to such statements.</p> <p>Id.—Notice por New Trial—Newly Discovered Evidence—Affidavit of Associate—Discretion.—An affidavit made by the associate, who had been convicted of manslaughter, that he would testify upon a new trial, if granted to the defendant, that he had fired the fatal shots in self-defense, when there can be no doubt, from the evidence, that each of the men knew every fact and circumstance known by the other, cannot be said to constitute newly discovered evidence. The motion for a new trial, on that ground, was addressed to the discretion of the court, and it cannot be said, in view of the record upon appeal, that it was an abuse of discretion to refuse to grant a new trial based upon such affidavit,</p> <p>to.—Removal of Disability of Witnesses.—The fact that upon the first trial of the defendant, prior to the conviction of the associate for manslaughter and his acquittal for murder, the associate might have been protected from testifying for defendant that he fired the fatal shot on the ground that it would tend to convict himself, and that he could give such testimony with impunity upon a new trial of the defendant, does not conclusively entitle the defendant to a new trial.</p>

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

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

F„ H. Smith, Judge. The facts are stated in the opinion of the court, and in the opinion in 144 Cal. 652, therein referred to.

<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 an order of the Superior Court of San Joaquin County settling the account of an administrator. Frank H. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Water Bights—Basement—Natural Blow of Surface Water— Definite Channel—Injunction.—An owner of upper land has an easement over the lower adjacent land to discharge surface water as it is accustomed naturally to flow in a definite channel, which is the result of natural causes, or artificial aid of natural causes, which does not injuriously affect the adjacent land, and may enjoin interference with the natural flow of the water in such definite channel by the owner of the adjacent land.</p> <p>Id.—Support of Findings—Natural Watercourse—Adaptation for Drainage—Prescriptive Use of Ditch.—Where all the features and characteristics of a watercourse clearly appear, and findings as to the watercourse and its natural adaptation for drainage of riparian land are supported by the evidence, and are sufficient to support the judgment for plaintiff, it is immaterial whether a finding that a ditch cut by plaintiff (which had for its object to shorten the flow of water into the watercourse) was in adverse use for more than the statutory period was or was not sustained by the evidence.</p>

<p>Action to Quiet Title—Plea of Fraudulent Transfer—Insufficient Answer.—In an action to quiet title derived from a grantee of a firm, an answer setting up a pending action against such firm upon a note, and that if defendant obtained judgment therein he would bring another action to set aside the transfer as a fraud upon the creditors of the firm, which did not state the facts rendering the transfer fraudulent, nor that the debt evidenced by the note sued upon accrued before the transfer was made, nor that the defendant was, or could be, in a position to bring an action to set it aside, is insufficient to state a defense.</p> <p>Id.—Fraud not Presumed—Pleading and Proof—Support of Finding-Consideration of Deed.—Fraud is odious, and is never to be presumed. Parties seeking to annul a contract or transfer for fraud must clearly plead and prove the facts constituting legal fraud, actual or constructive. Where a fraudulent transfer was neither pleaded nor directly proved, a finding negativing it is supported, and is not assailable by inference from the smallness of the consideration expressed in the deed from the grantee of the firm to the plaintiffs, which cannot concern the defendant suing as creditor of the firm.</p> <p>Id.—Quieting Title Against Asserted Claim of Fraudulent Transfer.—An action will lie to quiet title of the plaintiffs against an asserted right of a defendant based upon a fraudulent transfer.</p> <p>Id.—Trial not to be Deferred.—The court was not required to defer the trial of the cause until the suit brought upon the note and the suit intended to be brought to set aside the transfer to plaintiffs had both been determined.</p> <p>Id.—Judgment Quieting Title—Ancillary Injunction—Effect as an Estoppel—Review upon Appeal.—Upon appeal from a judgment quieting the title of plaintiffs against the adverse claim of appellant, and awarding an injunction as ancillary to the principal relief granted, against any further adverse claim, or the maintenance of any action to throw a cloud upon plaintiff’s title, this court will not in advance determine the effect of the injunction as an estoppel from bringing a future action to contest the validity of the transfer to plaintiffs; but if the merely ancillary injunction was unnecessary to make the relief granted to plaintiffs effectual, it could not injure the appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Tuolumne County, and from an order denying a new trial. George W. Nicol, 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>APPEAL from an order of the Superior Court of Sacramento County, changing the place of trial of an action by the state. J. W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney General, and George A. Sturtevant, Deputy Attorney General, for Appellant.</p>

<p>Action fob Death—Negligence of Street Railroad Company—Contributory Negligence—Improper Nonsuit—Construction of Evidence—Questions of Pact.—In an action for death caused by negligence of a street railroad company, a motion for a nonsuit for contributory negligence of the deceased admits plaintiff’s evidence, and every dedueible inference of fact therefrom, and such evidence must be viewed most strongly against the defendant, and most favorably to the plaintiff, without regard to the credibility of plaintiff’s witnesses, or conflict between them as to the facts; and where there is some evidence tending to sustain the action, and where the questions as to the reasonableness of the efforts of the deceased to escape injury, after the discovery of his danger, and as to wanton negligence of the defendant in failing to avoid the accident after the discovery of the peril of deceased, were questions of fact, which should have been submitted to the jury upon plaintiff’s evidence, the motion for a nonsuit was improperly granted.</p> <p>Id.—Rules of Negligence in Case of Street Railroads.—In applying the principles relating to negligence, contributory or otherwise, the courts recognize a distinction between eases of injuries by street railroads and cases of injuries by ordinary steam railroads running through the country at long intervals. The question of what is ordinary prudence is widely different in the two cases,</p> <p>to.—Bight to Stand upon Street-cab Track.—The deceased had the right to stand upon the street-car track; and where, in the present case, it appears that his duty called him there, the defendant cannot be heard to complain that he was standing upon the track.</p> <p>Id.—Excusableness op Action of Deceased in Peril.—Deceased, having been suddenly placed in great peril, while standing on the street-car track, by the rapid approach of an electric car without warning, was not required to exercise all that presence of mind and watchfulness which are required of a careful and prudent man under ordinary circumstances, and was excusable for omitting some precautions, or in making an unwise choice under this disturbing influence.</p> <p>Id.—Duty of Motorman to Avoid Injury.—If deceased was negligent, and the motorman had the last clear opportunity to avoid the injury by stopping the car, it was his duty to do so.</p> <p>Id.—Sufficiency of Complaint—General Demurrer—Proof Bequired.—Where the complaint charged that defendant, by its agents and servants, “carelessly and negligently, and willfully and wantonly, ran one of its street-cars upon, knocked down, ran over and killed” the deceased, a general demurrer thereto was properly overruled, there being no special demurrer on the ground of ambiguity. There may be carelessness, negligence, willfulness and wantonness at the same time; though it is not necessary to prove them all to sustain the action merely because the manner of doing the act is charged in the conjunctive. The plaintiff may show un.der the complaint what happened, and recover accordingly.</p>

<p>Taxation—Assessment op Money Held in Escrow by Trust Company.—Money held in escrow by a title guaranty and trust company, as agent or trustee for the owners and purchasers of various tracts of land whose title it had been employed to pass upon, to be paid to the owners or returned to the purchasers, with deduction of charges, according to the result of the search, and deposited by it in a commercial bank, was properly assessable for taxation to such company alone, in the absence of information to the assessor of the names of the beneficiaries or various parties interested in the fund.</p> <p>Id.—Deduction on Account op Debts Due not Allowed.—The property so taxed to the trust company was not subject to any deduction on account of debts due to the beneficiaries. Its obligation to the various parties interested in the fund was not that of a debtor, but of agent or trustee of the various parties interested in the fund.</p> <p>Id.—Opportunity to Correct Assessment.—The failure of the assessor to designate the principals or beneficiaries did not invalidate the assessment, since the trust company had the opportunity of correcting the assessment, if in any way harmful to it, by application to the assessor, while the assessment-roll was in his hands, and afterward by application to the board of equalization which had power to correct it, or to transfer the whole amount taxed to the several parties interested in the fund.</p> <p>Id.—Belief After Payment of Tax.—It was not material that the trust company had no opportunity to apply to the board of supervisors until after its property was levied upon and the tax paid under protest. The board could grant all the relief that it was entitled to, so as to show the parties ultimately liable for the tax, as effectually after payment as before.</p>

<p>Costs upon Appeal—Judgment op Supreme Court—Power op Trial Court.—Where, upon a judgment of reversal in the supreme court, a judgment for costs of appeal is docketed in conformity with rule XXII of that court, and section 958 of the Code of Civil Procedure, the trial court has no power to vacate it; but in so far as it has been docketed against respondents as to whom the judgment was affirmed by the supreme court, the trial court had power to set it aside, so as to make it conform to the decision upon appeal.</p> <p>Id.—Judgment Appirmed in Part and Reversed in Part—Insolvency op Respondent.—Where the judgment was affirmed in part and reversed in part, as to a particular respondent, he is liable for the costs of appeal; and his discharge in insolvency proceedings does not relieve him from such liability. In any event, the trial court was powerless to relieve him from the effect of the judgment rendered by the supreme court.</p>

<p>PETITION for writ of mandate to the Superior Court of Amador County. R C. Rust, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tuolumne County, and from an order denying a new trial. R. C. Rust, Judge presiding.</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 Nevada County, and from a conditional order that judgment be entered for respondent. J. W. Hughes, Judge presiding. The facts are stated in the opinion of the court.

<p>Criminal Law—Murder of Infant Child Born—Sufficiency of Information.—An information charging the unlawful murdering and killing of a human being, "the infant unnamed female child” of defendant and his wife, "the said infant child being the child born” to them "on or about” the date of the alleged murder, is not uncertain as to the offense charged.</p> <p>Id.—Insufficiency of Evidence—Confession—Corpus Delicti not Independently Shown.—Where the only proof of guilt consisted of a confession or admission of the defendant, and there was no independent proof of the existence of a corpus delicti in connection with the birth and death of the child, a conviction of manslaughter cannot be sustained.</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 Los Angeles County, and from an order denying a motion for a new trial. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Eminent Domain—Condemnation of Eight of Way fob Railroad— Public Use—Presumption.—The right of eminent domain exists in behalf of a steam railroad company to condemn a right of way therefor, which must be presumed to be a public use; and the burden of proving the contrary is upon the defendant.</p> <p>Id.—Question of Public Use—Special and General Statutes—Evidence—Power of Courts.—Railroads established by special act of the legislature concern the public interest as matter of legal judgment; but, where the public use is declared by general statute, connecting many objects thus designated, it may be shown by the owner of the land, by extrinsic evidence, that the use is in fact private; and the courts may determine from all the circumstances whether or not in the particular case the purpose is a public use.</p> <p>Id.—Necessity fob Taking—Burden of Proof.—Under section 1241 of the Code of Civil Procedure, providing that “before property can be taken, it must appear: 1. That the use to which it is applied is a use authorized by law; 2. That the taking is necessary to such use”—the burden of proof is upon the plaintiff to show that the taking is necessary to the public use.</p> <p>Id.—Extent of Public Usf—Common and Local Benefits.—The public use required need not be of the whole state, or any considerable portion of it, but the use and benefit must be in common, not to particular individuals. Every public use is in more or less degree local, and benefits a particular section more than others. This is true of railroads, as well as of ordinary highways.</p> <p>Id.—Length of Railroads—Short Branch.—Neither the length of the road nor the fact that it is a short branch or spur bears any necessary relation to the question of public use, except possibly as a circumstance bearing upon the alleged fact that the road is solely for the private use of plaintiff. Short roads as connecting links between independent railroad systems, or as branches and feeders to established systems, are often necessary, and fall within the general rules governing condemnation as completely as main lines of road. It is the public purpose that is to govern, and not the length of the road, or the manner of its connection with another road or roads.</p> <p>Id.—Construction of Code—Articles of Incorporation—Road Less Than One Mile—Evidence.—Section 468 of the Civil Code requiring a railroad corporation after beginning the construction of its road to complete and operate at least five miles thereof each year, until it is completed, is not to be construed as limiting the right to construct a road to one less than five miles in length, but only as requiring a compliance with the statute when the road is five miles long or more. The articles of incorporation of the plaintiff railroad showing that it is less than one mile in length are not for that reason inadmissible in evidence.</p> <p>Id.—Longitudinal Right of Way on Public Roads—Legislative Grant.—Whatever the rule might be otherwise, the legislative grant to railroads in this state to construct their roads across, along or upon any avenue or highway, on condition of restoring the same to its former state of usefulness as near as may" be, or so that the railroad shall not impair the usefulness or injure its franchise, authorizes the appropriation of a highway longitudinally.</p> <p>Id.—Incorporation—Good Eaith of Corporators—Collateral Attack.—The incorporation of the plaintiff having bden proved and conceded, it can be directly assailed only by proceedings in quo warranto; and the good faith of the corporators is not the subject of collateral attack to affect the validity of its corporate existence, or its right to exercise the power of eminent domain for a public use. If the use is shown to be private, condemnation will be refused, regardless of the general right of the corporation to condemn by virtue of its eoip orate existence.</p> <p>Id.—Franchise Granted to Granite Company—Injunction—Waiver —New Franchise—Transfer to Plaintiff not Applicable.— Where a franchise to construct a railroad along a highway was granted by the supervisors of the county to a granite company not organized as a railroad company, and it was enjoined from exercising it, and a new franchise was granted to plaintiff railroad company to construct its road along the same highway, and the granite company, waived its franchise, section 490 of the Civil Code, regulating transfers of franchises from one railroad company to another, is inapplicable; and the county cannot complain that plaintiff is violating the rights of the granite company.</p> <p>Id.—Joinder of Stockholders of Granite Company in Bailroad Company—Marketing of Product.—The fact that the stockholders of the granite company also became stockholders in the railway company, plaintiff, and that the incorporation was designed to enable the granite company to market its product does not prove a private use, nor render the use less public, where the road is open to the public, to be used upon equal terms by all patrons.</p> <p>Id.—Corporation Formed to Build Branch Boad—Bight of Condemnation.—Our statute does not define “steam railroads,” nor make a distinction between main lines and branches. A corporation may be formed to build a particular road which will connect with another road and become a branch thereof; and such corporation has the right to condemn land for its right of way.</p> <p>Id.—Conflicting Evidence—Support of Findings.—Where the evidence was conflicting as to whether the construction of the road of plaintiff along the highway practically destroyed its usefulness to the defendant granite company as an abutting owner and user thereof, or as to whether the use of the road by plaintiff was public or private, the findings in favor of the plaintiff will not be disturbed upon appeal.</p> <p>Id.—Deposition of Secretary of Plaintiff Taken by Defendant— Copies of Corporate Becords—Evidence for Plaintiff.—A deposition of the secretary of plaintiff corporation, taken by defendant before the trial, in which were incorporated copies of the records called for by the defendant, may be read in evidence by plaintiff; and such copies are as admissible for plaintiff as any other part of the deposition; and it cannot be objected that they were not the best evidence, and that the original records should be produced.</p> <p>Id.—Demand por All Books and Papers.—A demand made by the defendant for all the books and papers of the corporation was unauthorized; and where there was no sufficient showing by affidavit or otherwise that records and papers not appearing in the deposition were material to defendant’s defense, and the general purpose which the records were intended to establish appeared in the course of the trial, the omission of other records and papers cannot affect the validity of the deposition.</p> <p>Id.—Deposition Subject to Objections—Incompetent Evidence— Judgment op Witness.—The deposition may be read by either party subject to all legal objections except the form of his interrogatory; and a question calling for the “deliberate judgment” of a witness as to a matter, and not the facts as to the matter, was properly excluded as immaterial and incompetent.</p> <p>Id.—Incompetent Evidence as to Damage.—Upon the question of damages to defendant company for the taking of the right of way, evidence of the condition in which the highway was left by plaintiff’s grading at points other than along the land of defendant company, over which the right of way was sought to be condemned, for the purpose of enhancing the damages, was properly excluded.</p> <p>Id.—Evidence op Damages in Previous Condemnation op Private Road—Limitation—Harmless Rulings.—It was not error to admit testimony for plaintiff to show the damages allowed in the previous condemnation suit for a private road, along which the right of way was sought to be condemned, where it was limited to the value of the land upon condition that the value had not changed, the court holding that a different element entered into the matter where the taking was for a railroad, and the damage might be different. Under the limitation made by the court, the testimony worked no injury to defendant.</p>

<p>Mortgage—Adjudication in Bankruptcy op Mortgagor—Mortgage not Discharged—Assumption op Debt by Vendee.—An adjudication in bankruptcy of the mortgagor does not discharge the mortgage; and a vendee of the mortgagor, who had assumed to pay the mortgage note according to the terms and conditions thereof, could not, in any event, claim a discharge of the mortgage debt thus assumed, by reason of the mortgagor’s subsequent adjudication in bankruptcy.</p>

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

<p>APPEAL from a judgment of the Superior Court of Riverside County, and from an order sustaining a demurrer to the complaint. B. F. Bledsoe, Judge, presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. N. H. Conklin, 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>Foreclosure of Mortgage—Sale—Redemption of Parcel—Void Offer by Owners.—An offer by the owners of a small part of the lands sold under foreclosure of a mortgage to pay to the commissioner the amount which the mortgagee paid for that particular part of the land at the foreclosure sale, with interest thereon at the rate mentioned in the mortgage, without including taxes, costs or the amount due a prior redemptioner, or paying any money, and which was conditioned on the execution of the commissioner’s deeds to them—even if it could be treated as a formal tender by persons entitled to redeem—did not conform to the requirements of sections 701-703 of the Code of Civil Procedure, and was wholly void.</p> <p>Ib.—Action to Quiet Title—Validity of Prior Redemption—Rights of Creditors not Parties.—In an action by the owner of such parcel to quiet title thereto, involving the validity of a prior redemption of the mortgaged property sold under foreclosure by a subsequent mortgagee of one of the original mortgagors, who were tenants in common, where it appears that the interest of such subsequent mortgagee was acquired long prior to the interest of plaintiffs-in such parcel, the prior redemption must be deemed valid as to-them. They are not concerned with, nor can this court pass upon, the rights of creditors of the cotenant mortgagor, not parties to-such action, who might possibly object to the validity of such mortgage.</p> <p>Id.—Plaintiffs not Helped by Invalidity of Redemption—Rights of Original Mortgagee as Purchaser.—If the prior redemption was void, it could not help the plaintiffs as against the rights of the original mortgagee defendant, holding as purchaser at the sale, as well as assignee of the certificate of redemption. If the redemption was void as to the redemptioner, it was void in toto, and would not devest the title acquired by the original mortgagee as purchaser at the sale.</p> <p>Id.—Invalidity of Assignment of Certificate—-Plaintiffs not Beneficiaries.—The plaintiffs having neither paid nor offered to pay the amount necessary for the redemption of the property to any person, can derive no benefit or title from the invalidity of the assignment, of the certificate of prior redemption to the defendant, to which plaintiffs were strangers. Th.ey cannot become beneficiaries if the certificate of redemption was improvidently issued or improperly assigned.</p> <p>Id.—Reception of Redemption Monet by Defendant—Error not Shown—Presumption upon Appeal.—It is the duty of an appellant to show error affirmatively, and where the record upon appeal by the plaintiffs from a judgment in favor of the defendant does not show that defendant ever received the redemption money paid to the commissioner, such reception cannot be presumed. If the money was not received, the validity of the assignment of the certificate of redemption to defendant would be of no moment; and any intendment or presumption indulged must aid the conclusion of the trial court.</p>

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

W. L. Vestal, City Recorder. The facts are stated in the opinion of the court, and in the opinion of Benjamin F. Bledsoe, judge of the superior court, therein referred to.

<p>"Water Right—Injunction—Extent op Easement in Pipe-line—Adverse User—Construction op Findings.—Where a complaint to enjoin defendant from interfering with a pipe-line and water carried thereto for irrigation on plaintiff's land alleged facts showing the right of plaintiff to carry through the pipe-line forty inches of water for four days each month during the irrigating season, and the court found a customary use to that extent, and also found an adverse use of the water necessary for irrigation of plaintiff’s lands for five years, the findings are to be read together, and sufficiently establish an easement and ownership in plaintiff to the extent claimed.</p> <p>Id.—Certainty op Findings—“Miner’s Inches”—Maxim—Customary Measurement op Water.—The findings are not uncertain because the “forty inches” of water are not specified as “miner’s inches.” That is certain which can be made certain, and if any particular kind of water measurement has been in use in that locality, such customary measurement would apply in determining the extent of plaintiff’s ownership in the carrying capacity of the pipeline.</p> <p>Id—Finding op Continuous Use.—A finding that for more than five years plaintiff and others used the same as often as required for irrigating purposes is a sufficient finding as to continuous use, having the character of the use in view; and a finding that for more than five years the use by plaintiff was uninterrupted comprehends a continuous use to the extent required.</p> <p>Id.—Amended Complaint—Presumption—Finding op Adverse User— Relation to Commencement op Action.—An amended complaint falls into the place of the old complaint, and performs the same functions; and, in the absence of a showing to the contrary, it will be presumed in favor of the findings and judgment that the original complaint presented the same issues and claim of right; and a finding of adverse user for more than five years will be presumed to fix the time of the beginning of the adverse user more than five years before the commencement of the action.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County, and from an order denying a new trial. J. W. Taggart, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Thomas O. Toland, E. W. Squier, and John J. Squier, for Appellants.</p> <p>B. F. Thomas, Richards & Carrier, and Cushing, Grant & Cushing, for Respondents.</p>

<p>Criminal Law—Order Sustaining Demurrer to Indictment—Appeal by People—Absence op Bill op Exceptions.—Upon appeal by the people from an order sustaining defendant’s demurrer to an indictment, which also directed the resubmission of the cause to the next grand jury, in the absence of a bill of exceptions, there is no proper record upon which the order sustaining the demurrer may be reviewed, or any error therein ascertained, and the order must be affirmed.</p>

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

<p>Ejectment—Bents and Profits—Pleading—Joinder of Causes of Action—Commingled Statement—Demurrer.—A cause of action to recover the possession of real property may be united with a cause of action to recover the rents and profits thereof, and the fact that they are commingled and not separately stated is not ground of demurrer to the complaint.</p> <p>Id.—Trust Belation of Defendants to Plaintiff—Statute of Limitations—Admission upon Demurrer.—Where the complaint shows the existence of a trust relation, between plaintiff and the defendant, which was repudiated within the statute of limitations, the facts admitted upon demurrer to the complaint preclude the ground of demurrer that the cause of action is barred by the statute.</p> <p>Id.—Grounds for Equitable Relief—Repudiation of Right of Purchase—Adverse Claim—Quieting Title.—Where it appears from the allegations of the complaint that defendants, after having obtained possession under an option to purchase the property, on which part of the purchase price had been paid, repudiated the contract, under which possession was held, and refused to pay the balance of the purchase money which would entitle them to the property, and asserted an adverse claim thereto, the facts admitted upon demurrer are a ground for equitable relief, and to quiet plaintiffs ’ title.</p> <p>Id.—Extension of Option to Purchase—Revocation upon Notice— Commencement of Action.—The indefinite extension of the option to purchase the property was a privilege given by the plaintiff which he might revoke upon notice, and the bringing of the action is a sufficient notice that the option has been terminated.</p>

<p>Habeas Corpus—Commitment of Minor to Whittier State School— Several Complaints—Support of Warrant.—When a warrant of commitment of a minor to the Whittier State School for juvenile offenders is by its terms based upon a first complaint filed, in the superior court, a copy of a second complaint filed at a later date, appended to the warrant, and of a third complaint, filed still later, introduced at the hearing upon habeas corpus, can neither of them be treated as supporting the warrant.</p> <p>Id.—Insufficiency of First Complaint—Prior Decision upon Habeas Corpus.—Where the first complaint upon which the warrant was based was before this court upon a former application for a writ of habeas corpus, and was then held insufficient to support a commitment, it will be held insufficient for the reasons stated in that opinion.</p> <p>Id.—Insufficiency of Second Complaint—Absence of Averment— Incorrigibility—Description in Prayer.—The second complaint appended to the warrant, which fails to aver that the home of the prisoner is an unfit place for her for any reason, or that she is incorrigible, or a vagrant, or to aver any fact, bringing the minor within the terms of the statutes (Stats. 1905, pp. 81, 806), is insufficient. The fact that in the prayer of the complaint the prisoner is described as “an incorrigible minor” is immaterial, such description not being sufficient to support a charge of perjury against the person swearing to the complaint.</p> <p>IP.—Insufficiency of Third Complaint—Age Limit Exceeded.—The third complaint introduced at the hearing is fatally defective in alleging that the prisoner is over the age of sixteen and under eighteen years of age, since the dependent child act, under which it is drawn, affects children under sixteen years only.</p> <p>Id.—Marriage of Minor Subsequfnt to Complaint—Discharge on Habeas Corpus.—Where it appears from the sworn petition for the writ of habeas corpus that, since the filing of all the complaints, the minor prisoner has been married and is the wife of the petitioner, and such allegation is not denied, it must be taken as true, and makes her an adult person, not within the Whittier act, and the act concerning dependent children, and is sufficient ground for her discharge.</p>

<p>Estates op Deceased Persons—Trust Fund Segregated by Deceased Husband—Distribution op Fund in Wipe's Estate—Presentation op Claim.—Where a trust fund received by a deceased husband in his lifetime under the will of his deceased wife was invested by him as directed by the decree of distribution of her estate, to be paid over to a Masonic lodge as distributee thereof, in trust for the maintenance of her burial lot, and was kept segregated by the husband, presumably in obedience to the decree, such trust fund was no part of the husband's estate, and it was not necessary for trustees of the lodge, appointed by it to receive the fund, to present a claim against the husband’s estate, as a condition precedent to a recovery of the fund from his administrator.</p> <p>Id.—Charitable Character op Lodge—Suppictenoy op Evidence.— Neld, that the evidence was sufficient as to the charitable character of the lodge, and the holding of its funds in trust for purposes of charity. (Smith, J., contra.)</p> <p>Id.—Competency op Lodge to Accept Trust under Decree—Presumption—Control op Equity.—The competency of the lodge to accept the trust imposed upon it by the terms of the decree of distribution must be presumed in favor of the decree, and if the case were otherwise, an association of members is so far under the control of a court of equity that they will be compelled to execute the duties of the trust. (Smith, J., contra.)</p> <p>Id.—Conclusiveness op Decree.—There being before the court a distributee, and a decree of distribution which has become final, this court cannot by indirection inquire into the validity of the decree, or of the evidence received and offered in its support.</p> <p>Id.—Permanence op Investment by Husband—Presumption op Continuance—Trust Devolved upon Administrator.—An investment of the trust fund by the husband which is proved, and which was ordered to be made permanent, is presumed to continue, and ’ upon his death the trust devolved upon his administrator.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. . Frank F. Oster, 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 Los Angeles County, and from an order denying a new trial. D. K. Trask, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County, and from an order denying a new trial. Paul W. Bennett, 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>