Volume 30 — California Appellate Reports

APPLICATION originally made in the District Court of Appeal for the Second Appellate District for a Writ of Prohibition to restrain the Superior Court of Los Angeles County from proceeding with the trial of a certain action on an appeal from the Justice’s Court. The facts are stated in the opinion of the court.

<p>Street Law — Recovery upon Bond — i-Place of Filing Statement of Claim. — In a case of street improvement work done under contract with a municipal corporation in accordance with the Street Work Act of 1885 (Vrooman Act) and amendments thereto, a claimant furnishing material therefor who seeks to recover on the bond given in connection with the contract must file his statement of claim, as directed by section 6% of such act, with the superintendent of streets, and such a statement filed with the board of trustees and not delivered to such superintendent or filed in his office is not a compliance with such section, although the same was addressed to both the superintendent and board of trustees.</p> <p>Id. — Public Work — Filing Statement of Claim — Inapplicability to Contracts Under Vrooman Act. — The act of March 27, 1897 (Stats. 1897, p. 201), requiring mechanics employed: upon public work who seek to recover upon the contractor’s bond to file the statement of their claims with the board of trustees, is not applicable to work done under the Vrooman Act, as the adoption of section 6% of such act (Stats. 1899, p. 23) in 1899 repealed the act of 1897 in so far as such act could be said to be applicable to work which came under the seope of such section.</p> <p>Id. — Statutory Bond — Conditions of Recovery. — In an action to recover upon such a bond it is essential that the plaintiff show that all the requisites of the statute have been observed, as he cannot recover thereon as a common-law bond.</p>

<p>Claim and Delivery — Pleading—Description of Property — Waiver of Objection. — In an action in claim and delivery to recover certain oil paintings, where some of the paintings are not named in the complaint, but are definitely referred to as being pictures made by the plaintiff and at that time held in possession by the defendant, and it is alleged that the subjects thereof are not named and described, because they have escaped the memory of the plaintiff and that defendant has denied him access to the property, an objection to the complaint on the ground that the description of the paintings is insufficient should have been raised by demurrer for uncertainty, and it cannot be raised upon appeal, the complaint stating a cause of action and the defendant having met the issues by answering without demurrer.</p> <p>Id. — Form of Judgment.- — A judgment in an action of claim and delivery providing, after ordering recovery of the paintings therein described, “that plaintiff is entitled to judgment for the sum of $12,500 in the event that said pictures are not returned to the plaintiff herein by said defendant,” but not using the original form of “do have and recover,” etc., is sufficient, as the phrase “in the event that said pictures are not returned to the plaintiff herein by said defendant,” is substantially the same as the statutory words, “in ease the delivery cannot be had,” when viewed in the light of the purpose of that provision in the statute.</p> <p>Id. — Alternative Judgment. — While in such an action a judgment must ordinarily be in the alternative, one that is not is not void, and whether or not it is even erroneous depends upon the facts of the particular case.</p>

<p>Action by Corporation — Forfeiture of Charter — Sufficiency of Averment in Answer. — In an action brought by a corporation for damages for breach of contract, the incapacity of the plaintiff to begin or maintain the action because of the prior forfeiture of its charter is sufficiently put in issue, in the absence of special demurrer, by the averment in the answer “that the plaintiff is not now, or was at the time of the filing of the complaint, a corporation organized or existing under or by virtue of the laws of the state of California or of any state, and that prior to the commencement of this action the said plaintiff, after due and regular proceedings for that purpose had forfeited its charter as a corporation and. as such ceased to exist, and ever since said time has ceased to be a corporation.”</p> <p>Id. — Corporation Law — Forfeiture of Charter for Nonpayment of License Tax — Evidence.—The only competent proof of the forfeiture of the franchise of a corporation for the nonpayment of its license tax is the Governor’s proclamation declaring such forfeiture, or a certified copy thereof, and the certificate of the Secretary of the State as to certain data of record in his office is not sufficient proof thereof.</p> <p>Id. — Substitution of Directors as Party Plaintiff — Forfeiture of Charter Prior to Action Brought — Bight of Corporation. — . Where during the trial of an action brought by a corporation in its corporate name it is shown that the franchise of the corporation had been forfeited prior to the commencement of the action, the plaintiff has the right nevertheless to have the names of its directors as trustees substituted for its own name as party plaintiff.</p> <p>Id. — Substitution of Trustees — When Proper. — When in the course of an action it is brought to the attention of the court, either by the pleadings and proof of the defendant or by the suggestion of the fact on the part of the plaintiff, that the names of the trustees of the corporation should appear in the place of the corporation itself as party plaintiff, and when it clearly appears that the cause of action is unchanged and that the real parties in interest remain the same, and that the meritorious defenses of the defendant will be unaffected, and that the only purpose and effect of the proposed amendment is the mere formal change in the names of the party plaintiff without any change in the substantial rights and relations of the real actors in the case, the court should order the substitution made, and it is an abuse of discretion to refuse to do so.</p> <p>Id. — Status op Directors. — The directors of every corporation, whether it has forfeited its charter or not, are the real persons and actors in actions begun by it or for its benefit, and this being so, it does n-ot seem to be so material in what name they begin their actions eo long as the identity of their act as the act of the corporation is undeniable.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco sustaining a demurrer to information. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEAL fro-m a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. James M. Troutt, Judge. The facte are stated in the opinion of the court.

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

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

<p>Negligence — Action fob Loss of Sight of Bye — Evidence.—In an action for damages for the loss of the sight of an eye caused by the' penetration of a chip of steel, through the alleged negligence of the defendant, it was not prejudicial error to refuse to allow, upon cross-examination of an oculist, who had attended the plaintiff for several weeks and was testifying upon his behalf, questions as to whether the injury would interfere with the labor activity of an ordinary laboring man, or would interfere with his work as a factory man, or such work as plaintiff was doing, chipping steel with a sledge-hammer, or whether plaintiff would be able to see a chart used by the optician with figures upon it, where the witness had testified that he had made physical tests of the plaintiff, but not with these charts, and; he had told the jury what tests he had made and the extent of the injuries — the jury then being in as good position as the witness to know to what extent the injury to the plaintiff’s eye impaired his ability to earn a livelihood.</p>

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

<p>Brokers — Contract to Share Commissions — Statute op Frauds.— The statute requiring contracts employing a broker to sell real estate to be in writing is not applicable to an agreement by one real estate agent to share with another agent the farmer’s profit or advantage as the result of a sale or exchange of the properties of their principals, in the form of a fixed per centum on the valuation of the land taken by the principal of the latter in course of the exchange.</p> <p>I». — Construction op Term “Commission.” — The term “commission” should be given a broader meaning than merely that of a per centum valuation on the services of either agent; and, if it is made to appear that the first agent, by virtue of whatever understanding he may have with his principal, is to derive a definite advantage in the way of a material profit from the sale or exchange of his principal’s property, and that such agent does derive such advantage from a transaction brought about through the co-operation and services of such second agent, as the result of an oral agreement between them, the statute of frauds is inapplicable, and the former must account to the latter therefor.</p>

<p>Findings — Uncertainty—Construction—Support op Jugdment. — The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon; and whenever from the facts found other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court.</p> <p>Id. — Negligence—Omission to Find in Express Terms — Sufficiency of. — In an action to recover damages for personal injuries based on negligence, the omission to find in express terms that the defendant was negligent will not defeat the judgment, if the facts found show an omission of duty with a resultant injury.</p> <p>Id. — Finding of Jury — When Conclusive. — Negligence is a relative term depending upon inferences to he drawn from many facts and circumstances which it is the province of the jury to draw in each particular case, and when they do so find upon facts as to which reasonable minds might differ in the eonelusion reached, their decision is not subject to review on appeal.</p> <p>Id. — Injuries to Drug Clerk — Judgment Supported by Findings. — In an action for damages for personal injuries sustained by a receiving clerk of a wholesale drug company from coming violently in contact with a closed fire-door while rapidly ascending a stairway in the building of the defendant, it cannot be said, as a matter of law, that the findings do not support the judgment in favor of the plaintiff, on the theory that the plaintiff was himself negligent in failing to look up and see whether the door was open or closed, where it is shown by the evidence that he, in the discharge of the duties of his employment, used such stairway many times a day, and that he had been doing so for a period of several years, and that the door had never before, to his knowledge, been closed during business hours.</p>

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

<p>Promissory Note — Pledge op Corporate Stock — Sale—Waiver op Notice. — Where a promissory note recites the fact of deposit with the payee of corporate stock as security for the payment of the obligation, and that the latter has the right to call for such additional security as it may deem proper, and on failure to respond forthwith to such call, the obligation shall immediately become due and payable, or the payee, or its assignee, may sell or collect the securities at public or private sale at any time without demand, judgment, or notice, they being expressly waived, a sale at public auction of the security in accordance with the code without notice, is valid; and the contention that the waiver was limited to the condition which might arise on failure of the pledgor to furnish additional security called for, cannot be maintained.</p> <p>Id. — Pledge With Power op Sale — Bight op Pledgee. — While it is true that the relation existing between parties to a transaction where collateral is placed in the hands of the pledgee as security for the payment of a debt, with power of sale in case of default, is in the nature of a trust relation, and that the power must be exercised in good faith, yet, where the pledgee makes the sale in the manner provided by law, and in accordance with the conditions of the contract, and it is not shown that he did, or caused to be done, anything for the purpose of preventing a fair sale, the pledgor has no right to complain.</p> <p>Id. — Note por Stock — Agreement not to Sue — Lack op Estoppel.— In an action to recover on a promissory note transferred by the corporation payee to another corporation as part payment of corporate stock, the transferee is not estopped from bringing the action by reason of a proposed agreement to dissolve the two corporations, and not to enforce collection of the not'e which was originally given for stock in the former corporation.</p>

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

<p>Contract — Sale of Pumping-plant Equipment — Breach—Evidence— Burden of Proof — Capacity of Well. — -In an action to recover damages for a breach of a contract for the sale of a pumping-plant equipment, which the vendor guaranteed was capable of lifting eighty inches of water, equivalent to 720 gallons per minute, provided the water in the well did not, when pumping, lower more than twenty feet -below the pump, the burden is upon t'he vendee to affirmatively show that he had developed a sufficient amount of water in the well, which, had the plant been what it was guaranteed to be, would, if incapable of pumping the number of gallons per minute provided by the contract, at least have lifted a sufficient amount of water" to meet the requirements of the vendee and not cause him any damage.</p> <p>Id. — Capacity of Other Wells — Insufficiency of Proof. — Evidence that other wells, in the vicinity of the well in question, of varying depths, and ranging in distance from a quarter of a mile to a mile therefrom, which, after being developed, produced water in sufficient quantity to irrigate the lands tributary thereto, is not only vague, but'wholly insufficient to establish the capacity of the well.</p> <p>Id. — Plow in Other Wells — Judicial Notice. — Judicial notice cannot be taken that the flow of water in one well is evidence of a like flow in another well of different depth a mile or so distant.</p>

MOTION to dismiss an appeal from a purported judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge. The facts are stated in the opinion of the court.

<p>Vendor and Purchaser — Recovery of Money Paid — Want of Performance by Plaintiff. — The vendee under an option contract for t'he purchase of real estate, which provided that if the purchaser failed to make any of the payments as specified in the contract, the option should thereupon cease and determine, and the vendor should retain all sums paid “as the consideration and in full compensation for the option,” is not entitled, upon default, to recover the money paid, but the vendor is entitled t'a retain the same.</p> <p>Id. — Want of Assent of Stockholders of Corporation Vendor to Sale — Default of Vendee — Point not Available. — In an action to recover the money paid under such an option contract which the vendee contended covered the entire business, franchise, and property of the corporation vendor, ás a whole, the vendee is in no position to complain that the assent of the stockholders had not been obtained as required by section 361a of the Civil Code, where he had not paid, or tendered or offered to pay the balance due under the contract.</p> <p>Id. — Corporation Law — Assent to Sale of Property — Construction of Code — Option Contracts not Included. — The provisions of section 361a of the Civil Code that “no sale, lease, assignment, transfer or conveyance of the business, franchise and property, as a whole, of any corporation now existing, or hereafter to be formed in this state, shall be valid without the consent of stockholders thereof, holding of record at least two-thirds of the issued capital stock,” etc., makes no reference to option contracts to purchase real estate.</p>

<p>Guaranty — Time of Commencing Action — Construction of Instrument. — Under the terms of a written guaranty providing that upon the default of the debtor the guarantee may, at its option, proceed directly and “at once” against the guarantors, to collect the full amount of t'he liability thereunder, or any portion thereof, without first proceeding against the debtor, or foreclosing upon, selling, or otherwise disposing of any collaterals it may have as security for the indebtedness, the right to recover is not lost by the failure t'a bring the action immediately upon the maturity of the promissory note given to evidence the indebtedness, as the words, “at once,” were clearly intended only to emphasize the right intended to be vested by the instrument in the guarantee to proceed against the guarantors as independent obligors.</p> <p>Id. — Pleading—Corporation Indebtedness — Authority to Execute— Unnecessary Allegation. — In an action to recover on such a guaranty it is not necessary that the complaint should allege that the execution and delivery of the promissory note, the payment of which the guaranty secured, was authorized by a resolution of the board of directors of the corporation maker, as such question involved an evidentiary fact.</p> <p>Id. — Maker of Note — Unnecessary Defendant. — In such an action it is not necessary to join the maker of the note as a party defendant, it not being a party to the contract of guaranty.</p> <p>Id. — Accounting—Unnecessary Condition Precedent. — It is not necessary that an accounting be first had to ascertain the balance due to the plaintiff, where the transaction involved the mere matter of a loan of a definite sum of money and the payment of a certain sum in part satisfaction thereof.</p> <p>Id. — Names of Guarantors — Omission in Body of Instrument — Valid Guaranty. — A guaranty is not defective because the names of the guarantors do not appear in the body of the instrument, where the name of the guarantee is contained therein, and the names of the guarantors are subscribed at the bottom thereof, and referred to in the body of the instrument as “the undersigned.”</p> <p>Id. — Evidence—Authority to Execute Note — Minute-book.—In such an action the minute-book of the corporation is admissible as evidence to show that the promissory note in question was executed by the officers of the corporation by the authority of the latter, duly authenticated by a resolution adopted by the board of directors.</p> <p>Id. — Execution and Delivery of Note — Defective Allegation. — An allegation in the answer, in connection with the admission and due delivery of the note, that the defendants have no copy of the note and no recollection of the “words and phrases” of t'he note as set out in the complaint, and having no other information upon the subject sufficient to enable them to answer said allegations more specifically, and placing their denial upon that ground, deny that the alleged copy of the note set forth in the complaint is a correct copy thereof, is a defective allegation, and tenders no issue.</p>

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

<p>Certiorari — Annulment of Proceedings of Public Body — Capacity of Petitioners. — On certiorari proceedings to annul a resolution of the common council of a municipal corporation, the matter of the competency of the petitioners to sue, or the sufficiency of the petition in its statement' of facts showing such competency, should be raised and determined by objection appropriately expressed by demurrer or motion to dismiss the proceeding, and where the objection is not thus raised, and the return to the writ has been made, the petitioners are not required to make proof of their capacity.</p> <p>Id. — Municipal Corporation — Repeal of Liquor Ordinance — Filing of Referendum Petition — Suspension of Ordinance — Construction of San Diego Charter. — An ordinance of the city of San Diego repealing an ordinance making it unlawful for any person to engage in retailing intoxicating liquors outside of a designated portion of the city is suspended under the charter provisions of such city by the filing of a referendum petition against the repealing ordinance within thirty days after its passage.</p> <p>Id. — Resolution Awarding Liquor License — Quasi-judicial Function. Under the charter of the city of San Diego, a resolution of the common council awarding a liquor license is a q«asi-judicial proceeding, and therefore reviewable on certiorari.</p> <p>Id. — Liquor Ordinances — Repeal by- Implication. — A municipal ordinance adopted for the direct purpose of marking out the boundaries of the zone outside of which there should be no retail liquor establishments allowed, is not repealed by implication by the adoption of an ordinance which, in its plain import, was designed to regulate the granting of licenses within the zone where liquor-dealing establishments were permitted.</p>

<p>Building Contract — Agreement tor Bonus — Breach op Contract.— Where plaintiff and defendant entered into a contract whereby t'he latter sold the former certain lots in a subdivision of land, and agreed to give plaintiff a bonus in a certain amount if the latter would build on each lot a dwelling of a certain cost, according to certain plans, prosecute the work with diligence, and see that no mechanics’ liens were filed against the property, plaintiff cannot recover the balance alleged to be due on the bonus, where the evidence shows that the buildings were not completed in the contract time, nor the property kept free from liens, and there were substantial defects in the buildings, to which plaintiff’s attention was called and which were not remedied.</p>

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

<p>Pleading — Jurisdiction — Demand in Complaint Determines. — The demand set forth in the complaint determines the jurisdiction of the superior court in actions at law seeking a money judgment; and the fact that the demand is made up in part of items which may prove not to be recoverable will not make the complaint subject to demurrer upon that ground.</p> <p>Claim Against County — Statute op Limitations — Section 4075, Political Code. — -Under section 4075 of the Political Code, the supervisors cannot allow a claim -against a county unless it is presented and filed with the clerk of the board within one year after the last item of the account or claim accrued, and where certain items of a claim against a county accrued more than one year prior to the presentation and filing of the account, they are barred, and the fact that one of the items accrued within the year does not revive the stale items.</p>

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

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

<p>Negligence — Destruction or Automobile by Fire — Sufficiency or Evidence. — In this action for damages for the destruction of an automobile by fire, through the defendant’s negligence, while on storage in a warehouse located along the line of and adjacent to the right of way and railroad tracks of the defendant, it is held that the undisputed facts were sufficient to give rise to an inference of negligence on the part of the defendant’s employees in not properly extinguishing the fires which they had set along such right of way in the vicinity of the warehouse to burn off the grass, and that such facts were also sufficient to justify the finding that the fire in question came from the defendant’s tracks aqd was the result of the negligent acts of it's employees.</p> <p>Id. — Evidence—Origin op Fire — Opinion op Fire Chief.- — In such an action it is error to permit the chief of the fire department to give his opinion as an expert witness respecting the origin of the fire, as such question is one for the court or jury, but the admission of such evidence is not prejudicially erroneous where the facts upon which the opinion was based had already been presented in evidence.</p>

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

<p>Negligence — Damage to Motor Truck- — Collision With Automobile— Evidence — Proximate Cause of Injury. — -In this action for damages to a motor truck from a collision with an automobile driven by one of the defendants, while the latter was attempting to pass the former upon a city street, it is held, under the evidence, that the proximate and effective cause of the collision was the violation by the defendant of the provision of the street ordinance requiring the driver of any vehicle, in overtaking and passing any other vehicle, to pass to the left, and not to drive t'a the right until clear of such vehicle, and not the violation by the plaintiff of the provision of the ordinance requiring the driver of any vehicle to keep as close to the right-hand curb as possible on all occasions.</p> <p>Id. — -Liability of Minor for Tort. — A minor is civilly liable for a wrong done by him.</p> <p>Id. — Negligence of Chauffeur — Liability of Owner. — The owner of the automobile is liable for the negligence of the chauffeur, notwithstanding the latter was, at the time of such collision, driving the car in violation of instructions of the owner to wait for further orders before proceeding on the trip, where it appears that such driver was, at such time, on his way to a telephone to obtain such instructions.</p> <p>Id. — Master and Servant — Disregard of Instructions — When Master Liable. — Where the servant act's within the general scope of his authority, notwithstanding the fact that he may be disregarding the directions of the employer, the latter may be held liable.</p>

<p>Lodging-house — What Constitutes. — Where a house is under the direct control and supervision of the owners, rooms are furnished and attended to by them, and they or their servants retain the keys thereto, a person renting such a room makes himself a lodger and not a tenant, and the owners are lodging-house keepers, within the meaning of section 1861 of the Civil Code, giving such a person a lien as security'for unpaid rent.</p> <p>fix — 'Claim and Delivery — Trunk and Contents Held for Unpaid Bent — Tender — Material Issue — Findings. — In an action of claim and delivery to recover a certain trunk and its contents by one claiming to be the owner, in which action defendants claim a lien under section 1861 of the Civil Code to secure unpaid rent, whether or not a legal tender of the amount alleged to be due was made, is a material issue upon which a finding should be made.</p>

<p>City of Oakland — Ordinance Changing Positions of Sanitary and Plumbing Inspector — Interference With Civil Service System. Under the provisions of the freeholders’ charter of the city of Oakland, which took effect July 1, 1911, and which introduced into the government of that city for the first time a civil service system, the city council cannot circumvent the object and purpose of the civil service system, by enacting an ordinance giving to the positions of deputy plumbing, inspector and assistant sanitary inspector the name of deputy sanitary and plumbing inspector, without making any change in the duties of such position, and remove the incumbents under civil service regulation and appoint other persons in their places, and mandamus will lie to compel the commissioner of public health and safety to reinstate such discharged employees.</p>

<p>Estate op Deceased Person — Order Setting Apart Homestead— Quantity in Excess op Statute — Failure to Appeal — Title op Widow. — An order setting apart to the widow of a deceased person as a probate homestead a quantity of land exceeding twenty acres in extent, under the homestead law which then provided that such a homestead should not exceed twenty acres in extent, is not void, as being in- excess of the jurisdiction of the court, and where such order has not been appealed from, the title to the homestead under the order is vested in the widow in fee.</p> <p>Id. — Nature op Probate Proceedings. — -Proceedings in probate for the settlement of estates of deceased persons are in the nature of proceedings in rem, and judgments therein so far as they relate to the disposition of the property of the estate are binding upon the parties interested.</p> <p>Id. — Jurisdiction—Validity of Judgment — Error.—The only question to be considered upon the hearing of an application for probate homestead is, did the court have authority to determine the subject matter of the controversy and jurisdiction over the thing proceeded against; and where the court has jurisdiction, mere error in its judgment will not vitiate t'he decree.</p> <p>Id. — Specific Devise — Homestead Bight not Affected. — The right of the widow to such a homestead is not affected by reason of the fact that the premises out of which it was carved were specifically devised t'a her for life, in the absence of anything in the will to show that the testator intended the specific devise of a life estate to his wife to be in lieu of any rights which she might acquire under the statutes making provision for a probate homestead to her as his widow.</p> <p>Id. — Nature of Homestead Bight of Widow. — The right of a widow to a probate homestead is an independent right which she has in addition to any other right of property which the law gives her, whether acquired under her husband’s will or otherwise.</p> <p>Id. — Sales of Beal Estate — Payment of Family Allowance After Marriage — Failure to Appeal — Valid Orders. — Orders authorizing and confirming sales of real estate to pay the amount of the family allowance accruing subsequent to the marriage of the widow of the deceased, are not subject to attack, where no appeal was ever taken therefrom, and the purchaser of the property at such sales acquires a valid title thereto.</p> <p>Id. — Order for Family Allowance — Fraud.—An order of sale of real estate of a deceased person is not subject to attack on the ground of fraud and conspiracy in the administration of the estate in keeping such family allowance alive aft'er the widow’s marriage, where mo proof of such fraud is shown other than by the record itself, from which it appears that the court was fully advised of such marriage, arid it is also made to appear that no decision had ever been made, at that time, to the effect that an order for family allowance ceased on the marriage of the widow.</p> <p>Id. — Judgment—Attack fob Fraud — Essentials.—A judgment or decree of a court of competent jurisdiction can be set aside for fraud only when the fraud alleged is shown to be extrinsic or collateral to the matter which was tried and determined.</p> <p>Id. — Specific Devise — Homestead—Lack of Estoppel. — The widow in such a case is not estopped from claiming that she acquired t'he fee in the homestead premises by virtue of the fact that she took under the will a life estate in another part of the premises, in the absence' of anything in the will or otherwise putting her to an election.</p>

<p>Criminal Daw — Murder—Support op Verdict. — In a prosecution for murder, where the testimony upon which the defendant was convicted was circumstantial, the judgment of conviction will not be set aside on appeal, where it cannot- be said that there was not evidence to sustain the verdict, even though it cannot be said that a strong and convincing case was made out against the defendant.</p>

APPLICATION originally made in the District Court for the Second Appellate District for a writ of habeas corpus. The facts are stated in the opinion of the court.

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

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Grant Jackson, Judge.</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. Wm. H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Contract — Sale of Motor Cars — Retention of Deposit as Damages— Recovery of — Evidence—Duty of Seller. — Where a contract for the sale of motor cars provided that in case of the cancellation of the contract before its expiration, or in the event that its terms should not be fully complied with by the purchaser, the deposit should be retained by the seller as damages, it is the duty of the seller in an action by the purchaser to recover such deposit, on the theory of a rescission of the contract by mutual consent, to show that he has been actually damaged in the sum deposited, or that one of the other contingencies mentioned in the contract had arisen upon which he was entitled to retain the deposit.</p> <p>Id. — Presumption Against Validity of Liquidated Damages — Exception to be Pleaded and Proven.- — In order to entitle a defendant to retain the sum deposited with him as contingent liquidated damages for the breach of an obligation, it' is incumbent upon him to show not only by averment, but also by proof, that his ease is within the exception contained in section 1671 of the Civil Code, for without an allegation bringing his ease within the exception the pleading in that regard is insufficient, the presumption being, in the absence of such allegation, that such agreement is void.</p> <p>Id. — Rescission of Contracts — Power of Agents. — Presumptively an agent is employed to make contracts, and not to modify or rescind them; to acquire interests, not to give them up, and no power to vary or cancel an agreement is to be inferred from a general power to make it, nor has the agent any implied power to waive or give up rights or interests of his principal, unless the principal knew or approved of such modifications by the agent. However, a general agent may act under such broad power to contract in his own name, or to make terms or to settle upon his own discretion, as to overcome this presumption, and bind the principal by the modification, rescission, or release of the agent.</p> <p>Id. — Change of Sale Price — Reserved Right — Effect of. — An agency contract providing for the purchase of fifty motor ears between specified dates covering a period of almost one year, is not void by reason of the reservation therein of the right to change the list and net prices of such cars at any time by giving the purchaser two weeks’ notice of such proposed change, where the purchaser’s brokerage or discount is not altered by such change.</p> <p>3d. — Cancellation of Contract — Reserved Right of Seller — Effect of. — Such a contract is not void for lack of mutuality by reason of the provision therein reserving to the seller the right to cancel the contract upon fifteen days’ notice and returning unused deposits.</p>

<p>Deed — Railroad Right of Way — Duration of Estate — Construction of Instrument. — A deed to a railroad corporation which recites that for and in consideration of encouraging and promoting the construction of a railroad, and for other considerations, the grantor conveys the land described in such deed to the railroad company and its successors “during the legal existence of said company, solely upon the following conditions [here follow certain conditions] . . . ; and upon the breach ... of any of the aforesaid conditions, this grant shall become void, and the estate hereby conveyed . . . shall cease and determine, and the said land shall absolutely revert to the said party of the first part (grantor), his heirs or assigns, in fee simple . . . and shall in like manner at the expiration of the legal existence of said company revert to said party of the first part, his heirs or as- , signs, notwithstanding anything herein contained to the contrary,” shows an intention to limit the duration of the grant to the period of the legal existence of the company, and not an intention to irrevocably dedicate the land to railroad use upon a condition subsequent.</p> <p>Id. — Conveyance of Reversionary Interest — Construction of Deed. A deed, made by the successor in estate of the grantor, conveying a large tract of land within which such right of way was included, conveys to the grantee the reversionary interest of the grantor therein, notwithstanding such right of way is reserved and excepted in the granting clause, where such clause is immediately followed by an explanatory provision showing an intent and purpose on the part of the grantor to convey such right of way to the grantee.</p> <p>Id.— Construction of Deeds.— In construing a deed every provision, clause, and word shall be taken in consideration in ascertaining the meaning of the grantor, whether words of grant, of description, or words of qualification, restraint, exception or explanation, and every word shall be presumed to have such force and effect as it can have.</p> <p>Id. — Railroad Corporations — Nature op Contracts por Rights op Wat. — While it is true, where land has been taken for public use without compensation being first made, and its continued possession is necessary to such use, the owner cannot recover possession of the land itself, but can only compel payment for t'he same, and that the right to compensation accrues at the time of the taking, and while it is also true that this right' to compensation is a personal one which does not run with the land, nor pass by conveyance thereof after the right accrues, such doctrines in no way affect or abridge the right of railroad corporations t'a enter into a binding obligation or contract, with reference to land taken by them for rights of way, and such agreements when made stand on the same footing as any other contract for t'he conveyance of land.</p> <p>Id. — Acceptance op ‘Conveyance Upon Condition — Right op Railroad Corporation. — A railroad may accept a conveyance of land upon any condition that may lawfully be annexed to an ordinary grant, and such a contract may create an estate less than a fee in land taken for a right of way.</p> <p>Id. — Expiration op Limited Estate — Continuance op Use — Duty op Railroad Corporation. — Where an estate is granted to a railroad corporation for a limited period, and at the expiration thereof, the corporation elects to continue its use for a right of way, it can only do so by compensating the reversioner.</p>

<p>Sale — Breach of Warranty of Quality — Sufficiency of Evidence.— In this action for damages for the breach of an express warranty which accompanied the sale of a certain quantity of coffee bags to the plaintiff by the defendant, it is held that the finding that the bags were not in the warranted condition upon their arrival at the port of destination is supported by the evidence.</p> <p>Id. — Measure of Damages — Market Value at Place of Destination —When Admissible. — Where it was not practicable for the plaintiff to inspect the bags at the place of shipment, and the defendant had knowledge at the time of sale as to where they were to be shipped and used, it is proper to fix the damages with reference to the market value of the bags at the port of destination rather than where they were baled and received.</p> <p>Id. — Evidence—Knowledge of Place and Use of Bags. — In such an action it is not error to permit the defendant as a witness for the plaintiff to be interrogated as to his knowledge, “at the time of the concluding of the transaction,” concerning the place where the bags were to be used.</p> <p>Id. — Recovery of Damages — Breach of Warranty — Inspection Prior to Delivery — Effect of. — The right of a buyer of personal property t'a recover damages for breach of an express warranty is not affected by an inspection of the property before delivery.</p>

<p>Contract — Dredging Work — Material Subject to Half Measurement — Construction of Specifications. — In this action to recover a balance alleged to be due on a written contract between plaintiff and defendant for certain dredging work in a portion of Oakland harbor, wherein t'he sole controversy was over the question whether payment for material dredged from the side slopes of the channel within specified areas should be made upon the basis of full measurement or half measurement of the quantity removed, it is ¡held that the specifications of the contract are to be construed as requiring that payment should be made therefor upon the basis of • half measurement.</p> <p>Id. — Evidence—Custom.—Where a contract for dredging work is susceptible of a reasonable interpretation as to how the payment for material dredged from side slopes of channels shall be made, without incorporating in it any extrinsic provisions by evidence of usage or custom, the admission of such evidence is not prejudicial.</p>

<p>Appeal — Failure to File Transcript — Dismissal.—Where more than, forty days have elapsed since an appeal from a judgment was perfected, and no transcript has been filed, or extension of time given within’ which to file such transcript, the appeal will be dismissed.</p>

<p>Appeal — Statutes Conferring Eight of — Construction.—The provisions of the statutes conferring the right of appeal and prescribing the procedure are remedial, and should not be unduly hampered with constructive restrictions which will cast doubt upon the jurisdiction of the appellate court.</p> <p>Id.- — Appeal from Justice’s Court — Payment of Fees. — The purpose of the enactment of section 981 of the Code of Civil Procedure was to provide for the payment of the clerk’s fees at the time of transmitting to the superior court the papers on appeal; and where the fees, though not paid to the justice at the time of presenting for filing the notice of appeal, are nevertheless paid within the thirty days allowed for taking the appeal so as to enable him to transmit the fees, together with the papers on appeal, it is a sufficient compliance with the statute.</p> <p>[d. — -Notice of Appeal — Time of. — While a justice of the peace may not be required to accept for filing any notice of appeal not accompanied with payment of the fees, and assuming that a notice of appeal left with the justice, without the fees, cannot be deemed filed until payment of the fees, it being the duty of the justice to file the notice upon the payment of the fees, it will be deemed filed as of the date on which the fees were paid, where the payment is within thirty days after the rendition of judgment, and this is a sufficient compliance with the statute.</p>

<p>APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the Superior Court of San Diego County from proceeding to enter judgment on the merits in an election contest.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Parent and Child — Support op Illegitimate Child — Construction op Section 196a, Civil Code. — Section 196a of the Civil Code provides, in the alternative, that an action to compel the father of an illegitimate child to support it may be brought either by the mother or the guardian of the child, and the mother not having chosen to bring the suit herself, it may be brought and maintained by the child through his guardian, either general or ad litem.</p> <p>Id. — Amount op Allowance — When the Determination op the Trial Court Conclusive. — In an action to compel a father to support an illegitimate child, where the trial court, with the pleadings and facts as to the financial ability of the respective parents before it, ordered the father to contribute twenty-five dollars per month to the support of the child, the appellate court will not on appeal interfere with the amount of the allowance.</p> <p>Id. — Sufficiency of Complaint. — In such a case, where the complaint shows that the parents of the child were not married at the time of his birth, and that they have not since that time been married, the contention that the complaint is insufficient in that for aught that appears in it the defendant and the mother of the child may have been married at the time the child was conceived, and that therefore he is not illegitmate, is not sufficient for a reversal, although the complaint may be ambiguous and uncertain in this respect, where the evidence showed that the defendant is the father of the child and the latter’s mother has never been married, and counsel for defendant admitted at the oral argument that “the plaintiff is a bastard.”</p>

APPLICATION originally made in the District Court of Appeal for the Second Appellate District for a Writ of Mandate to compel a justice of the peace to enter judgment by default. The facts are stated in the opinion of the court.

<p>Criminal Law — Larceny—Inadvertent Remark of Court — Admonition to Disregard — Misconduct not Prejudicial. — In a prosecution for larceny, where the evidence offered in support of the charge tended to show that the defendant had entered into certain meretricious relations with the wife of the complaining witness during the absence of the latter from home, and that it was during the existence of such relationship that the crime was committed with the connivance and consent of the wife, no prejudice is suffered by the defendant from a remark made by the court during argument of counsel as to the admissibility of certain evidence tending to show adulterous relationship, to the effect that the defendant had “tried” to establish such intimacy in another way, where the court, immediately upon its attention being called to its inadvertent remark, instructed the jury to disregard it.</p> <p>Id. — Adulterous Relationship — Evidence—Order Striking Out Testimony — Instruction to Disregard — Lack of Prejudice. — Error in the admission of testimony which the prosecution claimed tended in some degree to show the existence of adulterous relations between the defendant and the wife of the complaining witness is cured, where such testimony is subsequently stricken out and the jury instructed to disregard it.</p> <p>Id. — Prejudicial Misconduct op District Attorney — Improper Questions. — It is prejudicial misconduct for the prosecuting officer to ask a character witness for the defendant if the defendant had not been dishonorably expelled from a fraternal organization of which the witness was a member, after objections to five previous questions, all relating to the same matter, had been sustained on the ground that such matter related to a time subsequent to the commission of the crime in question.</p> <p>Id. — Argument to Jury — Prejudicial Misconduct. — It is also prejudicial misconduct for the prosecuting officer to comment upon the fact that the defendant had refused to permit Ms wife to be a witness in the ease, where the record shows that the attitude of Ms wife was antagonistic to the defendant.</p>

<p>APPLICATION originally made in the District Court of Appeal for the Second Appellate District for a Writ of Certiorari to review an award made by the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guaranty — Payment of Rent Reserved in Lease — Construction.— A guaranty attached to a lease of real property for the period of ten years at a monthly rental of six hundred dollars for the first five years and seven hundred dollars for the second five years, which indemnifies the lessors for a breach of the covenant to pay the rent reserved “in the sum of thirty-six hundred dollars,” and a resolution authorizing the execution of such guaranty by the corporation guarantor, which provides that such guaranty be executed “for the sum of $3,600, being for six months’ rent at $600 per month,” are to be construed as covering only against defaults by the lessees during the first five years, when the rent was six hundred dollars per month.</p> <p>Id. — Contract—Repugnancies—How Interpreted. — The repugnancies of a contract must be reconciled, if possible, by giving to them such an interpretation as will make them effective and at the same time subordinate to the general intent and purpose of the contract considered and construed in its entirety.</p> <p>Id. — Inconsistent Words and Phrases — When Rejected. — Particular words and phrases in a contract may, for the sake of interpretation, be rightly rejected only when they are inconsistent with its apparent purpose and the obvious intent of the parties.</p> <p>Id. — Action for Recovery of Rent-Evidence — -Circumstances Surrounding Execution of Guaranty — Harmless Error. — In an action brought against the lessees and the guarantor to recover unpaid rent, error, if any, in the ruling sustaining an objection to a question propounded to a witness by plaintiff’s counsel, calling for the circumstances attending the execution of the guaranty, was harmless, where subsequently all of the circumstances preceding and attending the execution of the lease, the original guaranty, and the resolution was admitted in evidence without objection.</p>

<p>Criminal Law — Assault With Intent to Commit Robbery — Pleadinq and Proof. — Although the prosecution alleges in the information that an assault with intent to commit robbery was committed with a deadly weapon, to wit, a loaded revolver, it is not limited to the proof of that particular form and means of assault, and where the evidence is otherwise sufficient to justify a conviction, the fact that it was not proven that the assault was made with a deadly weapon, to wit, a loaded revolver, does not render the verdict unsupported by the evidence, as the words “with a deadly weapon, to wit, a loaded revolver” may be treated as surplusage.</p> <p>Id. — Instructions—Proper Refusal. — In such a case there is no error in refusing instructions asked by the defendant touching alleged defect in proof as to the use of the particular weapon at the time of the assault; nor of instructions which were substantially covered by others given.</p> <p>Id.- — Insufficient Record on Appeal. — Where there is no affirmative showing as to whether or not certain instructions were in fact given, the appellate court must resolve the uncertainty of the record in favor of supporting the judgment.</p>

<p>Criminal Daw — Robbery—Argument op District Attorney — Reference to Arrest op Dependant's Wipe — When Not Prejudicial.— In a prosecution for robbery, it is not prejudicial misconduct on the part of the district attorney in argument to call attention to the interest of defendant’s wife, and to the fact that she is under arrest and out on bail, where it is conceded that the jury must have known that she was jointly charged with the defendant in the crime, and the evidence shows that she was a party thereto.</p> <p>Id. — Alleged Misconduct op Court — When not Shown. — In a prosecution for robbery, where the jury after retiring, failed to agree, and on being called before the court attempted to learn how the court would regard a recommendation for probation, intimating that a verdict could be reached if such recommendation should be acted upon favorably, but the court stated that, while it would be glad of any recommendation, it would not promise to follow it, and that it was the duty of the jury, irrespective of what punishment would follow, to find its verdict from the law as given by the court and applied to the facts, and the jury thereafter rendered a verdict of guilty with a recommendation for probation, it cannot be contended that the court coerced the jury into finding a verdict of guilty; nor can such contention be made upon the ground that the court, in urging the jury to reach a verdict, referred to the time consumed in the trial and the large expense incurred therein, the court saying nothing to indicate what the verdict should he.</p>

<p>Criminal Law — Libel—Conflicting Evidence — Verdict Conclusive.— In a prosecution for libel, where there is a substantial conflict in the evidence upon the matters constituting the libel, the verdict of the jury will not be disturbed on appeal.</p>

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

<p>Contract — Sale of Jewelry Business — Agreement not to Engage in Similar Business — Evidence—Breach of Contract. — A contract in which it was agreed that the seller of a jewelry business would not engage in the same business in the city in which such business was being conducted, for -the period of twenty years, either for himself or as the employee of another, and that if he did so he would respond in liquidated damages in a specified sum, is violated by the opening of another jewelry store in the same city under the name and sign of the son of the seller in the building owned by the latter, who personally superintended the fitting up of the store, furnished all money for the purchase of the stock, and for a considerable period of time after the opening of the store did all of the finer and more extensive repair work in the store premises and collected and receipted for the money paid for such work.</p> <p>Id. — Contract not to Engage in Business fob Twenty Years — Time not Unseasonable. — A contract not to engage in the same business for the period of twenty years in the city in which a business sold was conducted is not void on the ground that the time is unreasonably long, where the successors in interest of the buyer, after the lapse of six years of the time, are still conducting the original business.</p>

<p>Libel — Publication Concerning Divorce Action — Accusation of “Affinity” — Pleading—Sufficiency of Complaint. — A complaint in an action for libel based upon the publication of an article in a newspaper having reference to a divorce action, which alleges that it was stated in such article that the husband in his complaint in such action accused his wife of having two affinities, of which the plaintiff was one, and which statement is alleged to be false, states a cause of action, and is not a fair and true report, without malice, of a judicial proceeding.</p> <p>Id. — Plea of Privilege — Demurrer.—In actions for libel the plea of privilege is defensive matter which cannot be raised on demurrer unless the complaint affirmatively shows that the report complained of as libelous is a fair and true report, without malice, of a judicial proceeding.</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. 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. George E. Crothers, 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. Thos. F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Motion for Change of Place of Trial — Sufficiency of Affidavits.— It is held that the affidavit of the plaintiff on a motion for a change of place of trial in this action is positive in character, and was sufficient to raise a substantial conflict on the question of defendant’s residence, for which reason the conclusion of the trial court will not be disturbed on appeal.</p>

<p>Vendor and Purchaser- — Installment Payments — Security op Payments by Crop Mortgage — Application op Proceeds. — Where a contract to purchase land provides that the price shall be paid in specific amounts at specified times, the vendor is not warranted under the terms of a crop mortgage given by the vendees to secure the payments of such amounts, in applying the proceeds of the whole crop on such price, where it is shown that both instruments were made at the same time, but is limited in making such application by the terms of the contract.</p>

<p>Mortgage on Growing Crops — Delivery to Packing Association — Violation op Agreement — Dien not Dost. — The lien of a mortgage on a crop of grapes is not lost by the delivery of the crop to a packing house for marketing by the mortgagor in his own name in violation of an agreement between the mortgagor and mortgagee that the crop should be delivered in the name of the mortgagee, as under such an agreement the mortgagor is constituted the agent of the mortgagee.</p> <p>Id. — Removal of Crop Independent of Agreement — Lien not Lost— Status of Consignee of Mortgagor. — The lien of a mortgage on a growing crop is not lost by the wrongful removal of the crop from the land, independent of any agreement, and such lien still exists against the consignee of the mortgagor, unless he can clothe himself with the character of an innocent purchaser for value.</p> <p>Id. — Recovery of Proceeds of Crop — Pleading—Execution of Mortgage — Denial upon Information and Belief. — In an action by the mortgagee against the consignee of the mortgagor to recover the proceeds of such crop, a denial upon information and belief of the execution of the mortgage sufficiently raises the issue, notwithstanding the defendant had constructive notice of its recordation.</p>

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

<p>Husband and Wife — Bank Deposits — Presumption op Community Property Overcome. — The presumption that money deposited by a wife in a savings bank during marriage is community property is overcome by evidence tending to show that the money was accumulated from the personal income of the wife’s mother and brother, and that the wife merely handled it in her name as their agent or trustee.</p>

<p>APPLICATION for admission to bail pending an appeal from the Superior Court of Madera County from a judgment of conviction of embezzlement. C. 0. Busick, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens — Building Contract — Abandonment bt Contractor — Amount Applicable to Liens — Bule Prior to Code Amendment. — Where a building contract had been abandoned by the contractor prior to completion of the work, the portion of the contract price applicable to the liens of other persons than the contractor was, prior to the repeal of section 1200 of the Code of Civil Procedure in the year 1911, the difference between payments made to the contractor and the value of the work and materials done and furnished at the time of such abandonment, including materials then actually delivered on the ground, “estimated as near as may be by the standard of the whole contract price,” and not by the actual value of such work and materials.</p> <p>Id.- — Time of Piling Lien — Cessation of Labor — Pleading and Evidence. — Where in an action for the foreclosure of a mechanic’s lien, it is alleged in the complaint that there had been a cessation of labor for a period of thirty days, which, if true, would have shown that the lien was filed too late, and it appears from the evidence introduced without objection, and the admissions of the answer to the complaint that there had not been such a cessation, and also that no notice of cessation had ever been filed of record, the averment of the complaint may be disregarded and the finding of the court upon the evidence accepted.</p> <p>Id. — -Pleading—Omission to Allege Terms of Contract — Evidence of Lien — Effect of. — An objection that the complaint in an action to foreclose a mechanic’s lien failed to allege that the lien contained a statement of the terms, time given, and conditions of the contract, cannot be considered on an appeal from the judgment, where no demurrer was interposed to the complaint and the lien, which contained such statement, was admitted in evidence without objection.</p> <p>Id. — Complaint and Lien — Lack of Variance. — There is no variance between the complaint in an action to foreclose a mechanic’s lien and the lien itself, sufficient to justify a reversal of the judgment, where it is alleged in the complaint that the contractors agreed to “pay the plaintiff the reasonable value of the material [lumber and mill work] in cash and upon delivery,” and the lien recited that the agreement was that the materials were to be paid for upon delivery in accordance with the prices carried out against the various items, and that the materials were of the reasonable value as in the notice set forth.</p> <p>Id. — Lumber Used for “Concrete Forms” — Bight to Lien.- — Lumber furnished to be used for “concrete forms” which did not enter into or become a part of the building, is lienable, where it is shown that the building could not have been erected without the use of lumber made into such forms into which the concrete was poured, there to remain until thoroughly “set” for fifteen or twenty days.</p> <p>Id. — Cessation of Work and Completion of Building — Contradictory Averments — Effect of Answer. — Contradictory averments in or statements not true in the complaint, as to cessation of work and completion thereof by the contractor, when at variance with the findings, are not fatal to recovery, where the answer cures the contradiction of misstatements, and the findings are as alleged in the answer and supported by uncontradicted evidence.</p> <p>Id. — Order Consolidating Actions — Effect upon Defective Pleadings. — Where actions for the foreclosure of mechanic’s liens are consolidated, the effect of the order of consolidation is to unite the causes of action so as to constitute one cause of action and one pleading, and the allegations in one complaint will remedy defects and supply omissions in another.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the First Appellate District to compel the execution of a contract for street work.</p> <p>The facts aré stated in the opinion of the court.</p>

<p>Inheritance Tax Law — Transfers in Contemplation of Death — Possession or Enjoyment After Death — Questions of Pact. — -Under the Inheritance Tax Law of 1905 (Stats. 1905, p. 341), whether transfers of property are made “in contemplation of death,” or “intended to take effect in possession or enjoyment after the death” of the donor, are questions of fact.</p> <p>Id. — Meaning of Phrase “in Contemplation of Death.” — The phrase “in contemplation of death,” as used in the Inheritance Tax Law, relates to transfers made when contemplation of death is the motive which prompts the transfer, and does not have reference to that general expectation of death which is the essential concomitant of the inherent knowledge of the inevitable termination of all life.</p> <p>Id. — Gifts of Corporate Stock by Mother to Children — Evidence— Transfer not in Contemplation of Death. — Under the Inheritance Tax Law gifts of corporate stock made by a mother to her children at a time when she was of the age of seventy-nine years, and suffering from a serious and dangerous heart affliction which caused her death a few weeks after the making of such gifts, are not made “in contemplation of death,” and therefore not subject to taxation, where it appears that the donor had often declared her intention of giving the property to the donees in her lifetime, and that she at the time of such gifts harbored no thought of immediate death.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Third Appellate District, requiring a county auditor to draw his warrant in favor of petitioner for his compensation as justice of the peace.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pleading — Uncertainty in Complaint. — In this action it is held that the second amended complaint was ambiguous and uncertain and that the demurrers thereto were properly sustained.</p>

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

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

<p>Criminal Daw — Continuance—Discretion of Court. — The granting or refusing a continuance in a criminal case is a matter largely in the discretion of the trial court, and it is only in eases where it is apparent that such discretion has not been wisely exercised that the appellate court is justified in reversing such ruling.</p> <p>Id. — Murder — Refusal of Continuance — When Discretion not Abused. — In a prosecution for murder there was no abuse of discretion in refusing a continuance of the trial on the motion of the defendant where the application was made after the trial was commenced and proceeded to the extent of impaneling a jury, and the record shows that the defendant produced the testimony of other witnesses to prove an alibi pleaded, the continuance being asked on the ground of the absence of a witness who, it was claimed, would testify to the alibi.</p> <p>Id. — Evidence—Impeachment of Defendant — When Error Cured.— In a prosecution for murder, where the defendant testified to his age and the prosecution, to impeach him, called other witnesses to testify to previous statements of the defendant inconsistent with his testimony as to his age, but the court subsequently suggested to defendant’s attorney that, if he would move to strike out the evidence, the motion would be granted, which was done, and the jury instructed to disregard the testimony, if the admission of the evidence was erroneous, it was rendered harmless by the later action of the court.</p> <p>Id. — Instructions—Failure to Give Through Inadvertence — Recalling Jury. — Where the court in a murder ease, through inadvertence, failed to give certain instructions to the jury requested by the defendant, but shortly after the jury retired, recalled it and, with the consent of defendant’s counsel, gave them, the court’s action was not prejudicial to the defendant’s substantial rights.</p>

<p>Criminal Law — Robbery—Instructions—Bad Reputation of Defendant. — In a prosecution for robbery there was no error in the court’s refusing to instruct the jury, at the request of the defendant, in substance, that if they believed from the evidence that defendant had in the past been leading a wild and immoral life, and had been guilty of acts which they deemed to be immoral or unlawful, or had an unsavory reputation, such facts should not be considered by them in determining the question of defendant’s guilt or innocence of the crime charged, but that the same degree of proof was required to establish his guilt as that required to establish the guilt of any person charged with a similar offense, there being no issue as to the past life, character, or reputation of the defendant, and no evidence upon the subject, although a witness for the people testified that he and defendant went and hunted for some opium, and that the defendant informed him that the opium had been hidden at a certain place and if found could be sold to a Chinaman.</p> <p>Id. — Argument—Comment upon Defendant’s Failure to Take Stand. It is fundamental that, since a defendant may not be compelled to be a witness against himself, a prosecuting officer may not comment adversely upon Ms failure to take the stand in his own behalf; but a statement made by the district attorney in his argument that defendant’s possession of the stolen property shortly after the robbery was unexplained Toy any sworn testimony, did not violate this rule.</p>

<p>APPEAL from an order of the Superior Court of Merced County granting a new trial. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court. '</p>

<p>State Medical Act — Treating Sick Without License. — In this prosecution for having practiced a system or mode of treating the sick without a certificate issued by the state board of medical examiners, it is held on the authority of People v. Jordan, 172 Cal. 391, and People v. Patledge, 172 Cal. 401, that the judgment and order denying a new trial should be affirmed.</p> <p>Id. — Practicing Without Compensation — Violation of Act. — The State Medical Act makes it unlawful for a person to practice any art of healing without having first obtained a certificate from the medical board, and the act is intended to cover such practice whether the service is gratuitous or not.</p> <p>Id. — Refusal of Instructions — When Proper. — Where the court refuses to give certain instructions offered by the defendant for the reason that the same propositions have been sufficiently stated in the instructions given, it is not necessary for the court to state to the jury the reason for the refusal.</p>

<p>State Medical Act — Treating the Sick Without License — Teaching Chiropractic System. — A teacher and demonstrator of the chiropractic system before a class in a chiropractic school, the subjects of such demonstration being the sick and afflicted who, at his hands, sought and received treatment free of charge, is not exempt from the operation of the State Medical Act.</p>

<p>Pleading — Amendment—Statement op Same Cause op Action. — In an action on a contract for the sale of real property where a demurrer was sustained to the first complaint, plaintiff thereafter filing an amended complaint in which he prayed that Ms title to the property be quieted, and upon a demurrer being sustained to tMs complaint, he filed a second amended complaint, setting up a cause of action for specific performance, it was error for the court to strike the latter complaint from the files on t'he ground that it embodied a new cause of action, where it appeared from the three pleadings that the cause of action was based upon an interest in the property in question created by the provisions of the contract of sale, the terms of which were set forth in full in each complaint, and which constituted the foundation of each cause of action attempted to be stated, the amendments only stating the facts in different forms to accord with the remedy which plaintiff conceived himself to be entitled, and not changing the cause of action.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, T. L. Lewis, and W. R. Guy, 'Judges.</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. Gavin W. Craig, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Perjury—False Statement in Answer — Authority op Notary. — In a prosecution for perjury based upon an alleged false statement in a verified answer in a civil suit, the defense that the notary’who took the affidavit was not shown to be qualified because it was not proven that he had given the bond required by law, although his commission and oath of office were introduced in evidence, cannot be maintained, as his act in administering the oath would be valid as the act of a de facto officer.</p> <p>Id. — Proop op Signature. — The testimony of the notary that he had seen the defendant write, and that in his opinion the signature attached to the affidavit in question was that of the defendant, was sufficient proof of the genuineness of the signature; and the certificate of the notary — that is the jurat attached to the affidavit— was also sufficient to furnish prima facie evidence of the making of the affidavit in the manner charged, the notary’s act being authenticated'by his official seal.</p> <p>Id. — Argument of District Attorney — Statement that Evidence of Prosecution is Uncontradicted. — In a prosecution for perjury it is not misconduct on the part of the district attorney in his argument to state that the testimony of the chief witness for the prosecution is uneontradicte'd, he also stating that the defendant was not compelled to take the stand, where there had been no evidence offered in defense.</p>

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

<p>Habeas Corpus — Judgment—Jurisdiction op Court — Admissibility op Becords. — On a hearing under a writ of habeas corpus, the records of the proceedings of the court rendering the' judgment, under which the petitioner is held by the sheriff, at the time of pronouncement of judgment, may be considered for the purpose of ascertaining whether the judgment was or was not one which the court had jurisdiction to render against the accused.</p> <p>Id. — Office of Writ of Habeas Corpus. — The single question submitted by a proceeding in habeas corpus is always one of jurisdiction, and if it appears that it was within the lawful jurisdiction of the court or tribunal to do the act or pronounce the judgment assailed through such a proceeding, then the inquiry is at an end, even though it be made to appear that the court or the tribunal in deing the act or pronouncing the judgment committed irregularities or errors which, on appeal, might be held sufficient to vitiate the act or judgment.</p> <p>Id. — Power of Court to Correct Judgment. — Where a court has pronounced an illegal judgment, or a judgment illegally, in a case of which it has jurisdiction under the law, such court may thereafter and before execution of such judgment is commenced, set the same aside and pronounce a legal judgment, or a judgment in conformity with the requirements of the law.</p> <p>Id. — Illegal Sale of Liquor — Judgment—Irregularity in — When not Subject to Attack on Habeas Corpus. — A party who has been convicted of selling alcoholic liquors in no-license territory, and first sentenced to imprisonment in the county jail for the term of ninety days and immediately delivered to the custody of the sheriff, cannot be discharged on habeas corpus upon the expiration of such term upon the ground that the day after such judgment was pronounced a second judgment sentencing the defendant to imprisonment in the county jail for the term of five months was rendered, there being no showing that the first judgment was not illegal in substance or form, and it not being shown that a certified copy of the first judgment was furnished to the sheriff under which he held the prisoner.</p>

<p>New Trial — Statement of Case — Failure to Present in Time — Motion for Belief — Lack of Jurisdiction. — Where a default in presenting a proposed statement on motion for a new trial, with the amendments thereto, has continued for a period of more than six months after the time prescribed by section 650 of the Code of Civil Procedure within which such papers must be presented, the-trial court has no jurisdiction to relieve the party from the default.</p> <p>Id. — Construction of Section 473, Code of Civil Procedure. — Section 473 of the Code of Civil Procedure applies to defaults in presenting a statement of the case on motion for new trial, and limits the time within which application may be made for relief therefrom to six months from the time of default.</p>

<p>Promissory Note — Distribution to Legatees — Eight to Sue on Jointly. — Where a promissory note, among other assets of the' estate of a deceased person, is distributed to the legatees jointly, the latter may jointly sue upon it without first having their respective-shares therein partitioned and assigned to them under section 1675 of the Code of Civil Procedure, as it is not compulsory on them under this section to ask for a partition of their interests in severalty.</p>

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

<p>Appeal — Judgment by Default — Notice of Order Overruling Demurrer — Presumption from Eecord. — Upon an appeal taken from a judgment entered for failure to answer after demurrer overruled, it will be presumed that notice of the order overruling the demurrer was given, where such appeal is taken upon the judgment-roll without any statement or bill of exceptions.</p> <p>Action por Goods Sold — Pleading—Presumption as to Ownership of Debt. — In an action for goods sold the complaint sufficiently shows the ownership of the indebtedness at the time of the filing thereof, where it is alleged that the defendant was indebted to the plaintiff for such goods on a date prior to the filing of such complaint, and it is further alleged that such indebtedness has not been paid to the plaintiff.</p>

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

<p>APPLICATION for a Writ of Certiorari originally made to the District Court of Appeal for the Third Appellate District to annul an order of the Superior Court vacating a default judgment of a justice’s court.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Evidence—Witness as Accomplice — -When Question for Jury. — In a criminal action it is for the jury to determine from the evidence whether, as a matter of fact, a witness is an accomplice, if the facts are disputed; and it is only where, the acts and conduct of a witness being admitted, they necessarily establish the witness’ participation in the guilty act, or guilty relation thereto, that the court should determine and instruct the jury as a matter of law that the witness is to be regarded as an accomplice.</p> <p>Id. — Burning- of Insured Property — Witness as Accomplice — Question for Jury. — In this prosecution for burning and destroying insured property with intent to defraud the insurer, in violation of section 548 of the Penal Code, it is held that the testimony of a certain witness did not constitute such an admission of guilty participation in the alleged crime as would warrant the court in declaring him to be an accomplice without leaving the fact to be determined by the jury.</p>

<p>Criminal Law — Setting Fire to Pile of Baled Hay — Evidence— Voluntary Character of Confession. — In a prosecution for the crime of having set fire to a pile of baled hay, an admission of guilt made by the defendant to the officer who arrested him, is not involuntary, because of the declaration made by the officer to him to tell the truth, after the defendant had so declared his intention.</p> <p>Id. — Sufficiency of Proof of Corpus Delicti. — In such a prosecution the corpus delicti is sufficiently proven by the testimony of the officer who found the hay burning in his description of the conditions as he discovered them and of the character of the hay, together with its situation in an open lot, showing the fire was of incendiary origin.</p> <p>Id. — Pleas of Once in Jeopardy and Former Acquittal — Instruction — Direction to Find for People upon -Plea of Once in Jeopardy — Failure to Find on Plea of Former Acquittal — Evidence — Lack of Prejudice. — Where in such a prosecution the defendant in addition to his plea of not guilty interposed a plea of once in jeopardy, and of former acquittal, based upon the ground of variance between the charge and the proof in the first prosecution, there is no error in directing the jury that it should find for the people on the plea of once in jeopardy, nor is the defendant prejudiced by the omission of the jury to find on the plea of former acquittal, as the finding upon the former plea under the testimony relied upon in support of both pleas, necessarily included an adverse finding upon the plea of previous acquittal.</p> <p>Id. — Evidence — Setting of Subsequent Fires — Error not Prejudicial. — It is error to admit proof of the setting of a number of fires by the defendant after the fire in question, and upon the same night, but it is not sufficiently erroneous, where it appears from the whole evidence that the conviction of the defendant was justified.</p> <p>Id. — Instruction—Malice.—In such a prosecution there is no error in giving to the jury the definition of malice as the same is found in subdivision 4 of section 7 of the Penal Code.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, 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 ah order denying a new trial. L. T. Price, judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fike Insurance — Parol Contract — Validity op. — Where an insurance agent authorized to accept risks, accepts a risk by paroi, promising to deliver the policy, the insurance begins with the acceptance, and the contract. in paroi continues until the policy is delivered, when it is superseded by the policy.</p> <p>Id. — Agency to Procure Insurance — Evidence—Scope op Authority. Where a soliciting insurance agent is in the first instance given authority to place insurance, and such authority is thereafter extended to keeping the property insured from year to year, he thereby becomes the general agent of the insured with authority to insure the property and to keep it insured, and, as an incident thereto, to accept notice of cancellation of a policy and procure insurance in another company.</p>

<p>Joint Tenancy — Transfer of Savings Bank Account — Bight of Survivorship. — Where a depositor of money in a savings bank, while ill, and about a month previous to her death, executes and delivers to her niece, for whom she had great affection and regard, a writing directing the bank to transfer the account to an account in the names of herself or such niece, “payable to either or to the survivor,” and accompanies such delivery with the pass-book, and on the following day the bank upon presentation of such document and the pass-book makes a transfer of the account as directed, and issues a new pass-book which the aunt directs the niece to keep, and on the same day the niece makes a withdrawal from such account for her own personal use, with the knowledge and concurrence of the aunt, such writing, and the acts and conduct of the parties at the time of and after its execution, constitute the parties joint tenant's of the fund with the right of survivorship in the' niece upon the death of the donor.</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 a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Physician and Surgeon — Treatment op Patient — Degree op Learning and Skill Required. — There is no implied contract on the part of a physician who undertakes the treatment of one suffering from disease or injury, that such treatment will prove a success, or that ill and serious results may not follow as the direct result of such treatment, but he nevertheless, by implication, guarantees that he possesses that reasonable degree of learning and skill possessed by others of his profession, and that he will, in the treatment of his patient, exercise reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed; and where he possesses such degree of learning, and in applying it exercises ordinary care and skill, he is not liable for the results that follow.</p> <p>Id. — Negligence op Physician — Treatment op Fractured Arm. — A physician who in the treatment of a fractured arm adjusted the splints and bandages in a manner so tight that no "space was left for the enlargement of the arm due to the swelling that ordinarily follows in such cases, and who, upon being informed of such swelling, and of the great pain which the patient was suffering therefrom within a few hours after the treatment, neglected to visit the patient until the following day, and then took no steps to loosen the splints or relieve the pain except to suggest the administration of a dose of paregoric, is guilty of negligence in failing to exercise that degree of skill and care ordinarily exercised by the members of his profession.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Third Appellate District to compel the settlement of a bill of exceptions to be used on an appeal from an order denying a motion to tax costs.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Husband and Wife — Loan of Jointly Owned Moneys to Third Parties — Ownership of Notes and Mortgages — Tenancy in Common. — Where moneys on deposit in a savings bank under a contract declaring them to be the joint property of a husband and wife are withdrawn by the husband by consent of the wife and loaned to third parties, who gave their notes and mortgages therefor payable to both husband and wife, the wife’s interest in such notes and mortgages is that of a tenant in common.</p> <p>Id. — Conveyance to Married Woman — Evidence—Code Presumption. While it is true that the presumption established by section 164 of the 'Civil Code, that whenever a conveyance is made to a married woman and her husband, she takes the part -conveyed to her as tenant in common, is not conclusive, yet it is itself evidence which may outweigh the positive testimony of witnesses against it, and will stand as evidence in the case until it is overcome by other testimony; and whether in any case a disputable presumption has been dispelled by testimony received in rebuttal thereof, is a question for the trial court.</p>

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

<p>Insurance Law — Appointment op Local Agent — Scope op Authority — Construction op Instrument. — A local agent of an insurance company has no authority to make a binding contract of insurance under a letter of the general manager appointing him as agent for the transaction of insurance in a stated locality subject to such instructions as may from time to time be given Mm by the home office, and providing therein that “policies will be written at the general office.”</p> <p>Id. — General and Local Agents — Distinguishing Feature. — The authority to complete contracts primarily differentiates a general agent having power to bind his principal from mere soliciting agents and other intermediaries operating between the insured and the insurer, who have authority only to initiate contracts, and consequently cannot bind their principals by anything they may say or do during preliminary negotiations.</p> <p>Id. — Automobile Insurance — Mistake in Application — Retention op Policy After Knowledge — Estoppel.—A holder of a policy of automobile insurance, who upon discovery of a mistake made by him and the local agent of the insurance company in attaching the wrong “rider” to his application for the policy, which they both believed covered risks against collisions, elects to retain the policy issued to him, and neither requests the issuance of a different policy, nor offers to pay the premium requisite to insure against the risk which he believed the rider to cover, thereby accepts the policy, and cannot in the case of a collision ask for reformation of the policy and judgment for damages from the collision.</p>

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

<p>APPLICATION originally made to the District Court of Appeal for the Second Appellate District, for a Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor and Purchaser — Default of Vendee — When Entitled to Return of Monet Paid. — A vendor after a breach of a contract of sale by the vendee, may agree to a mutual abandonment and rescission of the contract, and in such a case, the vendee is entitled to a repayment of the moneys paid.</p> <p>Id. — Agreement Canceling Contract — Repayment of Vendee — Sufficiency of Evidence. — An agreement made between a defaulting vendee and the vendor canceling the contract of sale, and giving a third party a thirty-day option to sell the property, and providing that the vendee shall be repaid out of the money fixed as the sale price, the amounts paid by him under the contract, and that in the event that the sum be not paid the vendee shall receive nothing and shall have no further claim in the property, is not a waiver of the rights of the vendee, in the event of a failure of the third party to make the sale, as there is no consideration for the waiver, and where the vendor afterward makes a sale of the property, and orally promises to repay the vendee when the sale is made, the vendee is entitled to recover.</p>

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

<p>Action to Establish Interest in Stallion — Conflicting Evidence— Findings Conclusive. — In an action to recover one-half of the proceeds on the sale of a stallion, plaintiff claiming to have been a tenant in common with the defendant of the stallion, where the evidence is conflicting and defendant’s testimony, if believed by the court, was sufficient to sustain a finding in Ms favor, it will not be disturbed on appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. John E. Richards, and W. A. Beasly, Judges.</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. George D. Murray, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence — Death of Laborer in Sewer Trench — Dangerous Place to Work —Lack of Warning — Liability of Municipality.— A municipal corporation is liable in damages for the death of a laborer resulting from injuries received while working in a sewer trench being constructed by such corporation, where he was ordered by the agent of the corporation to go into the trench and shovel dirt around a manhole being therein constructed after the bracing and cribbing at the place where he was directed to work had been previously removed, leaving the walls of the trench without support, and no special warning given him of the danger from caving in of the excavation.</p>

APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a Writ of Mandate to compel the Superior Court of Los Angeles County to reset a cause for trial. The facts are stated in the opinion of the court.

<p>Negligence — Personal Injuries — Impanelment op Jury — Reference to Insurance op Dependant Against Loss — Conduct not Prejudicial — Subsequent Evidence op Fact. — In an action for damages for personal injuries, the defendant is not prejudiced by the conduct of counsel for the plaintiff during the proceedings for the impanelment of the jury in getting before them the fact that the defendant was indemnified against loss by a surety company, where during a later stage of the trial the fact was permitted to go before the jury in the form of evidence without objection from one of the defendant’s own witnesses.</p> <p>Id; — Damages—Loss op Money Paid on Lot. — In an action for damages for personal injuries, the plaintiff cannot recover as special damages thé amount of the installments paid by her on a piece of real property, which she had lost by reason of her inability to keep up the payments in consequence of such injuries.</p>

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

<p>Findings — Failure to Serve Adverse Party — Judgment not Void on Face. — A judgment is not void on its face by reason of the failure of the party directed t'a prepare findings to serve a copy of such proposed findings, as provided by section 634 of the Code of Civil Procedure, upon all other parties to the action at least five days before such findings are signed.</p> <p>Id. — Judgment—When Void. — A judgment is only void when, upon an inspection of the judgment-roll, it appears that the court either did not have or has exceeded its jurisdiction.</p> <p>Id. — Order Directing Preparation of Findings. — An order directing the preparation of findings is not a part of the judgment-roll, and, therefore, an inspection thereof would not' disclose that such direction was given.</p> <p>Id. — Appeal prom Judgment — Waiver op Service op Proposed Findings — Record.—Upon an appeal taken from a judgment upon the judgment-roll and a statement on appeal, it will be presumed that the appellant waived service upon him of the proposed findings, where the statement shows that the respondent was directed to prepare findings, and that they were prepared and signed on the same day, and no affirmative showing made that the appellant did not consent to such waiver of service.</p> <p>Id. — Waiver op Service op Proposed Findings. — The amendment to section 634 of the Code of Civil Procedure, requiring service of proposed findings at least five days before signing, was passed solely in the interest of parties litigant, and its provisions may be waived by them.</p>

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

<p>Deed — Conveyance by Wife to Husband — Life Estate. — A deed of grant by a wife to her husband providing that the property is conveyed to the latter "so long as he shall live, but at his death the said above-described property to revert to the heirs of the said party of the first part,” followed by other general terms to the effect that all and singular the tenements, appurtenances, etc., were to pass “unto the said party of the second part, his heirs and assigns forever,” passes only a life estate to the grantee.</p> <p>Id. — Construction of Deeds.- — Deeds are to be construed like any other contracts, and the intent of the parties arrived at by a consideration of the whole instrument and not of detached clauses.</p> <p>Id. — Purchase of Life Estate — Adverse Possession — Running of • Statute. — Title by adverse possession to property conveyed by such deed cannot be acquired by the purchaser of such life estate against the heirs of the original grantor during the lifetime of the grantee . named in the deed, and the statute of limitations, therefore, does not begin to run against such heirs until the death of such grantee.</p> <p>Id. — Appeal from Order Denying New Trial — Grounds of Motion— Sufficiency of Record. — Upon an appeal from an order denying a new trial, a review of the order is not precluded by reason of the omission to state the grounds of the motion or order, where the transcript shows that the appellants served and filed their notice of intention to move for a new trial, and such notice is set out with general specifications of error.</p>

<p>Negligence — Unloading of Steel Shafting from Freight-car— Method of Eemoval — Carelessness of Foreman — Failure to Give Warning as- to Intentions. — A railroad company is liable in damages for personal injuries received by an employee of a traction company, who had been loaned to it for the purpose of assisting its section foreman in unloading a heavy and unwieldy steel shafting from a freight-ear to the station platform, where such injuries were occasioned by the act of the foreman in raising the shafting on to the steel apron connecting the car door with the platform, which caused the shafting to slide and fall, without first giving the plaintiff or any of his assistants notice of his intentions so to do.</p> <p>Id. — Evidencf—Proper Method of Unloading — Opinion of Experienced Drayman. — In an action for damages for such injuries, the opinion of an experienced drayman accustomed to handling heavy and cumbrous materials of all kinds is admissible as to the proper or more skillful way of removing such shafting.</p> <p>Id. — Rules and Methods of Work — Duty of Master — Proper Instruction. — In such an action an instruction is not inapplicable that it is the duty of the master to exercise reasonable and ordinary care i to adopt “safe rules” and methods of work, and that such duty is one that cannot be delegated in such a manner as to relieve t'he master from responsibility therefor.</p> <p>Id. — Duty to Give Warning — Unobjectionable Instructions. — The reading to the jury of several instructions in which it was stated, in substance, that, if they believed from the evidence that the method adopted for unloading the shafting was a perilous one, and “that the perils of the method so adopted were known to defendant’s foreman before or at the time of the accident', and believe that the plaintiff did not know and in the exercise of reasonable care should not' have known of such peril, then it became the duty of such foreman or boss to notify the plaintiff thereof, and if you believe from the evidence that the plaintiff was injured solely by reason of such failure of duty to notify the plaintiff, then in that ease I instruct you that your verdict must be against the defendant and for the plaintiff,” is not subject to the objection that thereby the court .unqualifiedly and plainly told the jury that the duty to give warning rested on the defendant.</p>

<p>Negligence — Fall of Box from Chute — Knowledge of Dangerous Place of Work — Pleading.—In an action to recover for injuries received from being hit on the back of the hand by a large box falling from a wooden chute which ran from the second to the first floor of defendant’s warehouse, while the plaintiff was standing at the foot of the chute catching boxes as they descended thereon, it is not necessary that the complaint allege directly or by implication that the defendant knew or ought to have known of the alleged defects of the place assigned to the plaintiff to work, where it is alleged that the defendant negligently and carelessly, and without due care, directed the plaintiff to work at' a place or with an appliance that was not safe.</p> <p>Id. — Evidence—Cause of Box Leaving Chute — Opinion of Plaintiff. — In such an action there is no error in permitting the plaintiff to give his opinion as to what caused the box to fly off the chute and fall, where the answer of the witness shows that it was his theory that it was due to the bad condition of the chute rather than as to the way the boxes were dropped into it.</p> <p>Id. — Condition of Chute. — Testimony that on a prior occasion the chute had shifted and that about fifteen minutes after the accident the legs of the chute were in bad condition, is admissible for the purpose of showing its condition at the time of the injury.</p> <p>Id. — Duty to Furnish Safe Place to Work — Proper Instructions.— In such an action instructions are properly given to the effect that it was the duty of the employer to furnish his employees with a reasonably safé place to work, and with reasonably suitable and safe structures and appliances with which to do the assigned work.</p> <p>Id. — False Testimony — Distrust of Witness — Instruction.—An instruction that if the jury considers that any witness has been false in any part of his testimony, such witness is to be distrusted in the remainder of his testimony, omits two essential elements, viz., the willfulness of the false testimony given and its materiality.</p>

<p>Criminal Law — Murder—Intoxicated Condition of Defendant — Instruction. — An instruction in a prosecution for the crime of murder that “no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in that condition, but, whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act,’’ is not erroneous, upon the theory that the plea of “not guilty” interposed by the defendant to the information limited the defense to the sole question as to the commission of the crime by the defendant, and that to have warranted proof of the intoxicated condition of the defendant, it was necessary to set up that fact by way of a special plea.</p> <p>Id. — Plea of not Guilty — Defenses Permissible Under. — The plea of “not guilty” to a criminal charge admits of any defense which the facts justify, except those of once in jeopardy and former acquittal or conviction.</p> <p>Id. — Applicability of Instructions upon Intoxication — Evidence of Defendant. — The defendant in such a prosecution cannot contend that instructions upon the subject of intoxication are inapplicable where he himself brings out the fact of his intoxicated condition at the time of the homicide.</p> <p>Id. — Consideration of Evidence of Intoxication — Instruction—Inference of Commission of Crime by Defendant Unwarranted. An instruction that “it is a well-settled rule that drunkenness is no excuse for crime. Insanity produced by intoxication does not destray responsibility when the party, when sane and responsible, made himself voluntarily intoxicated; and drunkenness forms no defense' whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him t'a avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Such evidence can only be considered by the jury for the purpose of determining the degree of crime, and for that purpose it must' be received with great caution,” is not erroneous upon the theory that the italicized portion trespassed upon the domain of fact by declaring that the defendant did the killing.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order granting alimony pendente lite. Charles Munroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pleading — Amendment—Same Cause op Action — Statute op Limitations. — If the cause of action stated in an amended complaint is a new and totally different one from that stated in the original complaint, the amendment does not relate back to the beginning of the action so as to stop the running of the statute of limitations; but if the amendment is one which merely corrects a defective or erroneous pleading of the same cause of action, the amendment will relate back to the filing of the original complaint.</p> <p>Id.-— Promissory Note — Pleading — Amended Complaints — Same Cause op Action. — In an action on a promissory note, where the original complaint demanded judgment upon a certain promissory note for a certain sum with a certain date and payable one year after date, an amended complaint was afterward filed setting forth a note of the same date and amount as before and in like terms, except that it read ten months after date instead of one year, and omitted the provision for interest contained in the note set out in the original complaint, and a second amended complaint alleged the execution of the note in the same terms as the note set out in the first amended complaint, and alleged further facts showing that at the time of the commencement of the action plaintiff was unable to see the note or obtain a copy thereof, and was obliged to rely upon his recollection of its terms, but that he had seen the note about the date it was made, and alleging that there was but one note for the amount claimed made by the defendant at the date alleged, and that the note sued on in the second amended complaint was the same incorrectly set out in the original complaint; held, that the cause of action set out in all the complaints was the same, and the second amended complaint related back to the time of the filing of the action so as to stop the running of the statute of limitations.</p> <p>Id. — Pledge of Note — Payment of Principal Debt — Liability for Balance of Pledged Note. — Where the maker of a promissory note secures possession of it from one to whom it is pledged, with his knowledge, t'a secure payment of a smaller note, by paying only the amount of the claim of the pledgee therein, leaving a balance unsatisfied on the larger note, the owner of the note is entitled to recover against him for the unpaid balance.</p> <p>Id. — Pledge of Promissory Note — Bight of Pledgee. — A pledged promissory note is not property subject to sale by the pledgee; he has only the right to collect it when due, and, under the circumstances, no transaction could take place between the maker of the larger note and the pledgee which would put' the maker in any better position with respect to the pledged note than that of the pledgee, where the general property of the note still remains in the payee.</p> <p>Id. — Settlement of Claim Secured by Pledge — When Pledgor not Bound. — The contention that, because an action by the pledgee of the promissory note to recover upon it was against the pledgor as well as the maker of the note, and the second amended complaint in this action on the pledged note alleges that, after answer filed, the defendant “settled the said cause of action by then and there paying to said plaintiff in said action” an amount about equal to the principal of the note secured by the pledge, the inference follows that the settlement was made with the pledgor as well as with the pledgee, and the pledgor consented to the surrender of the note to the maker, cannot be maintained, where it' is further alleged that the payment was made on the note secured by the pledge and to settle all claim that the pledgee had as security.</p>

<p>Irrigation Act — Certificate of Sale and Deed — Erroneous Recital of Name of Person Assessed — Void Deed. — A certificate of sale and a tax deed made pursuant to proceedings had under the Irrigation Act of 1897 (Stats. 1897, p. 254) are both invalid under the provision of section 35 requiring the assessment-book to specify the name of the person assessed, section 45 requiring the certificate of sale to state the name of the person assessed, and section 48 requiring that “the matter recited in the certificate of sale must be recited in the deed,” where the name of the person assessed appeared on the assessment-book as “D. Brusehie,” and in the certificate and sale as “D. Bruscia.”</p> <p>Id. — Name of Person Assessed — Recital in Deed. — The provision of section 48 of the Irrigation Act that “the matter recited in the certificate of sale must be recited in the deed” includes the “matter” that the deed shall contain the name of the person assessed, when known.</p> <p>Id. — Tax Deed as Conclusive Evidence — Power of Legislature.— While the legislature can make a certificate of sale or tax deed conclusive as to matters which are in their nature nonessentials, it has not the power to make such documents conclusive as to any of the essentials of listing, valuation, apportionment or notice.</p> <p>Id. — Taxation—Listing of Land for Assessment — Statement of Name of Owner. — The listing of land for assessment necessarily means that the name of the owner, if known, and a description of the property assessed must be “correctly stated.”</p> <p>Id. — Tax Deed as Conclusive Evidence — Proceedings Included. — The provision of section 48 of the Irrigation Act making the tax deed conclusive evidence of the regularity of all the proceedings from the assessment to the deed means all the proceedings other than those as to which the deed by said section is made prima facie evidence.</p> <p>Id. — Date op Sale — Misreoital in Certificate — Effect of. — Under section 45 of the irrigation law providing that the collector must make out in duplicate a certificate dated on the day of sale stating (when known) the name of the person assessed and the time when the purchaser will be entitled to a deed, a certificate of sale dated March 3, 1906, instead of February 20, 1906, the day of sale, is not void, where it is stated therein that the property may be redeemed within twelve months from the former date, which is stated as the date of sale.</p>

<p>Promissory Note — Consideration—Conflicting Evidence — Findings Conclusive. — In an action on a promissory note, where two of the comakers of the note contend that it was given in consideration of the payee desisting from further prosecution of the third maker on a criminal charge, but the evidence is conflicting upon this issue, the findings of the trial court in favor of the plaintiff are conclusive on appeal.</p> <p>Id. — Delivery of Note in Violation of Condition — Ignorance of Payee of Condition — Validity of Note. — In an action upon a promissory note executed by three parties, where two of the makers contend that they signed and delivered the note to the third upon the condition that he should obtain the signatures of two other parties before delivering it to the payee, which condition was not fulfilled, the breach of the condition is not a defense t'a an action upon the note, where the payee was not advised of the condition at the time of its acceptance; and the same is true of a defense that' the signatures of these parties were obtained by fraud practiced upon them by the third party, the payee having no knowledge of these facts.</p> <p>Id. — Consideration—Extension of Time for Payment of Debt. — The extension of time for payment of a debt presently due is a valuable and sufficient consideration for a promissory note given for the amount of the debt.</p>

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

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

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Review to annul a judgment of the Superior Court of Stanislaus County. ' The facts are stated in the opinion of the court.

<p>Criminal Law — Assault With Intent to Murder — Prior Threats— Instruction. — In a prosecution for the crime of assault with a deadly weapon with the intent to murder, the following instruction is not made erroneous by the modification embodied in the phrase and word shown in parentheses, to wit: “One who has received information of threats against' his life or person made by another, is justified in acting more quickly and taking harsher measures for his own protection in event of assault, either actual or threatened, than would be a person who had not received such threat's; and if in this case you believe from the evidence (that the prosecuting witness made threats against the defendant and) that the defendant, because of (such) threats made previously to the transaction complained of by. the prosecuting witness and communicated to the defendant either by the prosecuting witness or some other person, had reasonable cause to fear greater peril in event of an altercation with the prosecuting witness than he would have otherwise, you are' to take such facts and circumstances into your consideration in determining whether defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.”</p> <p>Id. — Evidence of Previous Difficulties — Consideration by Jury— Proper Instruction. — An instruction that the jury might consider the evidence of previous difficulties between the parties for the purpose of determining their state of mind at the time of the assault,' as well as for the purpose of showing malice, is not erroneous.</p> <p>Id. — Justification of Attack — Proper Instruction. — An instruction that “to justify a person for attempting to kill another man upon the ground of self-defense, the attempt must be made under well-founded belief that it was absolutely necessary for such person to kill the other at the time to save himself from great bodily harm. The danger or harm must be present, apparent and imminent,” properly states that the person acting in self-defense and resorting to the use of a deadly weapon must believe that it is absolutely necessary for him to so act in order to justify under the law.</p>

<p>Public Nuisance — Indecent Exhibition of Women — Injunction— Jurisdiction. — The superior court has jurisdiction to restrain the proprietor of a public resort and place of amusement from conducting an indecent exhibition of the persons of the women therein employed, on the ground that such exhibition is a public nuisance, .notwithstanding that' such acts constitute the crime of indecent exposure as defined in section 311 of the Penal Code, for which, upon conviction, the law prescribes a penalty.</p> <p>Id. — Abatement of Public Nuisance. — Any act which is an offense against public decency, or any public exhibition which is offensive to the senses, whether of sight, sound, or smell, or which tends to corrupt public morals or disturb the good order and welfare of society, is a public nuisance, and under the provisions of section 731 of the Code of Civil Procedure, the district attorney is authorized to bring a civil action in the name of the people of the state to abate the same.</p> <p>Id. — Criminal Acts — Injunction.—While courts of equity have no jurisdiction to enjoin the commission of acts merely because such acts when committed would constitute a crime, yet, where the threatened acts, if committed, in addition to being an indictable offense, constitute a public nuisance, such courts are vested with jurisdiction to interpose their injunctive process to prevent injury which will result' from the maintenance thereof.</p>

<p>APPLICATION for a Writ of Prohibition originally made ' to the District Court of Appeal for the Third Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Specific Performance — Contract for Lease of Land — Pleading— Sufficiency of Complaint — Conditions to Execution — Construction of Contract. — A complaint in an action for the specific performance of a contract for a lease of land for the purpose of exploring the same for oil is not subject to general demurrer on the ground that it disclosed that the lease was to be executed only when the patent to the land had been issued and the land conveyed to the defendant, where it is alleged that such defendant had received a conveyance of such land after the issuance to his grantor of the final receipt of the receiver of the United States land office for a patent to such land, and it appears from the contract that no express reference is made therein to a patent, but the execution of the lease was made dependent upon “the consummation of the patent proceedings.”</p> <p>Id. — Contract to Sell to Third Party — Sufficiency of Complaint— —Consummation of Sale not Shown. — In such an action the complaint is not subject to general demurrer in alleging that the defendant, previous to the commencement of the action, made a transfer of all her interest in the property to a third party, where there is no further averment that she had disposed of or sold the land.</p> <p>Id. — Contract for Lease of Oil Lands — Sufficiency of Consideration— Development Work. — “Development work” already performed and to be performed is a sufficient consideration to support a contract for a lease of lands for the discovery of oil.</p> <p>Id. — Lease—Adequacy of Consideration. — An agreement on the part of the lessee of oil land to do all work at his own expense, pay all taxes on the personal property, and pay to the lessor as rent or royalty one-eighth of all the proceeds of oil produced, constitutes a fair, just, and reasonable consideration for the lease.</p> <p>Id. — Pleading — Sufficiency of Complaint — Truth of Pacts. — In passing upon the "question of the sufficiency or insufficiency of a complaint to state a cause of action, it is wholly beyond the scope of the inquiry to ascertain whether the facts stated are true or untrue.</p> <p>Id. — Specific Performance of Contract — Adequacy of Consideration —Pleading and Evidence. — Adequacy of consideration for a contract whose terms are sought to be enforced through a decree of a court of equity must be pleaded and proved.</p> <p>Id. — Public Lands — Receiver’s Pinal Receipt — Conveyance of Equitable Title. — The issuance to an applicant for a patent to government land of the receiver’s final receipt constitutes a conveyance to him by the government of the equitable title, and thereafter the government, until patent is issued, holds the legal title as a mere trustee for the applicant without any further proprietary interest in the land.</p>

<p>Taxes Illegally Collected — Demand for Payment — Mandamus—■ Pleading — Sufficiency of Complaint. — In a suit for a writ of mandamus to compel the supervisors of the city and county of San Francisco to approve and allow a claim for the payment of a judgment for the recovery of taxes illegally collected by the city and county, where the complaint set forth with great circumstantiality the history and nature of the claim, and after doing so averred plaintiff “presented his claim and demand to said board,” the statement sufficiently shows that it was the detailed claim and demand of plaintiff which was brought before the board for its approval, and the complaint was sufficient as against either a general demurrer or a special demurrer for uncertainty.</p> <p>Id. — Claim not Payable Out of Particular Fund — Approval by Board. — The claim for payment of a judgment for the recovery of certain taxes illegally collected by the city and county of San Francisco is one which is not required to be payable out' of the revenues of any particular year or fund, but is a claim that the board of supervisors is bound to audit and approve, and the city is required to pay, irrespective of the provisions of the charter relative to the incurring of indebtedness or payment of claims in excess of the revenues of the city for any particular year,</p> <p>to. — Presentation of Claims to Supervisors — Usual Practice— Mandamus. — Where the usual procedure in the city and county of San Francisco with reference to the allowance and payment of claims is that they shall first be presented to the board of supervisors for its approval, which procedure plaintiff pursued on a claim for payment of a judgment for the recovery of taxes illegally collected by said city and county, plaintiff is entitled to a writ of mandamus requiring the board to follow the usual custom in this respect.</p>

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

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

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

<p>APPEAL from an order of the Superior Court of Fresno County vacating a judgment and setting aside a default. 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 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>

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Habeas Corpus. The facts are stated in the opinion of the court.

<p>Municipalities — Control op Streets — Permits for Moving Buildings — Validity of Ordinance. — The city of Alameda by its charter is given authority as a municipal corporation to “manage and control the streets, roads and highways, and to permit, regulate or prohibit the placing of obstructions thereon, and to ordain, make and enforce within the limits of the city all necessary police, sanitary and other laws and regulations (Stats. 1906-7, p. 1059; Const., art. XI, see. 2)”; and under this grant of power the city has the right to pass an ordinance providing for the issuance of a permit to move a building over the streets of the city upon written application showing the consent of certain property owners, the filing of a bond, and the character of building to be removed, and prohibiting such removal in the absence of the required permission.</p> <p>Id. — Discretion in Granting or Refusing Permit. — The governing body of a municipality has a certain discretion in the granting or refusing of a permit for the moving of a building over the streets, and its conclusion on the subject, in the absence of fraud or circumstances disclosing a manifest abuse of such discretion, is conclusive and not open to question by the courts.</p>

<p>APPLICATION for a Writ of Certiorari originally made to the District Court of Appeal for the Third Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Set Aside Deed — Ebaud and Undue Influence — Sufficiency of Evidence. — In this action to have set aside and declared void a deed made by an aged father of all his property to one of his daughters to the exclusion of his other children, on the ground that the execution of the deed was procured through the frauds and misrepresentations of such daughter, and by the undue influence exerted by hsr upon him at a time when he was enfeebled in mind and health and incompetent to make a deed or dispose of his property, it is held that the findings that" the allegations of the complaint were true are supported by the evidence.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Chief of Police of the City of Los Angeles.</p> <p>The facts are stated in the opinion of the court.</p>

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