Volume 31 — California Appellate Reports

<p>Criminal Law—Robbery—Evidence—Registration at Hotel Hnder Other Than True Name—Verbal Proof by Witness.—In a prosecution for the crime of robbery, it is not error to permit a witness, who went with the defendant on the night of the commission of the crime to an adjoining town, to testify that they went to a hotel and that the defendant registered under a name other than Ms true name.</p> <p>Id.—Statements of Defendant at Preliminary Examination— Proof by Reporter—Reference to Notes not Piled.-—In such a prosecution there is no error in allowing the phonographic reporter who acted at the preliminary examination to refer to Ms original notes to enable him to testify as to certain statements made by the defendant at such hearing, notwithstanding such notes had not been filed.</p> <p>Id. — Contradictory Testimony — Consideration by Jury—Instruction.—An instruction that contradictory testimony is admissible only for the purpose of impeaching t'he credibility of a witness and that the jury might not consider it as evidence of the truth of such statements, is properly refused.</p> <p>Id.—Guilt of Defendant—Taking of Property by Porce and Fear— Use of Disjunctive—Instruction.—An instruction that if the jury found that the taking of the money was accomplished by means of “force or fear,” they could find a verdict of guilty, is not erroneous, notwithstanding that the information charged that the taking was accomplished by means of force amd fear.</p>

<p>APPEAL from a judgment of the Supérior Court of the City and County of San Francisco. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, Robert W. Harrison, Deputy Attorney-General, and Sullivan, Sullivan & Theo. J. Roche, for Appellants.</p>

<p>Mortgage—Fraud on Creditors op Mortgagor—Insufficiency of Evidence—Decision on Former Appeal Conclusive.—In the second trial of an action for the foreclosure of a mortgage, where the court had before it practically the same evidence which was ■before it upon the first trial and also before the supreme court upon the first appeal, the decision of the supreme court upon such appeal as to the insufficiency of the evidence to support t'he defense set up by a judgment creditor of the mortgagor that such mortgage was executed with intent to defraud creditors is conclusive upon the second appeal.</p> <p>Id.—Release of Fractional Acre from Mortgage—Erroneous Finding—Rights of Redemptioner not Prejudiced—Released Portion Without Value.—A judgment creditor of the mortgagor, entitled to be a redemptioner of the property to be sold under the decree of foreclosure and sale, is not injured by an erroneous finding that a small fraction of an acre had been released from the operation and effect of the mortgage, where it is expressly found that such fraction of land was of practically no value.</p>

<p>life Insurance—Action Between Conflicting Claimants—Payment into Court—Pleading.—Where, in an action between conflicting claimants to the amount called for in a policy of life insurance, the insurer does not defend the action but deposits the money in court subject to a determination of such conflicting claims, it becomes immaterial as to whether the complaint states a cause of action against such insurer.</p> <p>Id.—Action on Policy—Rights Under Antenuptial Agreement— Sufficiency of Complaint.—The complaint in such an action is sufficient as between the conflicting claimants, where it is alleged that the plaintiff was induced to marry the insured by an antenuptial agreement, wherein he promised the plaintiff that if she would marry him he would make her the beneficiary of the policy, and that upon his marriage with the intent of performing his agreement he caused the plaintiff to be named as beneficiary and delivered the policy to her, and thereafter secured possession thereof and without her knowledge or consent substituted the defendants as beneficiaries.</p> <p>Id.—Antenuptial Agreement—Reduction to Writing—Nonessential Averment—Presumption.—The complaint in such an action is not subject to general demurrer for failure to allege that the antenuptial agreement was reduced to writing, as such agreement, as a matter of pleading, will be presumed to be in writing.</p> <p>Id.—Execution of Antenuptial Agreement—Writing not Essential. Such an antenuptial agreement is not required to be in writing where the same became fully executed by the act of the insured in procuring Ms wife to be designated as the beneficiary of the policy.</p> <p>Id.—Statute of Frauds—Executed Oral Agreement.—The statute of frauds has no application to executed oral agreements.</p>

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

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

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

<p>Attachment—Defective Affidavit on Undertaking—Amendment.— An undertaking on attachment to which is attached an affidavit of justification of sureties which by inadvertence fails to state whether the sureties are freeholders or householders is subject to amendment, and when amended it has the effect of validating the proceeding from its inception.</p> <p>Id.—Filing of New Undertaking — First Attachment not Abandoned—Intervening -Chattel Mortgage—Lack of Priority.-—The filing of a new affidavit and undertaking on attachment and the procuring thereon of a new writ of attachment to correct the omission in the original affidavit accompanying the undertaking to state whether or not the sureties were freeholders or householders, does not constitute an abandonment of the original or first attachment, so as to permit a chattel mortgage executed between the issuance of the two writs to become a first lien, where the attached property was held by the sheriff at all times under the first attachment.</p>

<p>Justice’s Court Appeal — Dismissal — Lack ot Diligence.—The provision of section 583 of the Code of Civil Procedure that an action shall be dismissed by the court in which the same shall have been commenced, or to which it may be transferred on motion of the defendant, unless brought to trial within five years after the defendant has filed his answer, does not apply to actions pending in the superior court on appeal thereto from a justice’s court, but the court possesses inherent power in its discretion to make an order of dismissal.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Albert Lee Stephens, City Attorney, and Myron Westover, Deputy City Attorney, for Appellant.</p>

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

<p>Mechanics’ Mens — Equitable Jurisdiction — Appeal.—A mechanic’s lien is of equitable cognizance, although created by law; and an appeal in an action to foreclose the same lies to t'he supreme court.</p>

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

<p>School Lands—Redemption prom Delinquent Tax Sales—Failure to Pay Interest—Eppect op Act op May 14, 1915.—Purchasers of school lands sold t'o the state for delinquent taxes in the year 1907, and for which a deed to the state was made in the year 1912, are not entitled to redeem, where they did not, prior to the going into effect of the act of May 14, 1915 (Stats. 1915, p. 605), providing that “the unsold portions of the sixteenth and thirty-sixth sections of school lands . . . shall be sold at public auction by the surveyor-general,” make a payment of all interest due and unpaid on the land as required by section 3788 of the Political Code under the amendment of March 2, 1909 (Stats. 1909, p. 122), along with their payment of the taxes, penalties, and accruing costs.</p> <p>Id.—Status op Depaulting Purchasers — Restoration—Compliance With Existing Laws.—Upon a sale made to the state of school lands for nonpayment of taxes followed by a deed to the state therefor, all rights of defaulting purchasers in such lands are extinguished, and the only method by which they can be restored to their former rights is by compliance with the law existing at the time of making application for such restoration.</p> <p>Ib.—Conditions to Restoration — Right op State to Impose.—The state under such circumstances has the right, as the absolute owner of the lands, to dictate the terms upon which they may be repurchased by the original or a new purchaser, or the conditions upon which the owners or purchasers or their assigns may be restored to their original state or title.</p> <p>Id.—Payment op Interest as Condition to Redemption—Reasonableness op Method.—The method provided by the amendment of 1909 to section 3788 of the Political Code (repealed by the act of 1915) of enforcing payment of interest as a condition to the repurchase or redemption of school lands sold for nonpayment of taxes is not more burdensome than the former method of foreclosure.</p>

<p>Estates or Deceased Persons—Surrender op Stock in Local Corporation to Foreign Executor — Recovery by Subsequently Appointed Local Administrator.—The voluntary surrender by a domestic corporation of stock therein owned by a resident of another state at the time of his death to the foreign domiciliary executor of the deceased, and subsequently to the rightful devisee under the will, prior to any local ancillary administration, constitutes a good defense to an action for the stock brought by the local ancillary administrator against the corporation. "</p> <p>Id.—Personal Property Outside or State—Taking or Possession by Local Administrator.-—Although the executor or administrator of the domicile cannot maintain a suit in another state to recover personal property or collect a debt due the estate, yet he may take possession of such property peaceably without suit, or collect a debt if voluntarily paid, and if there is no opposing administration in the state where the property was situated, its courts will recognize his title as rightful, and protect it as fully as if he had taken out letters of administration there; and the voluntary payment of the debt by such debtor under such circumstances would be good, and constitute a defense to a suit by an ancillary administrator subsequently appointed.</p>

<p>Warehouse—Loss of Stored Goods by Fire—Storage in Fireproof Warehouse—Express Contract—Existence of Implied Contract Immaterial.—Upon an appeal from a judgment in an action against a warehouse-keeper for the loss of stored goods by fire, the judgment must be sustained irrespective of whether an implied contract arose that the goods were to be stored in a fireproof warehouse, where the evidence amply sustains the finding that there was an express contract to that efEect.</p> <p>Id.—Evidence of Express Contract—Advertisements and Printed Matter.—The admission of evidence showing representations by advertisements and printed matter, to the efEect that the defendant had at its disposal fireproof warehouses and offered to customers to furnish storage of that kind, is without error, as it tends to corroborate the evidence of the plaintiff as to the express contract made and found by the court.</p> <p>Id.—Differences in Prices Between Fireproof and Nonfireproof Storage.—The practice or habit of the defendant in charging a different price for storage, according to whether or not it was fireproof, is not admissible, in the absence of knowledge by plaintiffs of such fact prior to the contract of storage.</p> <p>Id.—Character of Storage—Book Entries of Defendant—Self-serving Declarations.—The entry made by defendant’s agent in its order book at the time of the giving of the order to it for storage, not having been seen or known of by the plaintiff when the transaction was closed, is self-serving, and not admissible to corroborate its evidence, consisting of the positive statement of its agent, contradicting plaintiff, that nothing was said in the conversation about fireproof storage, and that the contract was for nonfireproof storage.</p> <p>Id.—Custom as to Limitation of Liability—Lack of Knowledge of Plaintiffs—Proof Inadmissible.—In the absence of any misrepresentation made by plaintiffs as t'o the character of the stored goods, or that they refused upon demand to truly state that character, a general custom among warehousemen to insert in their'receipts a provision limiting their liability for loss by fire to $50 per package, or one of refusing to accept antiques and jewelry of great value, is inadmissible.</p> <p>Id.—Impeachment of Defendant’s Agent—Advertisements.—Defendant’s advertisement of ability to furnish fireproof storage, though unknown to plaintiffs, is admissible, for the purpose of contradicting defendant’s agent’s testimony that nothing was said about storage in a fireproof building.</p>

<p>Contract—Sale of Portion of Salmon Pack on Commission—Subsequent Negotiations for Handling of Entire Pack—Effect of Termination of Negotiations.—An optional agreement entered into between a corporation engaged in the business of packing salmon and a brokerage corporation, whereby the former agreed to deliver to the latter five thousand one hundred eases of certain kinds of canned salmon of the pack of the year 1909, to be sold by the latter at what is conventionally termed the opening price for the pack of that year, thereafter and before delivery to be named, and to be communicated by the former to the latter, and to be by the latter confirmed and assented to within five days after such communication, the latter to receive a brokerage of five per cent upon its sales, is not canceled by negotiations entered into in the early part of the year following the date of the agreement for the handling of the whole pack of the year, amounting to some fifty thousand cases, and the subsequent writing of a letter, referring to the letters by dates containing the proposition as to the handling of the entire pack, and declining the business, as such optional agreement and the subsequent negotiations were separate contracts, and the refusal to make delivery of the cases called for by such agreement constituted a breach of contract.</p>

<p>Action to Recover Money—Executory Contract to Purchase Land— Rescission—Pleading.—A complaint to recover a certain sum of money paid under an executory contract for the purchase of land states a cause of action where it alleges that the defendants without cause repudiated the contract, declared it canceled, and denied to plaintiffs any right or interest thereunder, as, this being true, plaintiffs were relieved from the obligation of further performance' on their contract and were privileged to accept defendants’ renunciation of the contract as a rescission of the same.</p> <p>Id.—Restoration of Consideration.—In the absence of a special demurrer, such a complaint is sufficiently certain in its allegations to the effect that plaintiffs had not received and retained by virtue of the contract anything of value from the defendants, and it was not essential to the statement of a cause of action to allege that the plaintiff had placed or had offered to place defendants in statu, quo before electing to accept defendants’ alleged rescission of the contract.</p> <p>Id.—Pleading and Proof—Partnership Obligation—Individual Liability.—The allegation of the complaint that the contract in controversy was a partnership obligation does not preclude proof of the fact that it was the individual obligation of one of the defendants.</p>

<p>APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a Writ of Mandate to direct the Superior Court of Kern County to issue a citation against the sheriff to show cause why he should not be punished for contempt of court for refusing to obey a Writ of Mandate.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. L. Poster, George E. Whitaker, Charles A. Barnhart, Sullivan & Sullivan and Theo. J. Roche, Leon E. Morris, and Robert M. Clarke, for Petitioner.</p>

APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a Writ of Certiorari to review an order of the Superior Court of San Bernardino County denying a motion to dismiss an appeal from the Justice’s Court. The facts are stated in the opinion of the court.

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

<p>Justices of the Peace — Compensation — Increase During Term of Office—Construction of Constitution.—Justices of the peace of townships are included in the officers referred to in section 9 of article XI of the state constitution, which forbids an increase in the compensation paid to them during their terms of office.</p> <p>Id.—County Governments—Creation of Townships.—The legislature is required, under section 4 of article XI of the constitution, to establish a system of county governments which shall be uniform throughout the state, and under this section the legislature may provide for township organization, but no such township organization has been established, although the legislature from time to time, by various general laws and statutes known as county government acts, has provided for a uniform government of the counties and subdivisions therein, but the townships mentioned in such acts have no governmental machinery or officers so distinct from the county as to identify such townships as being possessed of functions designed to be possessed by “township organization” referred to in section 4 of article XI of the constitution.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Harold A. Gilman, Tanner, Taft & Odell, and Tanner, Odell, Odell & Taft, for Appellants.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County dissolving a restraining order and denying a motion for a preliminary injunction. John M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>A. J. Hill, County Counsel, Hugh Gordon, Deputy County Counsel, and Frederick W. Smith, for Appellants.</p>

<p>Attorney at Law—Disbarment Proceeding—Violation of Confidence of Client—Sufficiency of Evidence.—In this proceeding for t'he disbarment of an attorney at law for violating his oath in certain transactions involving the property of a client, it is held that on the record the court was justified in determining that the accused violated such oath, that the client reposed confidence in him, and that he abused such confidence.</p> <p>Id.—Judgment of Suspension—Time—Contingent upon Payment of ■Claim of Accuser.—A judgment suspending an attorney at law for one year “and thereafter until the claim of the accuser is fully paid,” is warranted, if the amount is ascertained, but is too uncertain to be enforced, except as to the stated period of one year, where the corporate stock wrongfully purchased by the attorney with the money of his client is not shown to be wholly worthless, and the amount lost thereby is not determined.</p> <p>Id.—Suspension of Attorney for Unlimited Period.—In a disbarment proceeding an attorney may be suspended for a period not necessarily limited as a fixed and determinate period of time, but for an uncertain time, subject to the right of the accused to relieve himself therefrom by making restitution of a stated amount of money which he had improperly obtained by means of his misconduct.</p>

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

<p>APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Mandate against the Board of Directors of South San Joaquin Irrigation District, commanding it to call an election for the recall of one of its members.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>Appeal—Judgment-roll—Orders not Incorporated in Bill op Exceptions—Review not Permitted.—Upon an appeal taken from a judgment in an action to quiet title upon the judgment-roll without any bill of exceptions or statement of the case, the appellate court can only consider such papers and orders as are declared by the code to constitute' a part of the judgment-roll; notwithstanding included in the transcript there are certain exhibits and orders upon which reliance is made for a reversal of the judgment.</p>

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

<p>Adverse Possession—Ownership of Adjoining Patented Lands—Inolosure of Both Holdings—Leasing for Grazing Purposes— Insufficient Proof of Title.—Where two brothers owned adjoining quarter-sections of patented land of little value, and neither lived nor resided upon the land covered by his patent for any long period after obtaining it, and neither had lived on any part of the half section for many years, the fact that one of the brothers inclosed both holdings with a wire fence, and leased the land for short periods for grazing purposes unknown to the other brother, is insufficient to sustain a claim to the whole tract by adverse possession.</p> <p>Id.—Hostile -Character op Holding—Essential Element.—In order to make out an adverse possession sufficient to constitute a defense under the statute of limitations, the owner must be notified in some way that the possession is hostile to his claim.</p> <p>Id.—Payment op Taxes—Redemption from Tax Sales—Insufficient Compliance With Statute.—The payment of taxes required as an element of adverse possession is not complied with by the redemption of the land from tax sales.</p>

<p>Justice’s Court Appeal—Motion to Dismiss—Failure of Sureties to Justify—Service of Notice of Justification.—Upon a motion made to dismiss a justice’s court appeal upon the ground that the sureties on the undertaking on appeal did not justify in the manner and form required by law, the decision of the superior court upon conflicting affidavits as to when the notice of justification of the sureties was served, is not subject to review in the appellate court upon certiorari proceedings.</p> <p>Id.—Waiver of Justification—Failure to Appear.—Justification of sureties on an undertaking given on a justice’s court appeal is waived where the party excepting to the sufficiency of the sureties fails to appear at the time and place mentioned in the notice of justification.</p> <p>Id.—Filing of New Undertaking—Prima Facie Justification.—The filing of a new undertaking on the day fixed for the justification of sureties, which has attached to it the requisite affidavit sworn to before the justice, establishes a prima fade justification.</p> <p>Id.—Appeal upon Question of Law—Record—Statement of Grounds. Jurisdiction of a justice’s court appeal taken on questions of law alone is not lost by reason of the omission to include in the statement on appeal the grounds upon which the party appealing intended to rely.</p>

<p>APPLICATION for a Writ of Habeas Corpus 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>Contract—Installation of Elevator Plant—Unsatisfactory Controlling Devices—Unwarranted Removal of Entire Plant by Owner.—Under the terms of a contract for the construction and installation of an elevator plant and service in a building, the owner is not justified in removing the machines installed under the contract on the ground that the controlling devices furnished for the elevators were unsatisfactory, and in installing a particular type of controllers, which could not be purchased .without also purchasing the machine itself, where the construction of the plant was in every other way satisfactory to the owner, and it is shown that other controlling devices were obtainable in the open market which could be used with the installed machines and purchased independent of the machines themselves.</p> <p>Id.—Satisfactory Performance of Contract—What Constitutes.— Where a contract requires work to be done to the satisfaction of the person contracting therefor, only such performance is required as is satisfactory to the mind of a reasonable person.</p>

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

<p>Evidence—Proof of Fact by Inference.—Direct evidence of a fact in dispute is not required in all cases, as the law recognizes the force of indirect evidence which tends to establish such fact by proving another, which, though not in itself conclusive, affords an inference or presumption of the existence of the fact in dispute.</p> <p>Id.—Negligence—Proof by Indirect Evidence.—Negligence, like any other fact, may be inferred from a preponderance of the evidence, whether it be circumstantial or direct, and the plaintiff is not required to prove his case beyond a reasonable doubt.</p> <p>Id.—Injury to Tool-dresser on Oil Derrick—Falling of Improperly Hoisted Oasing-pipe—Inference of Negligence.—In an action for damages for personal injuries sustained by a tool-dresser in a derrick for drilling an oil well from the falling upon his hand of a joint of easing-pipe which he and the driller in charge were endeavoring to hoist from the well, the negligence of the defendant is sufficiently proven by evidence that the driller adopted a plan of handling the pipe, which was testified to by experts as unsafe, and by not using the elevators provided for the purpose.</p> <p>Id.—Master and Servant—Risks of Injury Assumed by Servant.— The ordinary risks which a servant assumes as incidental to his employment are such as may not be avoided by the exercise of reasonable care by the master or by his servant who is superior to the injured servant.</p> <p>Id.—Instruction—Sympathies and Prejudices of Jury—Proper Re.fusal.—An instruction to the effect that the jury should not be governed by sympathy but by the evidence, and that in considering the evidence the jury should- not be influenced by the fact that the plaintiff is a laboring man and the defendant a corporation, is properly refused.</p>

<p>Fish and Game—Power oe Legislature—Constitutional Law.—By the adoption in the year 1902 of section 25% of article IV of the constitution, providing that the legislature may provide for the' division of the state into fish and game districts and may enact such laws for the protection of fish and game therein as it may deem appropriate to the respective districts, the people expressly vested in the legislature of the state the sole and exclusive power-over and control of legislation relating to the fish and game of the state, and withdrew from the local subdivisions of the state whatever power they might have previously exercised over such subject under section 11 of article XI of the constitution, which grants to counties, cities, towns, and townships of the state the right to make and enforce within their respective limits all such local, police, sanitary, and other regulations as are not in conflict ■ with general laws.</p> <p>Id.—Constitutional Provision Mandatory.—The provisions of section 25% of article IV of the constitution are mandatory, notwithstanding the use therein of the word “may.”</p> <p>Id.—Statutory Construction—Permissive Language.—Where the purpose of the law is to clothe public officers with power to be exercised for the benefit of the public, language which is permissive in form is to be construed as peremptory.</p> <p>Id.—Withdrawal oe Police Power.—The people may at any time legally withdraw from local authorities the power of police or any portion thereof which they have by their constitution granted to such authorities.</p>

<p>Mechanic's Lien—Foreclosure—Pleading—Date of Completion of Building—Sufficiency of Complaint.—In an action to foreclose a mechanic’s lien, an allegation that the building was completed “on or about” a specified date, which date was less than thirty days before the alleged date of the filing of the claim of lien, is sufficient to warrant proof of the exact date of completion.</p> <p>Id.—Completion of Contract—Sufficiency of Averment.—An allegation in such an action that the building was completed according to the terms of the contract sufficiently shows that the contract was completed.</p> <p>Id.—Building Contract — Omission to File Bond — Liability of Owner.—Under section 1183 of the Code of Civil Procedure, as amended in 1911, it is the duty of the owner to exact from the contractor a bond and file the same in the office of the county recorder, if he would restrict his liability to laborers, materialmen, or subcontractors for their claims to the contract price, and where he fails to make such exaction, there is then imposed upon him the penalty of paying all liens to the extent of the value of the work done and materials furnished.</p> <p>In.—Completion of Building by Occupation — Omission to File Notice—Estoppel.—The owner of a building is estopped from claiming that the lien of a claimant other than the original contractor was not filed within thirty days after occupation of the building, where no notice of such occupation was filed, as the requirement of section 1187 of the Code of Civil Procedure as to the filing of notice of completion applies as well to the statutory completion of a building by occupation, acceptance, or cessation of labor, as to actual completion.</p>

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

<p>Ejectment — Findings — Lack of Inconsistency. — In an action in ejectment, "wherein the plaintiff alleges seisin or right of possession in itself for the period of five years last past, and also alleges possession on the part of the defendants at the time of the commencement of the action, and the answer of the defendants denies the plaintiff’s possession and right of possession for the period claimed, and alleges that the defendants have be'en in the adverse possession of the premises for more than twelve years, there is no inconsistency between the finding of the plaintiff’s seisin within five years and of the defendants’ adverse possession for the period of twelve years prior to the filing of the complaint, nor is the latter finding sufficient to bar the plaintiff’s recovery under section 318 of the Code of Civil Procedure, where it is also found that the defendants had not paid the taxes for the requisite years.</p> <p>Id.—Failure to Pay Taxes—Invalidity of Assessments—Burden of Proof.—Where in such an action it is admitted that the taxes levied and assessed for the years in question were not paid, and it is contended that the assessments were invalid, the burden is upon the defendants to show such invalidity.</p> <p>Id. — Computation and Entry of Taxes by Auditor — Omission not • Fatal.—A tax assessment is not invalid by reason of the failure of the county auditor to comply with section 3731 of the Political Code, which requires him, after receiving from the state board of equalization a statement of whatever changes have been ordered by said board in the assessment-book of the county, and after making the corresponding changes, if any, in said assessment-book, to then compute and enter in a separate money column in the assessmefntbook the respective sums to be paid as a tax on the property, and segregate and place in their proper columns of the book the respective amounts due in installments, as such work is no part of the levy, but is merely a step in the process of the collection of taxes.</p>

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

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

<p>Contract—Liquidated Damages — Pleading—Insufficiency of Complaint—Substantial Breach not Shown.—In an action to recover the sum of money fixed as liquidated damages for the breach of the terms of a contract guaranteeing that in consideration of a loan of a sum of money to a person to permit him to become a member of a retail liquor partnership, the partners would, during the entire period of the leasehold of the premises wherein such business was being conducted, purchase of the lenders “all steam and lager beer and liquors of every kind and character and all incidentals pertaining to the retail liquor business,” the complaint fails to state a cause of action, where it is only alleged that on or about a stated date the defendant's, contrary to the terms of said agreement and in violation of their obligation thereof, neglected and refused to purchase all lager beer of the plaintiffs as provided in the contract.</p>

APPEALS from judgments of the Superior Court of the City and County of San Francisco and orders denying a new trial. E. P. Morgan, Judge. The facts are stated in the opinion of the court.

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Dunn, White & Aiken, for Appellant.</p>

<p>Negligence — Employer and Employee — Personal Injuries prom Electric Current—Changing Switch Without Notice.—An employee of a corporation who receives personal injuries from a powerful electric current while engaged in replacing a fuse in the electrical apparatus of the company, under the orders of its chief engineer, whose duty it was to make the repair, the accident resulting from the failure of a switch, used to protect the employees while putting in fuses, to perform its functions, the employee having no knowledge or notice of this change of condition in the switch, and having every reason to believe that by manipulating the switch the current would be completely cut off so that the fuse could be inserted without danger, is entitled to recover from his employer damages for the injury sustained.</p> <p>Id. — Contributory Negligence — Failure to Examine Apparatus — When Excused.—Where the proximate cause of the injury was the failure of the switch to disconnect the current, and this resulted from a change made by the company unknown to the employee, it was not negligence for the latter to assume that conditions were as before, and that the switch would disconnect the current; and he was therefore not chargeable with contributory negligence in not examining the apparatus.</p> <p>Id.—Knowledge of Danger—Employee Acting Under Orders.—If the employee had full knowledge of the change in such a case he would not be chargeable with contributory negligence in obeying orders of the chief engineer under whose direct supervision he was acting, unless performance thereof was inevitably or imminently dangerous.</p> <p>Id. — Employers’ Liability Act—Assumption of Bisk. — Under the Employers’ Liability Act in force at the time of the accident in question a defense that the employee assumed the risk of the employment was not open to the defendant.</p> <p>Id.—Measure of Damages—-Discretion of Jury.—In actions for damages for personal injuries it must be largely left to the discretion and sense of justice of the jury, subject to the supervision and correction of the trial court, to determine the amount that will be a fair compensation for the suffering and misery and financial loss endured by the injured party.</p> <p>2b.—Instructions—-Measure of Damages.—In an action for damages for personal injuries, an instruction to the jury that they should assess the damages, if any, in such sum as they believe under all the circumstances and evidence plaintiff ought to recover, if standing alone might be misleading, but where it is supplemented by specific directions as to all the elements of damage that the plaintiff can recover, it cannot be misunderstood.</p> <p>Id.—Statement of Claim—Using Language of Complaint.—There is no error in the court stating the claim of plaintiff in the language of the complaint.</p> <p>Id.— Affirmation of the Issue — Preponderance of Evidence — Definitions of.—Where the court in the instructions given on behalf of the defendant sufficiently defined the terms “affirmation of the issue,” and “preponderance of the evidence,” if any further elucidation was desired, it should have been requested.</p> <p>Id.—Evidence—Hospital Charges.—A motion to strike out the testimony on cross-examination of a doctor as to the value of the hospital services incurred by the plaintiff in an action for damages for personal injuries, the motion being made upon the ground that he was testifying as to what the usual charges were, and not the actual charges in the case, is made too late, where he had so testified on direct examination without objection.</p> <p>Id.—Evidence—Inadmissibility oe Written Report.—Where a witness testified from memory with his written report before him that he was at a certain place at a certain time, the report itself was not admissible as corroboration of this testimony.</p>

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

<p>Criminal Law—Pronouncement oe Judgment—Delay—Eight to New Trial.—Where judgment is not pronounced upon a person convicted of a crime, within the time prescribed by section 1191 of the Penal Code, he is entitled to a new trial, although the delay in pronouncing judgment was had with his consent.</p>

<p>Criminal Law—Prejudicial Remarks op Court to Jury.—It is reversible error in a criminal case, upon the jury returning into court and reporting their inability to agree, for the court to make such remarks as, “I don’t want to decide any question of fact for you; that question though, it seems very plain to me”; and, “You must try to reconcile the testimony if you can and come to a verdict, gentlemen, if you possibly can. These cases are expensive to try”; and “Sow many contrary ones are there?” and “Questions of fact you must decide; there oughtn’t to be any trouble. It’s a case you ought to decide, ought to agree upon and don’t make up yowr minds that you can’t agree, don’t get contrary but just in a good humor, good-natured way work it out.”</p>

<p>Criminal Law—Embezzlement—Larceny.—If one honestly receives goods upon trust, and afterward fraudulently converts them to his own use, he is guilty of embezzlement; but if he obtains possession fraudulently, with intent to convert the same to his own use, and the owner does not part with the title, the offense is larceny.</p> <p>Id.—Wrongful Taking of Money by Wife—Husband as Aider and Abettor—Evidence—Unwarranted Conviction of Grand Larcent.—The conviction of a married man of the crime of grand larceny on the theory that he aided and abetted his wife in the wrongful taking of money by her, cannot be sustained, in the absence of any evidence showing that the taking of the money was the result of a fraudulent and felonious design of the defendant and his wife conceived before she obtained' employment in the commercial college from which the money was taken, and it is shown by the evidence presented that the money came into her control and care while employed in such college as a stenographer, and that among the duties assigned to her was that of selling small articles of merchandise, receiving the money therefor, and depositing the same in the cash register, to which she was given free access to make change and permission to handle the money therein.</p> <p>Id.—Statement of Different Offenses—Omission to Conclude Each Count With Phrase “Contrary to Form of 'Statute”—Suffi- ■ cienoy of Information.—An information in three counts, each stating a different offense, is not prejudicial to the defendant, because of the omission to conclude each count with the statement that the commission of the offense was “contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state,” etc., where the information is ended with such statement.</p> <p>Id.—Different Offenses—Number of Peremptory Challenges.— Under an information charging more than one offense, the defendant is entitled to but ten peremptory challenges in all, and not ten as to each offense.</p> <p>Id.—Charge of Different Offenses—Election not Required.— Under an information charging more than one offense, the people are not required to make an election, before offering proof, upon which count they intend to rely.</p>

<p>Bank Deposit—Attachment op—Substitution op Parties.—Under the provisions of section 386 of the Code of Civil Procedure, in an action brought against a bank by a married woman to recover money on deposit therein in her name, which the bank refused to pay to her because it had been attached for a debt of the husband under the claim that it was his money, the bank has the right, upon payment of the money into court, to have the plaintiff in the attachment suit substituted as party defendant in its place.</p> <p>Id.—Purpose op Section 386, Code op Civil Procedure—Construction.—The design of section 386 of the Code of Civil Procedure is to enable a party who has been sued upon a contract as to which he admits full liability as to the amount thereof to show that a third party not named in the action claims some right to the proceeds of the contract either by way of complete ownership or that he possesses a lien against the same; and so showing, to deposit the money due in court and have the third party made defendant in his stead, thus placing in positions of adversaries the real parties at interest.</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 made after judgment directing the clerk to issue execution. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Costs—Reporter’s ’Transcript—Appeal.—Where a judgment is affirmed on appeal, the respondent is not entitled to recover the amount paid for the reporter’s transcript of the testimony taken at the trial, which was obtained solely for the purpose of assisting respondent’s counsel in the preparation of amendments to a bill of exceptions proposed by the appellant on its motion for a new trial in the superior court.</p> <p>Id.—Cost of Printing Answer to Petition for Rehearing—When not Allowable.—Where a judgment affirmed on appeal had become final prior to the going into effect of the amendment of 1913 to section 1027 of the Code of Civil Procedure, allowing the costs of printing briefs to a limited amount as part of the costs on appeal, the respondent is not entitled to the cost of printing her brief in answer to the petition of the appellant for a hearing of the appeal in the supreme court after decision by the district court of appeal, notwithstanding the provision of section 1034 of such code that the time for filing a memorandum of costs on appeal is limited to begin after the filing of the remittitwr in the superior court.</p> <p>Id.—Time of Accrual of Costs.—The right of the prevailing party to recover any costs on appeal is obtained by virtue of the judgment as rendered, and this necessarily includes the assumption that he is to have those costs and only those costs to which he is entitled by law at the time of the rendition of such judgment.</p>

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

<p>San Bernardino County Charter—Amendment Concerning County Officers — Effect of.—The amendment to the charter of the county of San Bernardino approved by the electors at the general election held in November, 1914, and approved by the legislature by resolution which was filed with the Secretary of State January 30, 1915 (Stats. 1915, p. 1727), which, without naming any of the seven articles contained in such charter, purported to strike from such instrument “sections 4, 5 and 6 of said charter” and insert in lieu thereof the following amendment to be known as section 4 thereof, to wit: "Section four (4): All county officers other than supervisors of said county shall be elected at each general election by the qualified electors of said county as is now, or may be hereafter provided by general law, and all deputies and assistants to such county officers shall be appointed as is now or may be hereafter provided by general law; and the powers and duties of such officers, deputies and assistants shall be such as are now or may be hereafter provided by general law, and any part of this charter in conflict herewith is hereby repealed,” is fatally defective as an attempted direct repeal of any sections of the original charter, because it is impossible to determine what sections of the charter are intended to be repealed; but such amendment is effective in that it adds to the charter a new section, and by so doing impliedly repeals those provisions contained in the original charter which relate to the same subject matter as the new section and are in conflict therewith.</p> <p>Id.—County Officers—Sheriff and Coroner—Charter Provisions not Repealed by Amendment.—Section 1 of article II of the charter of the county of San Bernardino which provides for certain county officers, including a sheriff and a coroner, and section 2 of the same article which provides that the sheriff shall be ex-officio coroner, were not repealed either expressly or impliedly by the charter amendment adopted at the general election held in November, 1914.</p> <p>Id.—Consolidation of Offices of Sheriff and Coroner — Valid Charter Provision.—The office of coroner is a separate office from that of sheriff, with separate duties and powers as provided by law, and when the sheriff is performing the duties of coroner he is in contemplation of law the coroner of the county as distinctly and completely as any other duly appointed or elected person would be when lawfully performing those duties, and therefore, the powers and duties pertaining to the office of coroner are not affected by the charter provision that the person appointed as sheriff shall also be the coroner.</p> <p>Id.—Officers Provided for by Charter not Abolished by Amendment.—Such amendment in providing that all county officers other than the supervisors shall be elected as is now or may be hereafter provided by general law, and that the powers and duties of such officers shall be such as are now or may be hereafter provided by general law, did not intend to refer only to those officers provided for by general law, and thereby eliminate some county officers provided for by the charter and not by general law, so that such offices ceased to exist.</p> <p>Id.—Charter Provisions as to Consolidation of County Offices— Section of Political Code—Provisions not Superseded by.—The provisions of the charter of the county of San Bernardino with respect to the consolidation of county offices, even under such charter amendment, are not superseded by the terms of section 4017 of the Political Code upon the same subject, and which does not provide for the consolidation of the offices of sheriff and coroner, in view of section 7% of article XI of the constitution, which provides that county charters shall provide “for the consolidation and segregation of county offices.”</p>

<p>Dismissal of Action—Failure to Prosecute With Due Diligence— Stipulation Dropping Case from Calendar—Action Properly Dismissed.—An action at issue for over seventeen years and not in the meantime brought to trial, is properly dismissed under the provisious of section 583 of the Code of Civil Procedure for failure to prosecute with due diligence, although the parties sixteen years previous to the service of the notice of the motion to dismiss entered into a stipulation that the action be dropped from the calendar to be reset upon notice.</p>

APPEALS from orders of the Superior Court of Fresno County denying motions to strike out cost bill. Geo. E'. Church, Judge. The facts are stated in the opinion of the court.

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

<p>Contract for Filling in Land—Recovery of Balance Due—Pleading—Unwarranted Verdict.—In an action by a dredging company to recover the balance due for material furnished and work performed under a contract for the filling in of a tract of land owned by a railroad company, the jury is not warranted in allowing the plaintiff in addition to the number of cubic yards found to have been deposited multiplied by the contract price per cubic yard, an amount based upon evidence that the hardest part of the work had been done when the plaintiff discontinued the work, in the absence of any averment in the complaint authorizing such additional allowance.</p> <p>Id.—Nature of Work—Mechanics’ Lien Law Inapplicable.—The filling in of a part of a tract of land of fifty or more acres belonging to a railroad company, having for its principal object the location and opening of an avenue across the land and to provide a roadbed to which the line of another railway company might sometime be removed from its present location between the company’s tracks and the proposed avenue, is not within the provisions of section 1183 of the Code of Civil Procedure which gives a lien to “all persons . . . performing labor upon, or furnishing materials to be used in the construction, alteration, addition to, or repair, either in whole or in part, of any building . . . , railroad, wagon-road or other structure,” etc.</p> <p>Id.—Number of Cubic Yards Deposited—Acceptance of Monthly Vouchers.—Monthly vouchers made out by the defendant showing the estimated amount due for work done during the previous month and, as provided by the contract, the installment of seventy-five per cent due and twenty-five per cent retained, are not to be regarded as accounts stated, as to the number of cubic yards actually deposited, in the absence of any evidence other than a receipt signed by the plaintiff at the bottom of each voucher for the amount thereof.</p> <p>Id.—Delay in Payment—Acceptance of Money on Overdue Vouchers— Lack of Estoppel.— The acceptance of money on such vouchers at dates later than provided in the contract, without protest, does' not estop the plaintiff from denying that payment for a subsequent month was not tendered in time, where the defendant was notified that prompt payment must be made in the future.</p> <p>Id.—Pleading—Damages—Failure to Maintain Levees—Failure to Construct in Time—Separate Counts—Lack of Prejudice.—In such an action the setting up as separate causes of action alleged damages for failure to maintain the levees necessary to impound the material deposited, and for the failure to have the levees in readiness at the time promised, is not prejudicial, where there was evidence sufficient to support the verdict on both counts.</p> <p>Id.—Evidence—Letters—Lack of Preliminary Proof of Authenticity—Insufficient Ground of Reversal.—In such action, the admission in evidence of certain letters purporting to have been written by defendant’s engineer in charge of the work, which to some extent conceded the defendant’s default in failing to construct the levees to impound the material, and which were received by the president of the plaintiff company through the mail, without preliminary proof of their authenticity, is error, but not so prejudicial as to justify a reversal, where the genuineness of the letters was not challenged, and the writer and the recipient were both present in court, and the latter testified that he received the letters from the former through the mail.</p>

<p>Criminal Law—Burglary—Qualification of Jurors—Implied Bias —Contradictory Answers—Province of Trial Court—Beview upon Appeal.—Where, on the impaneling of a jury for the trial of a defendant charged with burglary, some of the jurors, in reply to questions by defendant’s counsel, stated that the accused would be required to produce evidence in his favor to create a reasonable doubt in their mind as to his guilt, but upon being questioned by the district attorney each declared that, if accepted as a juror in the case, he would at all times give the defendant the benefit of the presumption of innocence until his guilt was satisfactorily proved and acquit him if, after a full and fair consideration of the evidence by the light of the court’s instructions upon the law, he entertained a reasonable doubt of the defendant’s guilt, it was the province of the court, under this state of the record, to determine whether or not such jurors were disqualified for implied bias; and its discretion will not be disturbed on appeal unless it appears that it has been abused.</p> <p>Id.—Evidence — Description of Defendant and Companion.—In a prosecution for the crime of burglary, there is no error in permitting the people to prove that the defendant and another man, who was shown to have been the defendant’s companion, applied for and obtained work together, that the defendant wore a particular kind of cap, that Ms companion wore a particular kind and size of shoes, that footprints in the snow leading to the burglarized premises corresponded in size with the shoes worn by the two men, and that the remnants of a leather case in which one of the stolen articles was incased were found a few days after the burglary in a town toward which the defendant and his companion were seen hastily going by foot on the night of the crime.</p> <p>Ib.—Statements Concerning Possession or Stolen Property—Admissibility op.—Statements made by the defendant when placed under arrest, involving conflicting or inconsistent explanations concerning the possession of one of the stolen articles, are properly admitted in evidence, without a preliminary showing that they were voluntarily made, as they do not involve a confession of guilt.</p> <p>Id.—Seasonable Doubt as to Degree op Crime—Duty op Jury—Instruction.—An instruction that “under the information in this case you may, if the. evidence warrant it, find the defendant guilty of burglary of the first degree or burglary of the second degree. Should you entertain a reasonable doubt as to which of the two degrees he is guilty, if any, you will give the defendant the benefit of the doubt and acquit him of the higher offense,” contains no intimation that the defendant is guilty of the crime of burglary, but obviously means that, if the jury find by the proper degree of proof that the defendant committed the crime charged, but should entertain a reasonable doubt as to which of the degrees of that crime, if any, he was, under the evidence, guilty of, then he would be entitled to the benefit of that doubt and in that case should only be convicted of the lower degree of the crime.</p> <p>Id.—Circumstantial Evidence—Instruction.—An instruction explaining that where circumstantial evidence is solely relied upon for the proof of an accused’s connection with the commission of a crime, “any fact essential to sustain the hypothesis of guilt and exclude the hypothesis of innocence,” and any single fact from which the inference of guilt is to be drawn, “must be proved by evidence which satisfies the minds and conscience of the jury to the same extent that they are required to be satisfied of the facts in an issue in cases where the evidence is direct,” is not argumentative, but if it were, the defendant cannot complain of it, where the record shows that it was given and read to the jury at his request.</p> <p>Id.—Verdict op Conviction—Circumstantial Evidence—Sufficiency op.—On appeal from a judgment of conviction of burglary in the first degree, it cannot be said that the verdict was not justified, where the proof showed the presence of the defendant and his companion in the town where the crime was committed just before such commission, the correspondence in size of the footprints on the surface of the snow leading to and from the burglarized building with the shoes worn by the defendant and his companion, the finding at a place in which direction the accused were seen traveling, of a part of the leather case in which one of the stolen watches was incased when taken from the building, a short time after the burglary, the possession by one of the parties of one of the stolen watches, and the contradictory statements made by the defendant and his companion in attempting to explain such possession.</p>

<p>Contract—Plumbing—Abandonment by Owner—Remedy.—Where a contract to furnish and install the plumbing in a building is abandoned by the owner before completion, the contractor is entitled to recover the reasonable value of the materials furnished and the work performed.</p>

<p>Assault and Unlawful Imprisonment—Force Used by Defendant— Question for Jury—Appeal.—In an action for damages for an assault and battery and for an unlawful imprisonment following an altercation concerning the ownership of a ten-dollar bill, it is for the jury to determine from the evidence whether or not excessive and unnecessary force was used upon the person of the plaintiff, and where there is evidence favorable to the plaintiff upon such issue, the verdict of the jury is conclusive on the appellate court.</p> <p>Id.—Award of Damages—Discretion—Excessive Verdict—Review on Appeal.—As a general rule, what will be a proper and reasonable compensation for the damages occasioned by injuries to the person is a question committed to the sound discretion of the jury. In considering an attack upon a verdict as excessive the appellate court must treat every conflict of the evidence as resolved in favor of the respondent, and must give him the benefit of every inference that can reasonably be drawn in support of his claim.</p> <p>Id.—Arrest “Without Legal Justification”—Damages—Instruction. An instruction defining an arrest, and then stating that “for a private person to take another into custody, without legal justification, and restrain him of his liberty for a time and then turn him loose without taking him before a magistrate, or to a peace officer, is unlawful, and constitutes a trespass upon the liberty of the one so restrained for which he may be compensated in damages,” is not prejudicial, for failure to adequately explain the words “without legal justification,” where in other instructions, to which no objection is made, the court gives instructions showing the circumstances under which an arrest or imprisonment is legal or justifiable and also the circumstances under which an arrest or imprisonment is not legal or justifiable.</p> <p>Id.—Evidence—Verdict not Excessive.—In an action to recover damages for injuries received from an assault and battery and from an unlawful imprisonment, the complaint being in two counts, it cannot be said that a verdict in the sum of two thousand five hundred dollars is excessive, where the jury is instructed that only actual damages are recoverable, and the evidence shows that the plaintiff was an unmarried woman and in good health at the time of the alleged occurrence, that she suffered much humiliation and distress of mind at the time and afterward, caused by being arrested and imprisoned in a caged wagon in a public street and in the presence of her neighbois, and that this caused great nervous excitement and shock, which seriously affected her health íor a considerable time after the occurrence.</p>

<p>Criminal Law—Assault to Murder—Insanity from Use of Alcoholic Liquors—Refusal of Instruction on Law of Settled Insanity — Prejudicial Error.—In a prosecution for the crime of assault to commit murder, it is prejudicial error to refuse an instruction proposed by the defendant on the law of insanity brought on by the use of intoxicating liquors that will excuse a criminal act, where it was expressly admitted by the people that the defendant was not intoxicated at the time of the assault, and there was evidence introduced which would support the theory that the alleged insanity of the defendant was the effect of long-continued intoxication prior to the commission of the crime.</p> <p>Id.—Character of Mental Derangement—Erroneous Instruction— Questions of Pact.—The reading to the jury, as a part of the instructions in the case, of the following language ts,ken from a recent decision of the appellate court, to wit: “Defendant’s normal condition was that of a sane man. His alleged mental derangement was not only transient in character, but such condition was the result of his voluntary acts in the use of alcoholic liquors. Under such circumstances, one prosecuted for the commission of a crime cannot urge such condition as a defense thereto,”—is prejudicial error, as the question whether the defendant’s mental derangement was only of a transient character, and his condition the result of his voluntary acts in the use of alcoholic liquors, was a question solely and exclusively for the jury.</p> <p>Id.—Temporary and Settled Insanity—Use of Intoxicants.—There is a well-recognized distinction in law between temporary insanity or mental aberration brought on by voluntary intoxication and “settled insanity” superinduced by long-continued indulgence in alcoholic liquors. A sane person who voluntarily drinks and becomes intoxicated is not excused; but if one, by reason of long-continued indulgence in intoxicants has reached the stage of chronic alcoholism where the brain is permanently diseased and where permanent general insanity has resulted, he is not legally responsible for his acts.</p> <p>Id.—Temporary Derangement prom Use of Intoxicants—Evidence— Motive ob Intent.—Mere temporary mental derangement resulting from the use of intoxicants, whether it manifests itself in the form of delirium tremens or in some milder form, cannot operate to absolve a person from liability for a criminal act, and testimony disclosing that precise mental state at the time the criminal act was committed is admissible only where the existence of a particular purpose, motive, or intent is a necessary element of the crime charged, and then it may be considered by the jury, not as the predicate for the full exoneration of the accused, but solely to enable or assist them in determining the purpose, motive, or Intent with which he committed the act.</p> <p>Id.—Scope of Defense—Opening Address of Counsel.—A defendant in a criminal case, in making a defense and proving his case, is not necessarily required to remain strictly within the literal scope of the defense outlined by his counsel in his opening address to the jury.</p>

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Review to annul the action of the Industrial Accident Commission, awarding an employee compensation for injuries. The facts are stated in the opinion of the court.

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

<p>Change of Place of Trial—Affidavit of Merits—Affidavit of Third Party — Section 396, Code of Civil Procedure.—An affidavit of merits, under section 396 of the Code of Civil Procedure, on motion for a change of place of trial, may be made by any person on behalf of the defendant who is sufficiently familiar with the facts of the case to make the same.</p> <p>Id.—Insufficient Affidavit—Amendment.—An affidavit of merits, on motion for a change of place of trial, made by the defendant’s wife, which is insufficient by reason of containing affiant’s mere conclusion ■as to defendant’s residence, may be amended, and the affidavit of residence and merits of the attorney for the defendant, which is admittedly sufficient in form, may be considered as an amendment to the prior affidavit.</p>

<p>Sale of Produce—Place of Delivery and Acceptance—Evidence.—< In an action to recover the price of certain produce alleged to have been sold and delivered to the defendant pursuant to the terms of a written contract, which designated the place of delivery and acceptance as different from the place of shipment, the admission of proof that prior to and at the time of such shipment the authorized agent of the defendant approved and accepted such produce at the point of shipment does not constitute a variance of the terms of the writing by parol, but amounts to evidence of a waiver of such provision of the contract upon the part of the defendant.</p> <p>Id.—Authority of Agent—Conflict of Evidence—Appeal.—Where the evidence is conflicting as to whether the person who acted for the defendant was the duly authorized agent for the purpose of accepting the produce at the point of shipment, the finding of the trial court on such issue is conclusive on the appellate court.</p>

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

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

<p>Attachment—Release—Subsequent Bankruptcy of Defendant— Entry of Qualified Judgment—Liability of Sureties—Right of Plaintiff.—Where in an action for goods sold and delivered the property of the defendant is attached and afterward released upon the giving of an undertaking conditioned that if the plaintiff should recover judgment the sureties upon demand would pay the amount thereof, the plaintiff is entitled, where the defendant by way of supplemental answer sets up his adjudication and discharge in bankruptcy since the commencement of the action, to have a special or qualified judgment entered against the defendant with a perpetual stay of execution, for the purpose of enforcing the liability of the sureties on the undertaking.</p> <p>Id.—Procedure—Motion for Entry of Qualified Judgment at Close of Trial.—Under such circumstances, it is proper procedure to enter such a judgment upon motion made at the conclusion of the trial of the issues raised by the original pleadings and supplemental answer.</p> <p>Id.—Pleading — Attachment and Release — Evidentiary Matters.— Under such circumstances it is not necessary to the entry of the judgment against the defendant, for the special purpose of fixing and enforcing the liability of the sureties on the undertaking, that the plaintiff should plead the issuance of the writ of attachment, its levy, the giving of the undertaking for the release, or the release of the property, as the same are purely evidentiary matters.</p> <p>Id.—Appeal from Judgment—Review of Errors Occurring During Trial.—In such an action alleged errors in excluding proof of the issuance of the writ of attachment and the execution of the undertaking are reviewable upon appeal taken from the judgment, where the appeal was taken after the abrogation by the legislature of 1915 of the right to appeal from an order denying a new trial (Stats. 1915, p. 209).</p>

<p>Criminal Law—Murder—Self-defense—Doctrine of Apparent Danger—Inconsistent Instruction.—In a prosecution, for the crime of murder, where the plea made by the defendant is that of self-defense, an instruction that there must have been a present ability on the part of the assailant to accomplish his criminal design.in order to justify the person assailed in taking his life is inconsistent with the doctrine of apparent danger to one who is assailed, but is not so misleading as to have caused a miscarriage of justice, where the evidence shows whatever real or apparent necessity defendant believed to exis't for the killing was created by his own fault.</p> <p>Id.—Plea of Self-defense—When not Available—Seeking of Quarrel.—An instruction that self-defense is not available as a plea to a defendant who has sought a quarrel with a design to force a deadly issue and thus, through his fraud, connivance, or fault, create a real or apparent necessity for the killing, is proper, where the evidence shows that whatever real or apparent necessity the defendant believed to exist for the killing was created by his own fault.</p> <p>Id.—Doctrine of Self-defense.—The doctrine of self-defense presupposes that one who would avail himself of it has, without his fault, found himself in threatened danger of serious bodily injury, to avert which the law gives him the right to resort to extreme measures. But the plea is not available to him where he willfully and without any necessity for his own protection creates the danger with which he is threatened.</p> <p>Id.—Return of Jury for Further Instructions—Right of Defendant. Upon the return of the jury for further instructions while deliberating on the verdict, the defendant is not entitled as a matter of right to have read to them instructions not called for, or to have all of the instructions upon a given subject read, when such as are read are stated to be satisfactory to them.</p> <p>Id.—Argument of District Attorney—Comment upon Failure of Defendant to Deny Self-incriminatory Statement—Lack of Prejudice.—In such a prosecution, while it is wrong for the district attorney in his argument to the jury to make reference to the fact that the defendant, while on the witness-stand, had failed to make denial of a somewhat self-incriminatory statement which he made at the time of his arrest and which was introduced in evidence, such misconduct is not prejudicially erroneous, under section 4y2 of article VI of the constitution, where the jury was fully advised as to the subject matter of such statement through other testimony.</p> <p>Id.—Misconduct of District Attorney—When Ground for Beversal. Where misconduct of the district attorney is claimed as prejudicial, if attention is called to it and the court instructs the jury to disregard it and not allow themselves to be influenced by it, the misconduct must be flagrant and obviously prejudicial to justify a reversal.</p>

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

<p>Condemnation ot Land eor Levee—Evidence—Opinion op Value-Other Sales—Improper Redirect Examination.—In an action in eminent domain brought by a reclamation district, to condemn a strip of land as a part of a right of way for a levee, it is error to permit the plaintiff upon redirect examination of one of its trustees, who had on direct examination given his opinion as to the market value of the strip, to state that he based his opinion upon what other lands in the district of a similar character as to quality had been sold for to the district, although the defendant on cross-examination brought out the fact of other sales and the prices at which they were made, but such error is without prejudice, where it is obvious from the verdict that the jury did not accept the testimony of the witness as to value.</p> <p>Id.—Other Sales and Prices Obtained—Proper Cross-examination —Limited Purpose.—In such an action it is proper to bring out on the cross-examination of a witness as to value the fact of other sales in the district and the prices at which they were made, for the purpose of testing the witness’ knowledge and impeaching his opinion, but not for the purpose of fixing the value of the strip in suit.</p> <p>Id.—Value of Land—Eight of Owner.—The owner of land sought to be condemned is entitled to its actual market value for the most valuable use or uses to which it is adapted or may be put, and the prices at which other lands of like quality and adaptation and similarly situated may have been sold cannot reasonably be accepted as a just criterion for measuring, and finally ascertainintr. the actual value of the land sought to be taken.</p>

<p>Corporation—Subscription for Stock—Payment by Note—Eight to Eecall in Event of Dissatisfaction With Purchase—Validity of Agreement.—An agreement made by a fully organized corporation with a subscriber for a certain number of shares of its stock that the subscriber should have the right at any time within ten months after the date of the subscription agreement to cancel his subscription by recalling his note, if dissatisfied with his purchase, is enforceable against the corporation, where it is not shown that any later subscriber was defrauded by reliance upon such subscription, or that any subsequent creditor relied thereon in dealing with the corporation, or that there Was any secrecy contemplated or connived at by the subscriber in the making of such agreement.</p>

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

<p>Exchange of Real Property—Homestead—Reformation and Specific Enforcement.—A husband and wife are not entitled to have a written contract for an exchange of real property reformed and then specifically enforced where the writing consisted of a written offer made and signed only by the husband and accepted in writing by the defendant, and the property of the plaintiffs was encumbered with' a homestead declared by the wife.</p> <p>Id.—Homestead—Encumbrance—Strict Compliance With Statute. The policy and purpose of section 1242 of the Civil Code is to prevent the destruction or encumbrance of a homestead by either spouse acting alone, and a purported conveyance or encumbrance of the homestead by either spouse not made in strict compliance with the requirements of such section is invalid and inoperative for any purpose.</p>

<p>Bank Deposit — Joint-.Ownership — Bight op Survivorship — Construction op Deposit Agreement.—The deposit by two persons of a sum of money in a bank in a joint account and under a written agreement that the same and any additional money deposited, and all accumulations thereof, shall be payable to and collectible by them, or either of them, during their joint lives, and then belong absolutely to and become the absolute property of the survivor, without reference to or consideration of the original or previous ownership of such moneys, creates a joint ownership in the moneys with the right of ownership in the survivor upon the death of the other depositor.</p> <p>Id.—Competency to Execute Agreement—Findings on Conflicting Evidence—Appeal.—In an action brought after the death of one of the parties to such a deposit agreement to recover the amount of the deposit, based upon the ground that the deceased was incompetent to execute such an agreement, where the evidence is conflicting, the findings of the trial court as to competency are conclusive on the appellate court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Madera County, and from an order denying a new trial. Charles 0. Busiek, 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 Riverside County, and from an order denying a new trial. F. E. Densmore, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Promissory Note—Default in Interest—Exercise of Option—Tender—Conflicting Evidence—Appeal.—In an action to recover on a promissory note, which contained a provision that if interest payments were not made when due, the whole sum of principal and interest should become immediately due and payable at the option of the holder, the finding of the trial court, on conflicting evidence, that the option to mature the note had been exercised prior to the alleged tender of the overdue interest is conclusive upon the appellate court.</p> <p>Id.—Agreement not to Sell Note—Keeping of Pledged Stock Available for Voting Purposes—Eight of Payee After Default.—An agreement made at the time of the execution of a note and as a part of the consideration therefor that the payee would not negotiate or sell or allow the note to go out of his possession other than to deposit it in a bank until the same became due, and that he would keep certain stock delivered to the payee as collateral security at all times available, so that the maker of the note could use or vote the stock in any stockholder’s meeting of the corporation, is not to be Construed as an agreement which would hinder the payee from transferring the note after default had been made in the payment of interest, or for the purpose of collecting the debt.</p>

<p>Vendor and Purchaser—Extension of Time of Payment of Installment of Purchase Money—Construction of Agreement—Time as of the Essence of the Contract Included.—Where an agreement extending the time for making payment of an installment of the purchase price of real property expressly provided that the agreement was “subject to all of the terms, covenants, and conditions” of the original contract of sale, such provision had the effect of carrying into such agreement all of the terms and conditions of the original contract, including the provision that time was of the essence of the contract, and no express declaration in such agreement to that effect was essential.</p> <p>Id.—Default—Termination of Rights of Vendees.—Under the terms of such an extension agreement, the default in making the payment at the time therein provided, unexcused and not waived, ipso facto terminated the rights of the vendees under the original contract.</p> <p>Id.—Acts of Vendees After Default—Right to Declare Time of Essence not Waived.—The right to declare time of the essence of Buck contract after default in making payment is not waived by the vendor in thereafter making no protest against the efforts of the vendees to sell the property and in the making of surveys, where the contract contained no requirements that the vendees should perform such acts. '</p> <p>Id.—Tendee oe Deed—When Unnecessary.—Where under the terms of such a contract the deed to the property had been delivered to a third party with instructions to deliver to the grantees upon payment of the price, no further tender of the deed was necessary to declare a forfeiture upon default of the vendees.</p>

<p>APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. M. L. Short, Judge.</p> <p>The facts are stated in the opinioii of the court.</p>

<p>Negligence—Collision at Bailroad Crossing—Obstructions—Failure to Stop and Listen—Contributory Negligence.—In an action for damages for personal injuries received from a collision between an automobile driven by the plaintiff and a freight train of the defendant at a grade crossing on a public highway, the plaintiff is guilty of such contributory negligence as to preclude recovery, where it is shown by his own testimony that the view of approaching trains at the place of the accident was obstructed by a dense growth of sunflowers and weeds, which was well known to the plaintiff, and that he did not, upon approaching the crossing and while within the lines of the right of way of the railroad company, stop his machine, or look or listen for an approaching train.</p> <p>Id.—Obstructed View at Grossings—Duty of Travelers.—While it is true that the rule requiring the traveler to stop at railroad crossings and look and listen for approaching trains is not an absolute one, yet if the view is obstructed he must place himself in a position where he can use his faculties of observation to advantage.</p> <p>Id.—Lack of Negligence of Train Operatives—Bight to Assume— Erroneous Instruction.—An instruction advising the jury that the plaintiff had the right .to assume that the defendant’s employees would observe the law requiring them to ring the bell and sound the whistle when approaching the crossing is erroneous.</p> <p>Id.—Action Against Bailroad Company and Train Operatives— Judgment Exonerating Agents—Acquittal of Company.—In such an action, where recovery is sought against the railroad company and its servants, based upon the acts of the latter in running the train at a high rate of speed without sounding any warning of its approach, an acquittal of the latter of negligence is an acquittal of the company.</p>

<p>Landlord and Tenant—Continuance of Tenancy upon Expiration of Lease—Construction of Oral Agreement—Time of Payment of Bent.—An oral agreement made between the parties to a written lease just prior to its expiration providing that the lessee might remain a tenant of the premises “from month to month at the same rental” as stipulated in the lease, contemplates that the rental shall be continued to be paid in the same manner as provided in the lease.</p> <p>Id.—Bemoval from Demised Premises—Unfitness for Habitation— Notice to Bepair.—A tenant is not warranted in removing from demised premises under the provisions of sections 1941 and 1942 of the Civil Code, where no definite notice to repair is given.</p>

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

<p>Practice—Time op Trial—Insufficient Notice—Presence in Court —Refusal of Continuance—Discretion not Abused.—It is not an abuse of discretion to refuse a motion made by the defendant for a continuance of the trial of an action, based upon the fact that he had not received a full'five days’ notice of the time fixed for the trial, where he' had filed his answer, was present in court when the case was called for trial, and filed no affidavit setting forth the reasons why he was unable to proceed, or why his witnesses were not present, or who they were, or what they would testify to if present.</p> <p>Id.—Notice of Trial—Construction of Section 594, Code of Civil Procedure.—The provision of section 594 of the Code of Civil Procedure, requiring as a condition to proceeding with a trial proof that the adverse party has had five days’ notice of such trial, has reference only to proceedings taken against a party in his absence, and has no application to cases in which both parties are represented and present when the case is called for trial.</p>

<p>Negligence—Electric Bailway Crossing—Caution in Approaching. The rule requiring a person upon approaching a railroad track with intent to cross it to exercise his faculties in order to ascertain whether a train is approaching, is applicable to electric railroads operated under conditions similar to the operation of steam railroads.</p> <p>Id.—Death of Automobile Driver—Collision With Electric Bail-way-car at Crossing—Ability to See Approaching Car—Finding.—In an action for damages for the death of an automobile driver from a collision with a rapidly moving electric railway-ear at a crossing, where the question presented to the jury was whether or not a person traveling, as was the deceased, and using reasonable care in observing, would have seen the approaching car, notwithstanding the obstruction of trees and brush along the highway, and notwithstanding the further obstruction made by poles erected at intervals between the railway tracks and carrying the power wires, the conclusion of the jury must be accepted on appeal.</p> <p>Id.—Approaching Bailroad Crossing—Failure to Ese' Faculties— —Inference from Physical Facts—Contributory Negligence.— Where the physical facts shown by undisputed evidence raise the inevitable inference that the person approaching a railroad crossing did not look or listen, or that having looked and listened, he endeavored to cross immediately in front of a rapidly approaching train, which was plainly open to view, he was, as matter of law, guilty of contributory negligence.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Willis I. Morrison, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Lewis W. Andrews, A. V. Andrews, Thos. O. Toland, Andrews, Toland and Andrews, W. H. Bowers and Cedric E. Johnson, for Appellant.</p>

<p>Negligence—Malpractice in Setting op Fractured Arm—Evidence —Proper Setting—Expert Testimony.—In an action against a physician and surgeon for damages for alleged malpractice in the setting of a fractured arm, the plaintiff is not prejudiced by the sustaining of an objection to a question asked an expert witness, who caused to be made certain X-ray plates of the bones some two months after the fracture, as to whether a fracture set in the manner shown by the plates was a proper setting, where the witness later in his testimony made the statement that if the fracture had been properly set in the first place, there would have been no angulation at that time, and also testified fully as to how the operation should have been performed.</p> <p>Id.—Evidence—Admission Subject to Motion to Strike Out—Absence op Motion—Appeal.—Where evidence is admitted subject to a motion to be thereafter made to strike it out if certain proof is not supplied, and no such motion is made, the adverse party cannot be heard on appeal to say that the ruling of the court was erroneous.</p> <p>Id.—Proper Treatment op Arm—Trained Nurse.—A trained nurse, who was superintendent of the operating-room of a large hospital, and who witnessed the performance of the operation on the plaintiff by the defendant, is properly permitted to testify, that from her experience, the treatment was proper.</p>

<p>Corporation—Promissory Note Signed by President and Secretary —Sufficiency of Authorization.—A promissory note of a corporation signed by its president and secretary requires no ratification by the directors or stockholders, where the same was so executed in strict conformity to a resolution of the board of directors authorizing the corporation to borrow from a bank an amount of money not to exceed at any one time a certain sum, and empowering the president or vice-president, together with the secretary or treasurer, to execute its promissory note or notes therefor to such bank for all such sums so borrowed upon such terms in respect to amount or rate of interest or otherwise as might be agreed upon.</p> <p>Id.—Indorser and Guarantor — Sufficiency of Consideration— —Ultra Vires Act—Defenses not Available.—An indorser and guarantor of the payment of such note cannot be heard to say that it was executed without consideration, or that it was ultra vires, where its genuineness was admitted by the corporation and its validity recognized by numerous payments made thereon and an acquiescence of several years.</p> <p>Id.—Agreement Between Corporation and Creditors—Condition— Guarantor not Released.—An indorser and guarantor of the payment of such a note is not released by a subsequent agreement made between the corporation and its creditors relating to a settlement of the debts of the corporation, where the agreement expressly provided that it should be void, unless signed by all creditors, and it in fact was not so signed.</p>

<p>Civil Service Commission—Power to Employ Private Counsel—San Francisco Charter.—The civil service commission of the city and county of San Francisco has no power, express or implied, to employ private legal counsel at the expense of the city and county to defend the commission in legal proceedings, when the city attorney is ready and willing to perform such services, as such officer, by virtue of article V, chapter 2, section 2 of the. charter of said city and county, is alone authorized to conduct the legal business of the municipality.</p>

<p>Irrigation District—Levying of Assessment—Manner and Dorm.— Under the provisions of the act of 1897 (Stats. 1897, p. 254), authorizing the organization and government of irrigation districts, it is not necessary that the levying of an assessment by the board . of directors for the purposes of the district shall be by or in the form of a resolution.</p> <p>Id.—Assessment-roll and Delinquent List—Certification not Essential.—Under the provisions of such act, it is not necessary that the assessment-roll and delinquent list be certified by any person or officer of the irrigation district.</p> <p>Id.—Description of Property Assessed — Sufficiency of.—Under such act, assessed property described as “Modesto BPk 123, lots 1 to 5 inclusive,” in the assessment-book under the heading “Description of Property,” is sufficient.</p> <p>Id.—Sufficiency of Designation of Land.—Where the designation of the land in the assessment-book is such as to afford the owner the means whereby the land may readily be identified, or does not mislead .or is not calculated to mislead him, it is sufficient.</p> <p>Id.—Publication of Delinquent Notice—Evidence—Sufficiency of. The prima facie showing made through proof of the collector’s deed that notice of delinquency was duly published is not overcome by testimony that the numbers of a certain newspaper had been examined and that the notice was found in but one issue, where it is not shown that the notice was published in such newspaper.</p> <p>Id.—Date of Certificate of Sale.—Under the provision of such act requiring that the collector must make out in duplicate a certificate of sale of property sold for delinquent assessment “dated on the day of sale,” a certificate is not void because dated on a day subsequent to the sale, where it is recited therein that the property may be redeemed within twelve months from the date of sale, which date of sale is stated in the recital.</p>

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

<p>Negligence—Pall in Making Exit from Opera House—Dangerous and Unsafe Passageway—Liability of Lessees.—In an action against the owners of an opera house and the lessees thereof to recover damages for personal injuries sustained by a spectator at an entertainment held therein, in passing out through a side door, which had been opened during the performance by the manager and agent of the lessees, at the request of spectators, for ventilating purposes, the lessees are liable in damages for such injuries, where it is shown that the door was not used or intended to be used as an exit or entrance, and that it was left open, unguarded, and unlighted at the close of the entertainment and with no step to aid a person in reaching the sidewalk three feet below.</p> <p>Id.—Nonliability of Owners.—The owners of the opera house are not liable in damages for such injuries, where it is shown that such door was not intended to be used and never was used for the convenience of patrons, but was intended for the use of and to be used only by lessees to take in and out stage properties and for the purpose of occasionally sweeping dirt through, or to air the house.</p> <p>Id.—Nuisance Created by Lessees—Lessor not Liable.—Where property is demised, and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happens during such possession, the owner, is not liable.</p>

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

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District to compel the Superior Court to hear and determine an application for counsel fees, court costs, and alimony pendente lite in an action for divorce.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Workmen’s Compensation Act — Death op Employee op Teaming Company—Hiring Out op Team and Employee to Third Party— Liability op Employer.—Under the terms of the Workmen’s Compensation, Insurance and Safety Act, a person engaged in the business of contract teaming and hauling is liable to the dependent parents of an employee for his accidental death while engaged in hauling lumber for a lumber company, where, he, in pursuance of a request made to his employer by the lumber company for a team and driver, was directed by his employer to perform such work.</p> <p>Id.—Meaning of Terms “Employer” and “Employee.”—The Workmen’s Compensation, Insurance and Safety Act, in seetibns 13 and 14 thereof, furnishes its own definition of the terms “employer” and “employee.” The former term includes every person who has any person in service under any contract of hire, express or implied, and the latter term includes every person thus in the service of such employer.</p> <p>Id.—Compensation to Dependents of Killed Employees—Constitutionality of Act.—The provisions of the Workmen’s Compensation Act authorizing the payment of compensation to dependents of employees whose death has resulted from injuries received in the course of their employment, are constitutional.</p>

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

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

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Third Appellate District to secure an annulment of an order dismissing a justice’s court appeal.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Divorce—Custody of Children—Appeal—Stay of Proceedings.—In an action for divorce an order included in the interlocutory decree awarding the father the custody of the minor children of the parties is stayed by the taking of an appeal from such decree by the wife, and the trial court has no jurisdiction pending the appeal to order that such children be taken from the possession of their mother and given to their father.</p> <p>Id.—Effect of Appeal—Removal of Jurisdiction.—The effect of the perfecting of an appeal is to stay all further proceedings upon the judgment or order appealed from or matters embraced therein in the court below, and to remove the subject matter of the adjudication from the jurisdiction of such court.</p>

<p>Workmen’s Compensation Act—Death op Errand Boy in Elevator Accident—Disregard op Instructions—Annulment op Award.— An award oí compensation made by the Industrial Accident Commission for the death of an errand boy, who met his death while endeavoring to ascend to the floor of the building upon which his employer had its place of business, by means of -a freight elevator operated by himself, is beyond the jurisdiction of the commission, where the undisputed evidenco shows that the deceased had been expressly warned not to ride in, or attempt to operate, the freight elevators in the building under penalty of discharge, and that notices were posted at, or near, the entrance of such elevators of similar import, and there is no evidence that the alleged disregard of such instructions and warnings on the part of employees was ever brought to the notice of their employer, or of any negligence from which such knowledge would be chargeable. ■</p>

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

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

<p>Justice’s Court Appeal—Amendment op Complaint—Lack op Jurisdiction.—The superior court is without jurisdiction upon an appeal taken to it from a judgment rendered in an action in a justice’s court upon a contract to recover a sum of money less than three hundred dollars, to permit the complaint to be amended so as to state a cause of action for a sum in excess of three hundred dollars.</p> <p>Id.—Extent op. Jurisdiction op Superior Court.—Where jurisdiction is derived through an appeal from a judgment rendered in the justice’s court, the superior court cannot, by permitting an amendment of the complaint, acquire jurisdiction in excess of that of the justice’s court from which the appeal was taken.</p> <p>Id.—Appeal prom Judgment op Superior Court—Lack op Jurisdiction op District Court op Appeal—Dismissal.—A judgment rendered on a justice’s court appeal is not within the appellate jurisdiction of the district court of appeal, and an appeal taken therefrom must be dismissed.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and John T. Nourse, Deputy Attorney-General, for Appellants.</p>

<p>Bailroad Corporation—Failure to Fence Track—Killing or Domestic Animal—Bight of Action-Construction of Code.—The provisions of section 485 of the Civil Code, as that section existed prior to the amendment of 1915, giving a right of action against a railroad company for the killing or maiming of a domestic animal upon its line of road which passes through or along the property of the owner thereof, in case of the company’s failure to fence the track, are not intended to be for the benefit of the owners of stock running at large, but the right of action there given exists only in favor of one having some interest in land adjoining the right of way of the railroad.</p> <p>Id.—Action by Lessee—Interest in Land—Failure of Proof.—In an action against a railroad corporation for damages on account of the loss of certain horses of the plaintiff-which were killed by a collision with one of the defendant’s trains by reason of the negligence of the defendant in permitting the gate in its fence inclosing its right of way to be left open and the animals to stray thereon from adjacent land, the right of the plaintiff in or to the land is not established by proof that she leased the land from a third party, without any further proof that such party owned the land, or any interest therein, or that he was in possession of it, or that the plaintiff obtained possession through him.</p> <p>Id.—Closing of Gates—Duty of Bailroad Corporations—Erroneous Instruction.—An instruction declaring it to be the duty of a railroad corporation to keep gates in fences along its tracks closed on all proper occasions to prevent stock from adjoining lands from passing upon its right of way, is erroneous, in that it imposes upon such a corporation the absolute duty of keeping the gates closed, whereas in fact its only duty is to use reasonable care to keep them closed.</p>

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

<p>Criminal Daw—Appeal—Failure to Appear—Ajttrmance oe Judgment.—Where on an appeal taken in a criminal case the appellant’s counsel fails to appear at the time set for oral argument, it is proper to move for an afSrmance of the judgment under the provisions of section 1253 of the Penal Code.</p>

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

APPLICATION originally made in the District Court of Appeal for the First District for a Writ of Review to set aside an order striking from a final judgment an order for an injunction. The facts are stated in the opinion of the court.

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

<p>Street Law—Second Improvement—Effect of Filing of Objections —Santa Rosa Charter.—Under the provisions of the charter of the city of Santa Rosa relating to the public streets thereof and their improvement (Stats. 1905, pp. 891 to 898, inclusive), where a street of that municipality, or any part thereof, has once been improved, and after such improvement has been made, proceedings are taken by the governing body of the municipality to again improve the street, timely written objections filed by the owners of the prescribed amount of the frontage of the property fronting on the line of the proposed improvement has the effect of barring further proceedings in relation to the proposed improvement for the period of six months.</p>

<p>APPLICATION for a Writ of Supersedeas upon appeal from a judgment of condemnation of land.</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>Execution—Greater Amount Than Judgment—Quashing of Writ.— Where an execution is issued for a greater amount than that for which the judgment was rendered, it may be quashed on motion.</p> <p>Id.—Jurisdiction—Different Judges.—The jurisdiction of the court to quash the writ is not affected by the fact that the judge who presided at the hearing of the motion to quash was a different judge from the one who presided when the writ was ordered to issue.</p>

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

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

<p>Criminal Law—Bobbery—Evidence—Use of Stolen Automobile— Prejudicial Error.—Where, in a prosecution for robbery, it is shown that the persons engaged in the commission of the crime drove to the scene thereof in a Ford automobile about 7 o’clock in the evening, and the evidence is barely, if at all, sufficient to justify the verdict that the defendant participated in the robbery, it is prejudicial error to permit the owner of a Ford automobile to testify, over objection made by the defendant, that he left his machine at a corner about 4 o’clock in the afternoon, that it was gone when he returned there to get it about 8 o’clock, and that he found it at another place some hours later, in the absence of evidence identifying such machine as the automobile used by the perpetrators of the crime, except that both were Ford machines and the isinglass was out of the back thereof.</p> <p>Id.—Alibi—Evidence—Modification of Testimony—Befusal to Permit—Prejudicial Error.—In such a prosecution it is prejudicial error to refuse to permit the defendant to recall a witness for the prosecution in surrebuttal for the purpose of permitting the witness to modify her testimony as to the presence of the defendant at a certain place at the time of the commission of the alleged crime.</p>

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

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

<p>Landlord and Tenant—Recovery of Possession—Withholding of Premises—Sufficiency of Evidence.—In an action for rent and for restitution of premises, a finding that the defendant was withholding the possession of the premises at the time of the commencement of the action is sufficiently supported by evidence that he still had a key thereto, that he had not paid the rent, and that his goods were still contained therein.</p> <p>Id.—Denial of Landlord’s Title—Notice to Quit.—If a tenant denies his landlord’s title, the denial makes him a trespasser, and he is not entitled to notice to quit before the commencement of an action by the landlord to recover possession of the premises.</p>

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

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

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