Volume 32 — California Appellate Reports

<p>Pledge—Surrender for Sale on Execution—Loss of Lien.—Where certain promissory notes of third parties are deposited with a bank as-collateral security for the payment of a note of the pledgor to the bank, and the bank thereafter makes a surrender of the pledged notes for the purpose of having them sold on execution to satisfy a judgment obtained against the pledgor on his note, the lien of the pledgee on such notes is thereby lost.</p> <p>Ib.—Status of Purchaser.—The purchaser of such notes at the execution sale acquires only the right, title, and interest of the pledgor therein, and takes the same subject to all equities which might have been pleaded in an action thereon brought by such pledgor. .</p> <p>Id.—Sale of Notes—Violation of Duty by Pledgee—Purchaser at Sale not Injured.—The purchaser at such a sale cannot complain that the pledgee had no right to sell the notes or do otherwise than collect them at their maturity and apply the proceeds upon the liability of the pledgor, as the provision of section 3006 of the Civil Code "prohibiting sales by pledgee is designed for the benefit of the pledgor, who may waive it.</p>

<p>Agency — Authority to Sell Beal Property — Execution op Contract op Sale Unauthorized.—A writing authorizing a real estate broker to sell real property at the price and on the terms mentioned in the instrument, and to receive and receipt for any deposit made on the purchase price thereof, does not authorize the broker to enter into a contract for the sale of the property on behalf of the owner, • but only extends to the finding of a purchaser.</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>Services—Nursing and Caring for Dipsomaniac—Implied Contract. In an action to recover for personal services in taking care and personal charge of a person who had become so addicted to the use of intoxicating liquors that he had practically developed into a dipsomaniac, it is not necessary that the plaintiff should prove an express contract to pay her compensation for such services, where an express contract to furnish board and lodging is alleged and proven, in addition to proof of the performance and acceptance of the services in question.</p> <p>Id.—Performance of Extra Services—Recovery of Compensation— Express Promise to Pay—Proof.—Where extra services are of the same kind as those which the original agreement required the servant to render, the latter, to entitle him to recover for such extra services, must show an express contract or agreement or promise on the part of the master to pay him extra compensation therefor; but where the extra or special services are dissimilar to, or wholly different in kind from, the services to be performed under the original contract of employment, then proof of the fact of the performance of such extra services, together with proof of the acceptance thereof by the master, will raise an implied promise on the part of the latter to pay the reasonable value of such extra or special services.</p> <p>Id.—Agreement to Furnish Board and Lodging—Nursing not Included.—The mere agreement to furnish board and lodging does not necessarily or by logic of the fact include nursing, and unless the contract to furnish the former expressly includes the latter, or is expressed in language from which no other just conclusion may be drawn, a promise to pay extra compensation for the services of nursing will be implied.</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>Services—Order Granting New Trial—Conflict of Evidence—Appeal.—In an action for services in remodeling and repairing a building, an order granting the defendants a new trial must be affirmed on appeal, where there was substantial evidence to support the defendants’ contention that there was a specific contract to do all the work for the sum claimed by them, notwithstanding the evidence of the plaintiffs to the contrary.</p> <p>Id.—Order Granting New Trial—Discretion.—The trial judge in granting a motion for a new trial has a very broad discretion, and the order will be upheld on appeal if it may be supported on any of the assigned grounds.</p> <p>Id.—Affirmance of Order—Conflict of Evidence—Rule Applicable to Different Judge.—An order granting a new trial will not be disturbed where there was a conflict of evidence on material issues, unless it can be said a verdict in favor of the moving party would not have found sufficient legal support in such evidence; and the rule is the same whether the motion is heard by the judge who tried the ease, or by some other judge whose only knowledge of the facts is obtained from the record.</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 — Extension of Time fob pronouncing Judgment — When Dependant Entitled to New Tbial.—Under sections 1191 and 1202 of the Penal Code, a defendant convicted of a criminal offense is entitled to a new trial where by reason of various extensions of time for the pronouncing of judgment the same was continued beyond the period of ninety-five days after the return of the verdict.</p>

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

<p>Street Improvement—Contract for Work—Execution by Holder of Contract to Purchase — Lien Invalid Against Owner.— The holder of a contract of purchase of a lot of land cannot impress the land with a lien for street improvements which shall be binding upon the owner thereof, in the absence of proof that such owner has by his conduct so far concurred in such improvement as to be estopped to deny the validity of the lien.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Charles 0. Busieb, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Criminal Law—Misdemeanor—Amended Information — Presumption on Appeal.—Upon an appeal from a judgment and order denying a new trial in a prosecution under the Wyllie Local Option Act, where the punishment imposed made the offense a misdemeanor, and the record showed that after one information had been filed without the defendant having been brought to trial within sixty days, such information was dismissed for the purpose of. filing an amended information, and thereafter another information was filed setting forth in three counts three distinct violations of the act, whereas the first information alleged but two, it will be presumed that the second information was an amended information, in the absence of any affirmative showing that the second information was based upon a second preliminary examination.</p>

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

<p>Proceeding Against Joint Debtor—Evidence—Joint Obligation.—In a proceeding under section 989 of the Code of Civil Procedure, which provides that when a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, those who were not originally served with summons and did not appear in the action may be summoned to show cause why they should not be bound by the judgment, evidence that the defendant thus summoned was associated with the defendant against whom judgment was obtained in the ownership of certain placer claims, and that the latter bought supplies from the plaintiffs for the purpose of developing such claims, and that the former never at any time repudiated liability for such supplies, but on the other hand endeavored to raise money to pay for the same, sufficiently shows a joint indebtedness, in. view of the presumption created by section 1431 of the Civil Code that an obligation imposed upon several persons is joint.</p> <p>Id.—Agency—Undisclosed Principal.—The fact that a principal's connection in a transaction is not disclosed will not relieve him from obligation thereon, where such obligation was created for and on behalf of himself and the person acting as his agent.</p> <p>Id.—Action for Goods Sold—Joint Indebtedness — Evidence — Declarations of Defendant to Associate—Previous Proof of Agency not Esquired.—In an action for goods sold, it is not error to permit one jointly liable with the defendant to testify as to conversations had with the defendant concerning the transaction without first showing the existence between them of the relationship of principal and agent.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. H. T. Dewhirst, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank T. Bates, Walter J. Hartzell, Raymond E. Hodge, and Charles L. Allison, for Appellant.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. E. P. Unangst, 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>Specific Performance—Contract for Interest in Lease—Subsequent Contract Giving Option to Purchase—Intent to Cancel First Contract—Parol Evidence Inadmissible.—In an action to enforce a written contract for the assignment of an undivided one-half interest in a lease of certain real property, it is reversible error to permit the defendant, over objection, to introduce parol evidence that a written- contract subsequently executed by the same parties, wherein the defendant was given an option to purchase such interest under certain conditions, was intended to cancel and extinguish the first contract, where the second contract made no reference to the first contract in any way and did not contain any terms inconsistent therewith, or deal with all the subjects embraced in the first contract; the effect of cancellation, under such circumstances, in view of the fact that the plaintiff acquired his interest in the lease under the first contract, would render the second contract inoperative for want of a subject matter.</p> <p>Id.—Parol Evidence—-When Admissible.—In order to let in evidence of a collateral agreement between the parties, such agreement must be consistent with the terms of the writing; and the evidence must not tend to vary or contradict the terms of the written instrument or to defeat its operation.</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>Negligence — Pall into Unguarded Elevator Shaft — Liability of Defendant—Authority of Representative—Nonsuit Erroneous. In an action for damages for personal injuries sustained by the employee of a company engaged in the erection of steel beams or girders for a railroad track entering a warehouse building being constructed by the defendant, it is error to grant a motion for a nonsuit at the close of the plaintiff’s case, where it is shown by the evidence that the plaintiff was injured by falling into an unguarded elevator shaft while on Ms way to the office in the adjacent building, also belonging to the defendant, for the purpose of telephoning for the delivery of the beams, and that permission to use such telephone was given to plaintiff’s employer by the person who approved the agreement for the placing of the beams for the defendant, and who directed the main work on the building.</p>

<p>Criminal Law—Sale of Automobile—Evidence—Lawful Possession —Unsupported Conviction of Grand Larceny.—Under an information charging a defendant in one count with the crime of embezzlement in fraudulently converting to his own use an automobile, and in a second count with the crime of grand larceny in feloniously stealing and carrying away the automobile, a verdict finding him guilty of grand larceny is without support, where the evidence discloses that the defendant had lawful possession of the machine at the time that he unlawfully disposed of the same.</p> <p>Id.—Essentials of Embezzlement.—The essential gist of the crime of embezzlement is in the breach of trust reposed in the agent, employee, or bailee, by his principal, employer, or bailor, and, therefore, the charge of embezzlement always presupposes the lawful acquisition by the agent, employee, or bailee of the possession 0of the property which has been misappropriated or wrongfully converted to the use of such agent, employee, or bailee.</p> <p>Id. — “Grand Larceny” and “Embezzlement” Distinguished. — The essential distinction between the crime of “embezzlement” and that of “grand larceny” is that in embezzlement the original taking of the property is lawful, while in grand larceny the original taking involves a trespass or is accompanied by a felonious intent to deprive the owner of the property so taken.</p>

<p>Public Officers—County Clerk of Alameda County—Eight to Fees in Naturalization Proceedings.—The county clerk of the county of Alameda is not entitled, as a matter of law, to retain for his own use and benefit one-half of the fees collected by him in naturalization proceedings, under the act of Congress which provides that the clerk of any court collecting such fees is authorized to retain one-half thereof, and to pay the other one-half to the federal bureau of immigration and naturalization.</p> <p>Id.—Disposition of Fees “Allowed by Law”—Requirements of Statutes.—The statute law of this state prescribes the duties of county clerks, provides for their compensation, and directs such officials to pay into the county treasury all fees “allowed by law”; and fees received in naturalization proceedings come within such term.</p> <p>Id.—Federal and State Statutes not in Conflict.—The act of Congress does not purport to deal or interfere with the relation of the state and its officers, and the disposition of fees collected under such act after an accounting to the federal government for its proportion thereof, may very properly he covered and controlled by the law of the state without necessarily creating any antagonism between the state and its officers, or conflict between the federal and state statutes.</p> <p>Id.—Payment of Naturalization Fees into Treasury—Code Amendment Concerning Clerk of Certain Counties—Clerks of Other Counties not Entitled to Retain.—The circumstance that section 4233 of the Political Code, which fixes the compensation of county officers of counties of the fourth class, at one time declared that the county clerk of counties of that class must pay into the county treasury all fees received by him in his official capacity from whatever source derived, and that such section was amended in 1911 to read “including fees allowed by the government of the United States of America in all matters pertaining to the naturalization of aliens,” was not an expression of the legislative will that the county clerk of every other county in the state might retain fees collected in naturalization proceedings for his own personal use and benefit.</p>

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

<p>Eminent Domain—Surveyed School Lands Within Federal Reservation.—School lands situated within the boundaries of a federal forest reservation, which had been surveyed before they were included in the reservation, may be taken in eminent domain proceedings against the state.</p> <p>Id.—Reservation op State Lands prom Sale—Right op Condemnation not Appected.—The statutes of this state do not say that state lands reserved from sale, or state lands not ofEered for sale, shall not be subject to the right of eminent domain. They declare that all the lands of the state shall be subject to this right, saving such lands alone as are devoted to a public use.</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>Justice’s Court Appeal—Undertaking—Incorrect Recital of Judgment.—In an undertaking on appeal from a justice’s court, an incorrect recital of the date of the rendition of the judgment does nut invalidate the undertaking, where the notice of appeal correctly states the date thereof.</p> <p>Id.—Justification of Sureties—Time.—Where exceptions are taken to the sufficiency of the sureties on an undertaking given on a justice’s court appeal, and other sureties justify in place of the original sureties, and such justification takes place within five days after the filing of such exceptions, the substitution of new sureties and their justification is within due time, even though it be more than five days after the filing of the notice of appeal.</p> <p>Id. — Rewriting of Undertaking — Execution by One of Original Sureties With New Surety—Same Undertaking.—The fact that the undertaking was rewritten and signed a second time by one of the sureties on the original undertaking, together with the surety who was substituted for the other surety on the original undertaking, did not make the document a new and different undertaking within the meaning of the terms of section 978a of the Code of Civil Procedure, or deprive the superior court of jurisdiction of the appeal.</p> <p>Id.—Identity of Surety—Immaterial Variance.—The fact that in the second undertaking in the body thereof the surety was named as “J. J. Hutchinson,” whereas his signature and affidavit were in the name of “John J. Hutchinson,” did not constitute a defect impairing the validity of the instrument.</p> <p>Id.—Insufficiency of Undertaking to Stay Execution—Sufficiency as Cost Bond—Jurisdiction.—Where an undertaking is sufficient to constitute a bond for costs on appeal, jurisdiction of the appeal is sustained thereby, even though the undertaking is not sufficient for the purposes of a stay of execution.</p> <p>Id.—Waiver oe Justification op Sureties.—Where a party excepting to the sufficiency of sureties fails to appear at the time and place designated in the notice of justification after service of such notice upon him, further notice is waived.</p>

<p>Mortgage — Sale op Property Under Power — Eight op Action on Note por Deficiency.—A mortgagee of personal property is not prevented by the provisions of section 726 of the Code of Civil Procedure, which declares that there can be but one action for the recovery of any debt secured by a mortgage, from bringing and maintaining a personal action to recover the balance due on the notes whose payment the mortgage secured, by having made a sale of the property under the authorization of sale contained in the mortgage and crediting the proceeds of the sale to the mortgagor, as under such circumstances the note was not “secured” by mortgage at the time of the commencement of the action.</p> <p>Id. — Action on Notes — Purchase Price op Engine — Written Contract—Inadmissibility op Oral Evidence.—In an action to recover an alleged balance due upon certain promissory notes executed as part of the purchase price of a traction engine, evidence of oral representations made by the plaintiff before the execution, of the notes concerning the capacity of the engine are properly excluded, where the order blank for the engine, which the defendants signed, expressly recited an acknowledgment by the purchasers that no promises, representations, or agreements had been made to or with them that were not contained in the order, and that salesmen, mechanics, and experts were not authorized to bind the vendor by any act, conduct, or statement.</p> <p>Id.—Lack of Capacity of Engine—Proof Inadmissible.—In such an action evidence offered by the defendants that the engine would not develop a certain horse-po-wer is properly excluded, where the only reference in the contract to horse-power was in the part thereof reciting the ordering and shipment to the defendants of a “one 30 horse-power simple engine traction, wood burning, and fixtures,” and their answer failed to allege any rescission or offer to rescind the contract for breach of warranty.</p> <p>Id.—Sale of Mortgaged Property—Conflict of Evidence—Condition Precedent to Recovery on Notes—Erroneous Refusal of Instruction.—In an action to recover an alleged balance due on certain promissory notes, whose payment was secured by a mortgage on personal property, after an alleged sale of the property under the power of sale contained in the mortgage and application of the proceeds of the sale on the notes, it is reversible error to refuse to instruct the jury at the request of the defendants that if they believed from the evidence that the plaintiff elected to sell the property at public auction at the time and place mentioned in the notices of sale posted by it, but did not so make the sale, their verdict should be for the defendants, where the evidence was in direct conflict as to whether there was any sale had at the time and place noticed.</p>

<p>Justice’s Court Appeal — Questions of Law and Fact — Want of Jurisdiction Appearing on Face of Record—Seasonable Objection—Dismissal.—Where an appeal from a justice’s court is upon questions of law and fact, and the defendant seasonably challenges the jurisdiction of the court to try the action upon its merits, by reason of the want of jurisdiction of the justice’s court over the subject matter of the action appearing upon the face of the record, such defendant is entitled to an order dismissing the action for want of jurisdiction to try it upon its merits.</p> <p>Id.—Loss of Original Complaint—Substitution of Copt—Trial in Superior Court Without Objection—Valid Judgment.—Where an action is tried in a justice’s court without the original complaint or a copy thereof being on file, and an appeal is taken from the judgment rendered therein on both questions of law and fact, and the case is tried in the superior court on its merits, without objection other than to a motion made to substitute a copy of the complaint for the lost original, the judgment will not be annulled on certiorari for want of jurisdiction of the superior court.</p> <p>Id.—Disappearance of Original Complaint—Trial Without Copy— Irregularity.—A justice’s court does not lose jurisdiction over the subject matter of an action by the loss of the original complaint from the files, and a trial had without it or the substitution of a copy is but a mere irregularity.</p>

<p>Criminal Law—Information—Charge of Different Offenses—Election.—Under section 954 of the Penal Code, as amended in 1915, an information may charge different offenses of the same class, and the prosecution is not required to make an election upon the admission of evidence in support of the different offenses.</p> <p>Id.—Lewd Conduct With Child—Evidence—Gifts to Prosecutrix.— Upon a trial for lewd and lascivious conduct with a child of ten years, there is no error in refusing to strike out the testimony of the girl that she could not remember whether the defendant gave her candy or gum.</p> <p>Id.— Instruction — Consideration of Testimony of Defendant.— Where in the prosecution for such an offense the jury is instructed that the interest of the defendant in the result of the action does not deprive him of the benefit of his own testimony, and that his testimony is entitled to full and fair consideration the same as that of any other witness, he is not prejudiced by the modification of an instruction proposed by him in striking therefrom the following: “The defendant has offered himself as a witness and has given testimony in this ease and the jury are instructed that he is competent to testify as a witness and in considering his testimony you should be governed by the same rules that control you in weighing the testimony of other witnesses who have given testimony before you in this trial.”</p>

<p>Conversion—Sale of Automobile Under Execution—Ownership of Machine—Support of Finding.—In an action brought by a third-party claimant against a sheriff to recover as damages the value of an automobile seized and sold under a writ of execution issued in an action brought against the plaintiff’s vendor, a finding that the vendor, and not his wife, was the owner of the property is suffi.-. ciently supported by evidence that such vendor purchased the machine in Ms own name under the designation “trustee,” and that ' he had at all times the possession and control thereof, and that no change in the possession was ever had until its seizure under execution.</p>

<p>Action to Enforce Transfer of Lease—Parol Agency—Repudiation of Trust—Want of Consideration—Action not Maintainable. Where a party employs another person by parol to secure a lease of certain real property for him, with the understanding that if the lease cannot be procured to be made directly to him, the agent shall, if possible, secure it in his own name and then transfer it to his principal, and the agent secures the lease to be made to himself and denies the trust, the principal cannot compel the agent to transfer the lease to him, where he has parted with no consideration.</p> <p>Id.—Parol Agency — Trust — When not Enforceable. — An agency attempted to be created by parol, in violation of the provisions of the statute of frauds, is not sufficient to impose a trust in a case where the principal who seeks its enforcement has parted with no consideration.</p>

<p>Sale of Fumping Plant — Action fob Damages — Breach of Warranty—Sufficiency of Complaint.—In an action to recover a sum of money as damages alleged to have been sustained through the failure of the defendant to furnish an engine and pump and erect the same as contracted for, the complaint states facts sufficient to constitute a cause of action for special damages, where it is alleged that the defendant had knowledge that the plaintiff intended to install a pumping plant, that the defendant made a written proposal, which the plaintiff accepted, to furnish and install a proper plant, and that the plant so furnished was defective both as to design and method and unskillfully installed, notwithstanding it was also alleged that title to the plant was to remain in the defendant until full payment had been made therefor.</p> <p>Id.—Breach op Warranty—Special Damages—Ownership op Article Immaterial.—While it is true that where title is reserved in the seller of an article until full payment is made therefor, a breach of warranty by the seller will not entitle .the buyer to recover general damages, he may recover any special damages which may have been caused him through breach of the warranty of his vendor.</p> <p>Id. — Warranty op Fitness op Manufactured Article — When Implied.—Under section 1770 of the Civil Code, which provides that one who manufactures an article under an order for a particular purpose warrants by the sale .that it is reasonably fit for that purpose, a warranty of fitness will be implied, where the vendor contracts with the vendee with full knowledge as to the particular purpose for which the article is to be used.</p> <p>Id.—Retention of Property—Opportunity to Remedy Defects—Warranty not Waived.—The buyer’s retention and use of the article beyond the stipulated time will not operate as a waiver of the benefits of the warranty when it was at the instance of the seller or his agent, or when it was for the purpose of giving the seller or Ms agent an opportunity to remedy defects.</p>

<p>Justice’s Court Appeal—Void Undertaking—Erroneous Recitals as to Courts.—An undertaking on appeal from a judgment rendered in the justice’s court of a certain township of a certain county, which refers to the judgment as one rendered by the justice’s court of another township of a different county, and to the appeal as being taken to the superior court of the latter county, is wholly insufficient to identify the appeal, and the superior court is without jurisdiction to permit sueh undertaking to be amended by substituting therein the proper township and county.</p> <p>Id.—Undertaking on Appeal—Recitals—Identification of Appeal.— The recitals in an undertaking on appeal must identify the appeal which it is intended to support, and if they fail to do so, the error is incurable.</p>

<p>Municipal Corporations—Garnishment of Monet Owing by City— Payment from General Funds.—The city clerk and auditor of a municipal corporation, upon the filing with such officer of a duly authenticated transcript of a judgment obtained against a person who had himself subsequent to such judgment obtained a judgment against a person to whom the municipality was indebted for work in constructing a tunnel, is not justified in refusing to issue his warrant payable from the general funds of the city, upon the ground that the effect of the filing of such transcript was to impound money due from the city to its creditor out of a separate or particular fund, in the absence of any showing that such a fund had been created.</p> <p>Id.—Indebtedness op Municipality—Payment from Specified Pund. Where a municipal corporation by authority of law creates a particular fund with reference to which it contracts, any indebtedness arising upon such contract is only payable therefrom, but where the so-called fund is one created by the city for its own convenience and not by direction of law, the indebtedness is not payable from such specified fund, but is a general liability payable out of the general funds of the city, chargeable perhaps to a specified account.</p>

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

<p>New Trial—Waiver of Written Notice of Order Denying Motion— Motion to Vacate Order.—The statutory provision requiring service of written notice of an order denying a motion for a new trial may be waived by the adverse party, and such a waiver occurs where an application is made to set aside the order on the ground of excusable neglect of counsel in failing to be present at the time fixed for the hearing of the motion.</p> <p>Id.—Bill of Exceptions—Settlement Properly Refused.—Service After E'xpiration of Statutory Time.—Mandamus will not lie to compel the trial judge to settle a bill of exceptions under such circumstances, where the proposed bill was not served on the adverse party within ten days after the application for such relief. and the time was not extended.</p>

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the First Appellate District to annul an award of compensation made by the State Industrial Accident Commission.</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>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—Theft or Automobile—Misconduct of District Attorney.—In a prosecution for grand larceny-based on a theft of an automobile, it is misconduct on the part of the district attorney in his opening statement to state that he will prove that certain parts of the automobile in question had been changed, and that the parts substituted for them had been taken from another automobile which also had been stolen, and during the trial repeatedly to propound questions to witnesses incorporating references to other stolen automobiles; but where the court, upon objection by counsel for the defense, instructs the jury that such reference in the terms employed is improper, the misconduct is not prejudicial to the defendant.</p> <p>Ib.—Argument—Offer to Refer Case to Probation Officer.—In such a case it is misconduct on the part of the district attorney in his closing argument, in reply to the argument of defendant’s counsel referring to the hardship of taking his client from the bosom of his family and sending him to the penitentiary, to offer to refer the case to the probation officer to look into defendant’s past record and see if he is entitled to probation; but where, upon objection of the defense, the district attorney withdrew the statement, and the court instructed the jury to disregard it, it was not prejudicial to the defendant.</p>

<p>Deed op Trust—Sufficiency op Notice op Sale—Injunction.— Where the trustees under a deed of trust, upon default in payment and demand for sale by the beneficiary upon the trustees, gave notice of sale in one parcel, as provided in the deed of trust, but one day before the time for the sale, the debtor procured a temporary injunction restraining the sale and directing its postponement, and thereafter the court made an order that the property be offered for sale in three parcels, and that notice should be published not less than five days prior to the date of sale, and the trustees postponed the sale by proper notice as provided in the deed of trust until the day ordered by the court and gave the notice required by the order, objection to the sale on the ground that the notice was not published for the full period of three weeks, but only for five days under the court’s order, is without merit, where the deed of trust expressly authorized the sale of the premises as a whole or in parcels at the discretion of the trustees, as the original notice of sale was sufficient to give the trustees jurisdiction to make the sale, which jurisdiction the order of the court requiring an offer of the property for sale in parcels might direct but could not destroy.</p> <p>Id.—Payment op Purchase Price.—A sale under a deed of trust is not invalid because the purchaser does not physically deliver to the trustees the amount of his bid or any portion thereof in gold coin, but immediately after the sale borrows from the bank which holds the notes and is the beneficiary under the deed of trust the sum bid, which is credited to the trustees and a deed executed to the purchaser.</p>

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

<p>Vendor and Purchaser—Recovery of Money Paid on Lot—Failure to Complete Building in Workmanlike Manner—Pleading— Defects in Construction—Sufficiency of Complaint.—In an action to recover a sum of money paid on account of the purchase price of a lot, on the ground that the defendant had failed to construct and complete the building which was in course of construction on the lot at the time the money was paid, in a workmanlike manner and in accordance with his agreement, it is not necessary for the complaint to set forth in detail all of the defects in the work of construction, but it is sufficient to call attention to the chief objections thereto.</p> <p>Id.—Recovery of Moneys Expended—Sufficiency of Complaint.— A complaint drawn in conformity with the common count for moneys expended for the use and benefit of another is not subject to special demurrer for failure to allege the expenditures in detail, as the same are obtainable through a demand for a bill of particulars.</p>

<p>Action on Promissory Notes—Purchase Price op Cigar Business— Misrepresentation as to Stock—Cancellation op Notes—Accommodation Makers.—Accommodation makers upon promissory notes given in payment of the purchase price of the stock in trade, business, and goodwill of a wholesale cigar-house are not entitled to have the notes canceled upon the ground that their signatures thereto were procured by fraudulent representations made by the vendors to the vendees as to the condition and quantity of the stock, where such vendees had been in charge and management of the business for nearly a year, and were fully acquainted with both the quantity of the stock on hand and the condition thereof.</p> <p>Id.—Rescission and Restoration—Essentials to Cancellation.— A rescission of the contract of sale and return of the property is a prerequisite condition of maintaining an action to cancel the notes.</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. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Sheriff — Expiration of Term — Delivery of Property Taken in Claim and Delivery Action—Mandamus.—Under the provisions of section 4171 of the Political Code, a sheriff cannot be compelled by writ of mandate after the expiration of his term of office to take into his possession, and deliver to the plaintiff in an action in claim and delivery, certain property which had been taken by him into his possession while he was sheriff, and afterward wrongfully returned by him, while he was sheriff, to t'he defendant in such action.</p> <p>Id.—Service of Unexecuted Process by Successor in Office—Construction of Code—Claim and Delivery Proceedings Included. The word “process” as used in section 4171 of the Political Code, which provides that when any process remains with the sheriff •unexecuted in whole or in part at the expiration of his term of office, the same shall be executed by his successor, includes the proceedings which authorize a sheriff to take property in claim and delivery.</p> <p>Id.—Performance of Official Duties—Change in Incumbency— Policy of Law.—The policy of the law as declared in section 4171 of the Political Code seems to be that the official duties pertaining to the office of sheriff shall, so far as possible, be performed by the actual incumbent of the office, and that the powers of the office shall not continue to be exercised by one whose term has expired.</p>

<p>Eminent Domain—Construction of Storm Drainage Canal—Tendency to Elood Land not Taken—Evidence.—In an action brought by a county to condemn a strip of land through a larger tract owned by the defendant, over which the county proposed to construct a canal for the purpose of carrying flood waters which in times of heavy rains accumulated upon the watershed contiguous to such tract, it is proper to admit evidence tending to show that the construction of such a drainage canal would subject the lands of the defendant not taken to danger from flooding, and thereby materially impair their market value.</p>

<p>Conditional Sale op Automobile—Amount Allowed as Credit on Turned-in Cab—Parol Evidence Inadmissible.—In an action to recover the possession of an automobile, sold under a written contract, by the terms of which the plaintiff was given the right to retake possession of the ear in the event of default in payment, parol evidence is inadmissible of an oral contemporaneous agreement that the defendant was to receive a credit of two hundred dollars more on the old car turned in by Mm than that expressed in the writing, where there was no evidence that the agreement was made with the intention of deceiving and defrauding the defendant, but made in good faith under the belief that such additional sum could be obtained for the old ear on its resale by the plaintiff.</p> <p>Id.—Fraud—Burden of PkooF.—The burden of proving fraud is always upon him who relies upon it, and it cannot be presumed.</p> <p>Id.—Failure to Perform Oral Promise—When Fraudulent.—The failure to perform an oral promise is only fraudulent when made without any intention of performing it.</p>

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

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

<p>APPEAL from an order of the Superior Court of Yolo County denying an application to share in the damages awarded in an action for condemnation of land. W. A. Anderson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Justice’s Court—Setting Aside Default Without Imposing Costs— Error not Jurisdictional.—The setting aside of a default judgment by a justice’s court, without imposing costs as a condition, is an error for which the case should be reversed, but the court is not thereby deprived of jurisdiction to proceed further with the cause.</p> <p>Id.—Belief from Default—Time—Ten Days After Written Notice of Entry.—The time to file an application under section 859 of the Code of Civil Procedure, to be relieved from a judgment entered by default in a justice’s court on the ground that such judgment had been taken by mistake, inadvertence, surprise, and excusable neglect, begins to run from service of written notice of entry of the judgment as required by section 893 of such code, as amended in 1915.</p> <p>Id.—Personal Service of Summons—Notice of Entry of Judgment Bequired.—Service of written notice of entry of judgment is required in eases where personal service of summons has been made, as well as in cases of constructive service.</p> <p>Id.—Vacating Justices' Court Judgments—Code Section Applicable.—Proceedings to vacate judgments of justices’ courts are governed by section 859 of the Code of Civil Procedure, and not by section 473 of such code, as the latter deals with such proceedings in the superior courts.</p>

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

<p>Municipal Corporations — City and County op San Francisco— Scope op Van Ness Map.-—The map of the city and county of San Francisco, made pursuant to the terms of the Van Ness ordinance, is limited by virtue of the express terms of such ordinance to those lands lying west of Larkin Street and southwest of Johnson Street, and cannot be given effect as to the portion which undertakes- to cover lands lying without such boundaries by the extension of street lines thereon beyond the limits prescribed for the official survey.</p> <p>Id.—Quieting Title—PRoop op Destroyed Judgment—Abstract op Title.—Where in an action to quiet title under the McEnerney Act to a lot in the city and county of San Francisco, the plaintiff relied upon a judgment obtained by her predecessor in interest quieting his title to the property against the city, and it was shown that the original record of such suit and judgment was destroyed in the conflagration of 1906, evidence of an abstract of title made by an abstract and title company, purporting to be a correct and complete abstract of all matters appearing of record affecting the title to the property, and also purporting to show the filing of the complaint in such suit and the entry of judgment therein, was properly admitted as secondary evidence of such destroyed record under the provisions of section 1855a of the Code of Civil Procedure, as amended in 1911.</p>

<p>Corporations—Negligence—Personal Injuries—Liability op Stockholders.—The liability of a stockholder of a corporation under the provisions of section 3 of article XII of the constitution, and section 322 of the Civil Code, extends to the payment of damages for personal injuries caused by the negligence of the corporation.</p> <p>Id.—Death op Stockholder—Survival op Liability.—A cause of action against a stockholder of a corporation for damages for personal injuries caused by the negligence of the corporation does not "die with the stockholder, but survives and may be enforced against Chis estate, as the liability is not penal but contractual in its nature.</p> <p>Id.—Holding of Stock by Subsidiary Corporation—Liability of Stockholders not Affected.—Stockholders of a corporation cannot avoid any part of their statutory liability by reason of the fact that a portion of the corporation’s own stock is held through a secondary company.</p>

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

<p>Action fob Services Performed and Money Expended—Exploration of Prospective Oil Territory—Partnership Relation of Defendants—Support of Finding.—In an action against several individual defendants for services performed and money expended in exploring prospective oil territory, a finding that the relation of general partners existed between the defendants is sufficiently established by letters which passed between them indicating that each was to furnish an equal amount of capital.</p> <p>Id.—Action Against Several Defendants—Trial Against Served Defendants—Right of Plaintiff.—Where an action is against two or more defendant's jointly or severally liable, the plaintiff may proceed against such of the defendants as have been served in the same manner as if they were the only defendants.</p> <p>Id.—Evidence—Impeachment of Witness—Exception to Rule.—A party calling a witness is not precluded from proving the truth of any particular fact by any other competent evidence in direct contradiction to what such' witness may have testified; and this not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally* unworthy of belief.</p>

<p>Action Against Married Woman—Parties—Joinder of Husband.— In an action against a wife to recover on her express contract, it is error to enter judgment against her if she is living with her husband, without making the husband a party defendant and causing service to be made upon him.</p> <p>Id.—Judgment Against Wife—Jurisdiction.—Where judgment in such action is rendered by a justice’s court and an appeal taken to the superior court, and the latter court causes the husband to be served, such procedure, even if without the appellate jurisdiction of the superior court, does not render the judgment against the wife void for want of jurisdiction.</p>

<p>Action fob Services—Exchange of Beal Estate—Pleading—Uncertainty as to Time of Performance—Evidence—Lack of Prejudice.—In an action for services performed in bringing about an exchange of real properties, the defendant is not prejudiced by any error in overruling his demurrer to the complaint for alleged uncertainty as to whether the services were performed within the time limited by the contract of employment, where he had the benefit of his own testimony and the contract itself to rebut the testimony of the plaintiff on the subject.</p> <p>Id.—True Date of Exchange Agreement—Parol Evidence Admissible.—In such an action parol evidence is admissible to prove that the agreement of exchange was signed and procured on the day preceding the day written therein.</p> <p>Id.—Contract of Employment—Payment Upon Consummation of Exchange—Construction.—A contract agreeing to pay a sum of money as commissions for services rendered in procuring an exchange of real estate, “upon the consummation of the exchange,” has reference not to the final exchange of deeds, but to the execution and delivery of a binding contract for their exchange.</p> <p>Id.—Exchange Agreement—Time for Examination of Title—Delivery of Properties Free of Encumbrances—Liability for Commissions Unaffected by.—A provision in the exchange agreement allowing thirty days for examination of title, and requiring delivery of the respective properties clear of encumbrances, does not make the liability to pay the commission dependent upon the taking place of the actual exchange of deeds within thirty days from the date of the agreement.</p> <p>Id.—Broker’s Commission-—When Earned.—In case of an agreement for an exchange of properties, when time is given to examine the titles, the giving of such time doe's not affect the agent’s right to his commission, although it might affect the time of its payment. His right to the compensation is fixed by the production of a person able, ready, and willing to purchase upon the conveyance of good title.</p>

<p>Tenants in Common—Sale or Interests—Receipt or Greater Sum by One Tenant—Failure to Advise Other—Valid Contract.— A contract made between a tenant in common and the purchaser of his interest' in the common property by the terms of which the tenant was to receive a greater sum for his interest than his co-tenant, is not void, by reason of the failure to reveal the existence of such contract to the cotenant, where in making the sale of their respective interests, each tenant acted independently of the other.</p> <p>Id.—Sale of Interests in Common Property—Eight of Cotenant.— While ordinarily cotenants, by virtue of their unity of interest, sustain toward each other a gwosi-confidential relation with reference to the common property, and therefore the act' of one eotenant when dealing with the common property, if beneficial, will inure to the benefit of the other, and neither will be permitted to deal with the property to the detriment of the other, such relation of mutual trust and confidence, however, does not extend to and will not in and of itself operate to impair the right of one cotenant to dispose of his interest without consulting his cotenant at any time and for the best price obtainable.</p>

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

<p>Transfer of Personal Property—Contemplation of Death—Payment of Acknowledged Indebtedness por Services—Valid Sale. A bill of sale of personal property made by a person over seventy-one years of age, feeble, and then suffering from the illness from which he died five days later, t'o his nephew, who had for a period of two years been serving him in earing for him and his properly, and who was told by his uncle that he wanted to compensate him for Ms labor and would give him a bill of sale of the property, constitutes a transfer for a valuable consideration, and not an attempted gift causa, mortis.</p> <p>Id.—Conveyance op Beal Property—Verbal Promise op Grantees— Payment op Sums to Third Parties—Valid Transfer.—A deed of real property made by a person over seventy-one years of age, feeble, and then suffering from the illness from which he died ten days later, to two of his nephews, whom he had told on several occasions that he wanted them to have the property, in reliance upon their verbal promises to comply with his wishes as to the payment of certain sums of money to third parties to whom he owed no legal obligation, constitutes a valid "transfer, and not an attempted testamentary disposition of the property.</p>

<p>Conversion—Seizure and Sale of Property Under Execution— Colorable Sale—Justification.—In an action against a sheriff to recover damages for the alleged conversion of certain horses and vehicles of which the plaintiff alleged that she was the owner, and which the defendant seized and sold under a writ of execution issued on a judgment of a justice’s court in an action to which she was a stranger, sufficient justification for the seizure and sale, independent of the validity of the judgment, is shown by the evidence that the plaintiff and the judgment debtor were sister and brother, and that the transaction between them, upon which plaintiff relied, consisted merely in her brother taking the horses and vehicles out of his barn to the street', and stating to plaintiff’s agent there present that he had sold the property to the plaintiff, and then taking the property back t'o the barn and thenceforth using it in his business to all appearances as the owner, as he had done for several years previous thereto.</p>

<p>Contract—Employment to Sell Manufactured Goods on Salary— Action for Services—Performance—Sufficiency of Complaint. In an action to recover upon a written instrument, by the terms of which the plaintiff's assignor was employed to engage in the sale of certain manufactured goods of the defendant at a stated monthly salary, the complaint is not subject t'o demurrer for uncertainty in failing to aver whether such assignor performed any services or made any sales under such instrument, where it is alleged that the assignor “did engage in the sale of such goods for said company, and has fully and fairly performed all the conditions of said agreement on his part to be performed.”</p> <p>Id.—Money Expended for Benefit of Defendant—Dates and Items of Account—Sufficiency of Complaint.—A complaint in an action for money expended for the use and benefit of the defendant is not defective in failing to set forth specifically the dates of expenditures made, as such objection is the proper subject of a demand for a bill of particulars.</p> <p>Id.—Acceptance of Less Amounts Than Monthly Salary—Becovery of Deficiencies.—Evidence from which it appeared that plaintiff’s assignor from an early date in the period of his employment did not' receive the entire amount of his salary monthly, but would be sent by the defendant a less sum, accompanied by a “credit memorandum” for the difference, does not show that the original written instrument between the parties was so changed thereby that the assignor was not to have the deficiencies made up to him unless the business of the company proved profitable, where the assignor testified that he accepted such payments and memoranda because he thought that it was the best he could do at the time, and that he wanted to help the company along, and that he hoped, and was led to believe, that in the near future he would be paid in full.</p> <p>Id.—Costs—Fees of Sheriff and Notary in Attachment.—Fees for serving writs of attachment and notary fees in the matter of the affidavit and bond for the attachment are proper items of cost in an action in which an attachment is proper.</p>

<p>Architects’ Services—Authority of Person Contracting for Owners—Sufficiency of Evidence.—In an action to recover a sum of money alleged to be due as architects’ fees for the drawing of plans and specifications for a building to be erected upon the premises of the defendants, and for taking bids upon the same, the agency of the person who acted for the defendants in contracting for such services is sufficiently proven by evidence that such person was the agent of the defendants to get tenants for the building to be constructed on the premises, and that one of the defendants recognized the plaintiffs as his architects, and assured them that the erection of the building would be proceeded with in a short time.</p> <p>Id.—Lack of Legal Capacity to Sue—Refusal to Permit Filing of Amended Answer—Discretion not Abused.—The refusal to allow the defendants to file an amended answer, wherein they allege for the first time a lack of legal capacity in the plaintiffs to sue arising ' out of their alleged failure to comply with the provisions of sections 2466 and 2467 of the Civil Code, relating to the filing of certificates of partnerships, under fictitious names, is not an abuse of discretion, where such application was made upon the trial of the action, more than three years after the filing of the original answer.</p>

<p>Insurance—Recovery on Assigned Policy—Ownership of Property—Effect of Stipulation.—In an action to recover on a fire insurance policy by the purchaser of the property and the assignee of the policy, where it was stipulated on the trial that there was no dispute as to the ownership of the property, except that after the policy was issued, and prior to its assignment, the insured made a contract to sell the property to a person other than the plaintiff, and that such change in the title, if it' was a change in the title, constituted the essence or gist of the defense, the ownership of t'he property ceased to be an issue in the case, and evidence is properly excluded tending to show that a son of the insured having the same name signed the deed to the plaintiff instead of the insured himself.</p> <p>Id.—Approval of Transfer of Policy—Omission of Agent to Note Outstanding Contract of Sale—Knowledge of Fact—Waiver of Sole and Unconditional Ownership Clause.—Such a policy is not rendered void under the sole and unconditional ownership clause by reason of the omission of the agent who issued the policy and who indorsed upon the same the approval of the transfer of the policy to the plaintiff to note thereon the outstanding contract of sale, where the facts concerning such contract were fully known to such agent at the time of the conveyance and assignment to the plaintiff, • as the approval of the transfer, under such circumstances, amounted to a waiver of the clause respecting the title to the property, which otherwise would have rendered the assignment void.</p>

<p>Corporation—Reincorporation—Transfer or Assets from Old to New Corporation—When Fraudulent.—The identity of a corporation is not destroyed, nor are its legal obligations obliterated, by the mere fact of reincorporation under the same or a different name, and a transfer of the corporate assets from the old to the new corporation will, when warranted by the pleadings and proof, be considered as having been done to hinder, delay, and defraud creditors of the old corporation.</p> <p>Id.—Forfeiture of Charter—Transfer of Property to Newly Organized Corporation—Identity of Corporations—Liability for Services Rendered.—Whore a corporation upon the forfeiture of its charter for the nonpayment of a license tax, makes a transfer of all of its property to a newly organized corporation, and the latter occupies the same premises, uses the same furniture and publicly displays the old names at the original place of business, the new corporation is in effect only a mere reorganization of the old corporation, and therefore liable for services rendered to the latter prior to the transfer.</p>

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

<p>Criminal Law—Living in Cohabitation and Adultery—Sufficiency of Evidence.—A living together in a state of cohabitation and adultery within the meaning of section 269b of the Penal Code, as amended in 1911, which provides that if two persons each being married to another, live together in a state of cohabitation and adultery, each is guilty of a felony, is sufficiently established by evidence that such persons went to a hotel, registered there as man and wife, and occupied the same apartment for a portion of three days in an indisputably adulterous state and relation.</p> <p>Id.—Elimination of Words “Open and Notorious” from Code Section—Intention of Legislature.—The intention of the legislature in amending section 269b of the Penal Code by striking from the section the words "open and notorious,” before the phrase “cohabitation and adultery,” was to make the section applicable to those persons who, while each was simulating continence in their marital relations, were at the same time maintaining such a course of ■illicit and adulterous conduct with another of the opposite sex as would constitute a counterfeit of the marriage relation.</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 H. Cabaniss, Judge.</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 mayor of the City of San Diego to appoint a superintendent or chief, of police.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari originally made to the District Court of Appeal for the Third Appellate District to annul an order adjudging the petitioner guilty of contempt of court.</p> <p>The facts are stated in the opinion of the court.</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>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the First Appellate District to annul an award made by the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Intoxicating Liquors—Penalizing of Single Sales Without License —Valid Ordinance.—A municipal ordinance, which by its express terms is declared to be one for regulating the sale of spirituous liquors, and which is prohibitive and penal in its terms, and which explicitly makes it unlawful for any person to sell intoxicating liquors in any quantity whatsoever, unless he comes within one of the excepted classes, and has first obtained a license t'o make the sale, is a police regulation, and a single sale by a person not having a license, and not within the excepted classes, constitutes a violation of the ordinance.</p>

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

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a motion to set aside a judgment. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Storm-water District — Organization Under Act of 1909 — Acts of Supervisors—Review on Certiorari.—Under the act of the legislature, approved March 13, 1909 (Stats. 1909, p. 339), providing for the formation, organization, and government of storm-water districts for the purpose of protecting the land therein from damage from such waters and from the waters of innavigable streams, etc., a board of supervisors, in ascertaining the required facts and determining that they exist, exercises judicial functions, and its action therein is subject to review on certiorari.</p> <p>Ed.—Organization of Public Corporation by Local Board — Belief Against Void Proceedings—Certiorari.—The proceeding by writ of review is, under appropriate circumstances, the correct means of relief against void proceedings for the organization of a corporation for public purposes, where the method of creation of such corporation is prescribed by statute, and a local board is empowered to create the corporation upon certain conditions, and upon the ascertainment of certain facts, by such board, after a hearing held after notice to the parties interested. In ascertaining the required facts and determining that they exist', the action of the board is of a judicial character, and it sufficiently comes within the purview of the writ if such proceedings are of a judicial nature and are exercised by a quasi-judicial body.</p> <p>Id.—Jurisdiction to Organize Storm-water District—Ownership of Land by Petitioners—Passage of Resolution Prior to Proof of Ownership.—In a proceeding on petition to a county board of supervisors for the formation of a storm-water district, the board is not without jurisdiction to organize the district because of the fact that, prior to the adoption of the resolution of intention to form the district, no proof was made to the hoard that the signatures attached to the petition were the genuine signatures of the persons whose names were signed thereto, where the jurisdictional fact of ownership existed when the petition was filed, as the jurisdiction of the board to act in the first step of the proceedings depends upon the fact that the petitioners were owners of land in the proposed district', rather than upon the act of receiving ex parte testimony at a time when no hearing upon notice could occur as to such ownership.</p> <p>Id.—Insufficient Notice to Property Owners—Last Completed Assessment-roll — Lack- of Jurisdiction.—Under section 2 of the Storm-water District Act, which requires the clerk of the board of supervisors to mail copies of the notice of intention to form the district to each owner of land in the proposed district whose name appears as such on the last completed assessment-roll, the mailing of such notices prior to the first Monday in July, 1916, to the persons whose names in fact thereafter appeared on the assessment-roll of 1916-17 (hut omitting names of some persons whose names, as property owners within the proposed district, appeared upon the assessment-roll of the county for the year 1915-16), is not a sufficient notice to give the hoard jurisdiction to proceed further with the formation of the district, as under section 3672 of the Political Code there could not be a completed assessment-roll for such year 1916-17 until such first Monday in July.</p>

<p>Promissory Note — Indorser — Premature Notice of Dishonor.—An oral notification given by a notary public to the indorser of a promissory note that the maker of the note had absconded, and that' the note had not been paid, is not a sufficient notice of dishonor, where such notification was given in the course of the afternoon of t'he day of the maturity of the note, but at a time when several hours of such day yet remained, notwithstanding the note had been placed in the hands of a bank for collection, whose business hours closed at 3 o’clock in the afternoon.</p>

<p>Negligence—■ Passenger Alighting eroh Street-car — Contributory Negligence—Answer—Issue not Raised.—In an action for damages for personal injuries sustained by a street-car passenger while in t'he act of alighting from the car, the subject of contributory negligence is not an issue in the case so as to require the giving of any instructions thereon, where the answer alleges that the plaintiff had fallen and injured himself by his own act after his relations to the defendant' as a passenger had been fully terminated, as contributory negligence in its very essence is predicated upon conceded negligence on the defendant’s part while the plaintiff’s relation to it as a passenger, and its resulting duty t'o him as such, were still existent.</p> <p>Id.—Contributory Negligence — Nature oe Plea.—The plea of contributory negligence is one of confession and avoidance, and is predicated upon the existence of negligence on the part of the defendant.</p> <p>Id.—Manner op Alighting prom Car—Testimony op Plaintiff—Contributory Negligence not Introduced by.—The issue of contributory negligence is not introduced into such an action by the testimony of the plaintiff that he faced backward instead of forward in the act of alighting from the car, where it is also shown that he was otherwise using great care, and the manner of his alighting was due t'o his crippled physical condition.</p>

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

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

<p>Criminal Law — Murder — Trial — Unauthorized "Visit of Juror to Scene of Homicide—Changed Conditions—Lack of Prejudice.— In a prosecution for the crime of murder, the defendant is not prejudiced in Ms substantial rights by the misconduct of a juror in visiting the scene of the crime after the court had refused to make an order permitting the jury to view the premises, where such visit was made some eighteen months after the date of the alleged homicide, and the conditions had so changed that no information could then be obtained which would corroborate the testimony of the ' prosecution as to the surroundings at the time of the alleged crime.</p> <p>Id.—Exclusion of Spectators — Looking of Door to Courtroom — Failure of Dependant to Object — Eight to Public Trial not Affected.—In such a prosecution the defendant is not deprived of Ms constitutional right to a public trial by the action of the bailiff in locking the main door to the courtroom and keeping the same locked until after the noon recess, where the same was thus locked in executing an order of the court to clear the galleries because of a disturbance among spectators, and the defendant’s counsel, knowing that the door had been locked, made no objection thereto.</p> <p>Id.—Conduct: op Trial—Eight op Court.—The right of a defendant to a public trial does not prevent the court from removing spectators who create a disturbance which interferes with the orderly conduct of the trial.</p> <p>Id.—Waiver op Eight to Public Trial.—The right of a person accused of crime to a public trial is one for his benefit, which he can waive.</p> <p>Id.—Corpus Delicti—Degree op Phoop.—The rule that the corpus delicti must be established before the alleged confession of a defendant is admissible in evidence does not require such proof to be of the convincing character necessary to support a conviction.</p> <p>Id.—Instruction as to Manslaughter — Lack op Prejudice.— In a prosecution for murder, where the evidence shows murder in the first degree, error in instructing the jury on the law of manslaughter is favorable and not prejudicial to the defendant, as in view of the code definitions of murder and manslaughter it must be assumed that the jury would have convicted the defendant of murder if such instruction had not been given.</p> <p>Id.—Murder by Poison — Purpose op Bobbery — Manslaughter— Erroneous Instruction.—In a prosecution for murder, where the evidence shows that the crime was committed by means of poison for the purpose of robbery, which is defined by section 189 of the Penal Code as murder in the first degree, it is error to instruct the jury on the law of manslaughter, though that crime by section 1159 of such code is included in the crime of murder.</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>Cbiminal Law—"Violation of Local Option Law — Sufficiency of Evidence.—In a prosecution for violation of section 14 of the local option law, the evidence is sufficient to sustain a conviction, where it appears therefrom that at a certain time defendant was arrested at Ms residence in no-license territory, that at that time there were three persons under the influence of intoxicating liquor in the front room of the house, two of whom were sitting at a table, with a bottle of beer before them; that in the house were found several eases of beer, a number of bottles of whisky and an ice-chest, also drinking glasses and a number of empty bottles and beer eases; that defendant had occupied the premises for about two weeks, during which time different persons had been seen, on divers occasions and at various hours of the day, entering and leaving the house; and some money, amounting to a little more than two dollars in silver, was found in a “little pitcher” attached to the wall of the room in wMeh the men were found by the officers.</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—Review or Award—Extent op Inquiry—Jurisdiction.—Upon an application for a writ of review to annul an order of the Industrial Accident Commission awarding compensation for injuries received in an accident claimed to have occurred in the course of employment, the inquiry can extend only to the question of jurisdiction, but if there is no substantial evidence to support a material finding of the commission the award must be set aside and annulled.</p> <p>Id.—Injury to Laborer—Driving op Team—Temporary Exchange op Labor—Annulment op Award.—An award of compensation for injuries received by a laborer while driving a team hauling a gravel wagon during a temporary exchange of work with the teamster, must be annulled for lack of evidence to support the finding of the commission that the injury arose out of and in the course of employment, where it appears from the testimony of the applicant that he was employed to do the work of a laborer in shoveling gravel, and, from other testimony, that the custom of occasionally exchanging work between teamsters and shovelers was unknown to their employer.</p> <p>Id.—Custom ■—Course op Conduct—Essentials.—Before an alleged course of conduct can be legally held to have developed into a custom, it must be of such general and continuous practice among those engaged in the work as to constitute a regular course of conduct, and an occasional and sporadic departure from the usual and prescribed course of procedure among a part only of those to whom the custom is attributed does not meet the requirement of the rule.</p>

<p>Eminent Domain—Street Railroad Property—Damages—Evidence. In an action brought by a municipal corporation for the condemnation of certain lands for the opening and widening of a street, pursuant to proceedings had under the Street Opening Act of 1903, a street railroad corporation which owns a right of way over a part of the lands sought to be condemned, and upon which it maintains and operates a railroad, is entitled to introduce evidence of the nature and extent of the proposed improvement, and the changes in the railroad required thereby, for the purpose of showing the extent of its damage.</p> <p>Id.—Constitutional Law—Taking op Street Railroad Property— Compensation.—Taking of property of a street railroad for street purposes, longitudinally covering its right of way, is a taking within the meaning of article I, section 14, of the constitution, providing that private property shall not be taken for public use without just compensation.</p> <p>Id.—Measure op Damages.—The measure of damages for property of a street railroad taken by a city for street use, longitudinally covering its right of way, is the decrease in value of the use of the land for railroad purposes by reason of its use for street purposes.</p>

<p>Criminal Law — Murder — Judgment — Sufficiency of Evidence.— Upon this appeal frbm a judgment of conviction under an information charging the appellant with the crime of murder, it is held that the evidence was sufficient to justify the verdict, and that .no errors were committed in the course of the trial.</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>APPEAL from a judgment of the Superior Court of El Dorado County, and from an order denying a new trial. N. D. Arnot, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>¡Foreclosure of Mortgage—¡Party Plaintiff—Trustee of Express Trust.—Under section 369 of the Code of Civil Procedure, providing that a person with whom, or in whose name, a contract is made for the benefit of another is a trustee of an express trust within the meaning of the section authorizing such a trustee to sue alone without joining with him such other person, a cashier of a bank, who takes a note and mortgage in his own name for the bank’s benefit, may foreclose the mortgage without joining the bank with him as a party plaintiff.</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 — Confessions of Defendant — Proof of Corpus Delicti.—In a prosecution for the crime of robbery it is not necessary that the testimony of the prosecuting witness be corroborated in establishing the corpus delicti, as preliminary to the admission in evidence of testimony of confessions made by the defendant.</p>

<p>APPLICATION for a Writ of Mandate 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>Public Officers — Judge of Superior Court — De Facto Officer— Salary.—One elected to the office of judge of the superior court, while merely acting as a de facto officer prior to the issuance of a commission to him, is not entitled to collect salary.</p> <p>Id. — Garnishment of Officers’ Salaries — Construction of Section 710, Code of CIvil Procedure.—There appears to be no constitutional grounds upon which it may be concluded that the officers’ salaries subject to process of garnishment under section 710 of the Code of Civil Procedure are salaries of officers other than judges of the superior court.</p>

<p>Judgment—Motion to Set Aside Default—When in Time.—An application to vacate the default of defendant and to set aside an interlocutory judgment for divorce, under section 476 of the Code of Civil Procedure, upon the ground of mistake', inadvertence, surprise, and excusable neglect, will be held to have been made in time, where the notice of motion, with affidavits and a copy of the proposed answer, was served and filed, and the motion noticed for a date within six months from the entry of the default and judgment, although the hearing of the motion was not had until after that time, the records showing that at the time noticed for the hearing, the motion came on regularly to be heard at this time, and it was continued by consent of the parties to a time beyond the six-months' period.</p>

<p>Criminal Law—Instruction—Witness False in Part of Testimony. In a criminal action the right of the defendant to a fair and impartial trial is not prejudiced by the modification of an instruction offered by him declaring that a witness false in a material part of his testimony “is to be” distrusted in others, and that where the jury was satisfied that a witness had so sworn falsely they “must” treat all of his or her testimony with suspicion, so as to make the instruction read that a witness willfully false in a material part of his or her testimony “may be” distrusted in others, and that the jury “might” treat all of his or her testimony with distrust and suspicion under such circumstances. Such instruction relates to commonplace matters which the jury would be apt to know and act upon in the absence of instruction.</p> <p>Id.—Failure to Flee From Scene of Crime—Circumstance of Innocence.—In a prosecution for murder the refusal to instruct the jury that the fact that the defendant did not flee from the scene of the shooting was of itself a circumstance in his favor, is not error, as it will be assumed that the jury considered the matter, as one of the commonplace things of which the mind of an ordinary man will take cognizance without instruction.</p> <p>Cd.—Taking op Exhibits to Jury-room—Lack op Prejudice.—In such a prosecution, the rights of the defendant are not prejudiced by the fact that the jury were permitted to take with them into the jury-room, while deliberating on a verdict, the door through which the bullets were fired and certain blackboard illustrations, all of which were introduced in evidence, in .the absence of' any showing made that such exhibits were used in their deliberations, or that they received any improper impressions therefrom.</p> <p>Id.—Evidence—Incriminatory Statements.—In such a prosecution evidence of incriminatory statements made by the defendant to a police officer are admissible, where it is shown by such officer that no inducements were held out or improper influence exerted by himself or any other person to his knowledge, notwithstanding the accused had been in charge of other officers and in jail prior to the making of the statements.</p>

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

<p>Water District—Hearing of Petition for Formation—Place—Sufficiency of Notice.—Under the act of the legislature approved June 10, 1913, providing for the organization of county water districts, a notice of the time and place of the hearing of the petition for the creation of such a district, reciting that the hearing would be held at the office of the board of supervisors in the county courthouse, is sufficient to give the board jurisdiction to hear the petition, notwithstanding the board did not meet in the courthouse, but at the regular place of meeting of the board in the hall- of records across the street from the courthouse, where it is shown that the objecting land owner was present at the hearing and participated therein, and that the hall of records was one of the group of buildings devoted to such official activities and uses as are commonly conducted in courthouses.</p> <p>Id. — Benefits from District — Finding on Conflicting Evidence — Matter not Reviewable on Certiorari.—In the creation of a county water district, the finding of the board of supervisors on conflicting evidence that certain lands were by location and nature of such character as to be benefited by the creation of the district, cannot be reviewed on certiorari.</p>

<p>Criminal Law—Trial—Order of Proof—Corroboration of Evidence in Chief by Rebuttal Testimony.—In a criminal action it is not a ground for complaint that a witness called by the prosecution in rebuttal, was, over defendant’s objection, permitted to give testimony, a part of which was in rebuttal of no evidence adduced on behalf of the defendant, but which tended to corroborate evidence in chief offered by the people, where no abuse of discretion is affirmatively shown from the ruling, as under section 1093 of the Penal Code the court has discretion to depart from the order of proof under proper circumstances.</p> <p>Id.—Right to Contradíct Evidence—Lack of Tender—Appeal—Point NÓT Available.—Where the defendant made no tender of evidence to contradict such rebuttal testimony, he cannot complain on appeal that he was deprived of the right to introduce such evidence.</p> <p>Id.—Exemption from Prosecution—Extrajudicial Statement-Section 1324, Penal Code, Inapplicable.—A defendant in a criminal action cannot invoke the provisions of section 1324 of the Penal Code by reason of the fact that he, prior to the issuance of a warrant for his arrest and while he was in jail, made a statement to the justice of the peace with reference to his movements and whereabouts at the time of the commission of the offense, as such statement was not made in the course of any trial, hearing, or judicial proceeding, as defined tiy that section, nor to such justice' in his judicial capacity.</p> <p>Id. — Instruction — Disregard of Emphatic Opinions by Jurors — Commonplace Matters.—An instruction that emphatic expressions of opinions of jurors are rarely productive of good, and that jurors should hold their minds in such state that they might fully and freely interchange views with each other, and receive suggestions from fellow-jurors, and that it is advisable both for the interest of the state and defendant that a verdict should be returned, is not prejudicial to the rights of the defendant, as it consists of commonplace matters, which would have occurred to the jury without instruction.</p>

<p>Pleading"—Late Filing of Answer — Order Striking from Files — Abuse of Discretion.—An order striking an answer from the files for failure to file the same within the time allowed by the court upon the overruling of the demurrer to the complaint is an abuse of discretion, where the pleading was filed but one day late, and set forth a' meritorious defense, and the plaintiff made no move to strike it from the files until one month after it was filed.</p> <p>Id.—Answer Filed After Time—Striking from Files—Discretion.— An answer filed late is an irregularity and not an absolute nullity, which the plaintiff, as a matter of strict legal right, is entitled to have stricken from the files, but such a case is one for the exercise of judicial discretion in view of all the facts and in the promotion of justice.</p> <p>Id.—Extension of Time by Conduct.—When a party, after the time expressly granted for filing a pleading against him has expired, suffers further time to elapse without taking any action thereon, and in the meantime the pleading is served and filed, he, by such conduct, in effect grants the additional time, and the party is not strictly in default.</p> <p>Id. — Entry of Default — Privilege. — The entry of the defendant’s default is no more than a privilege which may or may not be exercised by the plaintiff, and when it has not been taken advantage of before the defendant files his answer he cannot be regarded strictly as in default.</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>Contract—Conditional Sale or Automobile—Assignment—Notice to Purchaser.—Where a contract for the conditional sale of an automobile has attached to it a printed form of notice to the effect that the seller had upon the date thereof sold, assigned, and transferred the contract, together with his right, title, and interest in the automobile covered thereby, and that the seller’s sole connection with the contract thereafter would be that of an agent of the assignee for the sole purpose of collecting the payments to become due on the contract, and that all other dealings in relation to the contract must be had with the assignee, such notice, although the name of the assignee was left blank, while insufficient to constitute in itself a notice of the assignment of the contract to any particular person, constituted some sort of notification to the purchaser of an existing purpose and intent on the part of the seller to make a present transfer of the contract, sufficient to put the purchaser upon notice that any subsequent settlement with the seller would be at the peril of the purchaser.</p> <p>Id.—Conditional Sale—Ownership.—In the ease of a contract for a future and conditional sale, the ownership of the thing to be sold and transferred in futuro need not be in the person making the agreement of sale at the time of such agreement.</p>

<p>Criminal Law—Possession op Stolen Property Unexplained—Effect of Proof—Instruction.—In a prosecution for the crime of burgldry, the defendant is not prejudiced by the giving of an instruction with reference to the possession of stolen property, unexplained, and the effect of such proof, where no evidence was introduced tending to show that the defendant had the property in his possession.</p>

<p>APPEAL from an order of the Superior Court of Santa Barbara County denying a motion to dismiss and denying a motion for a new trial. Leslie R. Hewitt, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

. APPEAL from a portion of a judgment of the Superior Court of Merced County, and from an order denying a new trial. E. N. Rector, Judge. The facts are stated in the opinion of the court.

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

<p>Appeal—Undertaking Stating Execution—Judgment Against Sureties—Determination op Amount—Costs Awarded on Former Appeals.—In entering a judgment against the sureties upon an undertaking given to stay the execution of a judgment pending an appeal, the trial court has no jurisdiction in determining the amount of the judgment to take into consideration costs which had been awarded to the appellant on two former appeals, where it is shown that proceedings to collect such former awards had been taken and were involved in another appeal yet to be determined.</p>

<p>Building Contract—Payments Without Architect’s Certificates— Waiver of Requirement as to Pinal Payment.—Where a property owner in making installment payments under a building contract disregards the requirement that architect’s certificates shall be first produced, he thereby waives such requirement as to the final payment. .</p> <p>Id.—Recovery by Contractor—Certificate of Architect—When not Required.-—Where a building is completed according to contract and the architect refuses his certificate, the contractor may recover, notwithstanding the provision in the contract that payment shall be made only upon production of the certificate.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County dismissing a proceeding in Certiorari to review a judgment of a justice’s court. Grant Jackson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Landlord and Tenant—Obligation oe Lessee to Make Bepairs.— "Where a lease provides that the lessor shall not be called upon to-make any repairs, and that the lessee will keep the demised premises in good order and repair at his own cost and expense, the-latter is bound to make repairs ordered by municipal authority, and where such repairs are not made, and a portion of one of the walls of the premises collapses, the lessee is not entitled to abandon the premises, nor is he relieved from the obligation to pay the agreed rent.</p> <p>Id.—Termination oe Hiring—Code Provision Inapplicable.—Section 1932 , of the Civil Code, providing that the hirer of a thing may terminate the hiring when the greater part of the thing hired perishes from any other cause than the want of ordinary care of the hirer, is inapplicable to a lease which requires the lessee to make the repairs.</p>

<p>Action fob Maintenance—Misconduct of Husband Prior to Marriage—Evidence Outside of Issues.—In an action by a wife for maintenance without divorce, based upon cruel and inhuman treatment, it is prejudicial error to permit the plaintiff to testify, over objection, that the defendant had had intercourse with her frequently for seven or eight years prior to their marriage, and at nearly every occurrence he had promised to marry her, where the pleadings contained no appropriate allegation with reference to the defendant’s acts before the marriage.</p> <p>Id.—Specific Acts of Cruelty—Evidence.—Evidence of specific acts of cruelty is not admissible under a general allegation of cruel treatment.</p> <p>Id.—Wife’s Necessities—Evidence.—In such an action, the court should permit inquiry into the necessities of the plaintiff, and her manner of living in order that a suitable award might be made.</p> <p>Id.—Commitment of Plaintiff to Asylum—Cross-examination.— Where the plaintiff alleged as an act of cruelty that the defendant caused her to be committed to an insane hospital, and she testified on her direct examination to acts concerning the commitment that would necessarily create the Impression that she was sane at the time of such occurrence, it is improper to curtail .defendant’s inquiry on cross-examination directed to the point that she did not know even that she was examined or committed; in other words, that her mind was blank as to what happened.</p> <p>Id.—Eight of Plaintiff to Verdict—Evidence of Crueizty— Erroneous Instruction.—An instruction that if the jury found that the plaintiff was sane at the time of the marriage and there is evidence of cruelty, the' verdict will be for the plaintiff, and that if the jury believed from the testimony that the plaintiff was treated in a cruel and inhuman manner as alleged in the complaint, and that the general treatment of the plaintiff was cruel and inhuman, their verdict must be for plaintiff, is erroneous, as it authorized the jury to find for plaintiff if there was any evidence of cruelty, and also ignored the consideration of the weight and credibility of the evidence and the proper function of the jury in relation thereto, and also failed to state the elements that should enter into the determination of the amount to be awarded the plaintiff.</p> <p>Id.—Wife’s Insanity at Time of Marriage—Instruction—Eight of Defendant.—Where it is alleged as an act of cruelty that the defendant had the plaintiff committed to an asylum, the defendant has the right to have the jury instructed along the line . suggested by him in requests concerning his theory as to the wife’s insanity at the time of marriage.</p> <p>Id.—Attorney’s Pee—Allowance to Wife—When Proper.—A wife is entitled to an attorney’s fee in a suit for maintenance only when it is necessary to enable her properly to maintain the action, and the burden is upon her to show the allowance is necessary.</p>

<p>Public Nuisance—Diversion op Waters Into San Joaquin Eiver— Abatement Under Drainage Act—Venue.—An action brought by the state reclamation board under the act of the legislature in effect August 10, 1913 (Stats. 1913, p. 252), to abate as a public nuisance the diversion of waters into the San Joaquin Eiver, in violation of section 12 of such act, declaring the diversion of the waters of any stream that will increase the flow of the Sacramente and San Joaquin Rivers to be a public nuisance, which may be abated by such board, must be tried in the county in which the subject of the action or some part thereof is situated, as such an action involves injuries to real property.</p> <p>Id.—Pleading—Sufficiency of Complaint.—A complaint in an action brought in San Joaquin County to abate as a public nuisance the diversion of the waters of Kings River into the San Joaquin River, contrary to section 13 of the Drainage Act of 1913, need not allege that some specific subdivision or tract of land situated in San Joaquin County was injured, nor that the alleged injury was immediately present, for relief will be awarded when the danger is apparent or the mischief already done.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank F. Oster, 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>APPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Paul C. Morf, City Attorney, G. E. Jackson, Assistant City Attorney, and John J. Earle, Deputy City Attorney, for Appellant.</p>

<p>Guaranty — Denial on Belationship and Liability—Demand .not Bequired.—In an action to recover on a guaranty, proof of demand for payment and refusal before action brought is not required, where the verified answer of the defendants not only denied any liability but denied the alleged relationship existing between them and the plaintiff.</p> <p>Id.—Failure to Observe Condition Precedent—When not Fatal.— While it is within the power of a guarantor to make his obligation dependent upon notice, demand, or any other condition he deems proper for his own protection and safety, the law neither does nor requires idle acts, and a failure to observe a condition precedent is not always and under all circumstances fatal to recovery, as, for example, where the relationship and liability are both denied.</p>

<p>Street Railroads—Crossing City Streets—Duty of Pedestrians.— The rule governing the duty of a pedestrian about to cross a steam railroad or an interurban electric railroad in the country does not apply in all its strictness as against pedestrians in crossing a city street. They are required to use ordinary care, which is that degree of care which people of ordinarily prudent habits could be reasonably expected to exercise under the circumstances of a given case.</p> <p>Id.—Injury to P!edestrian—Collision With Car—Instruction—Duty in -Crossing Behind Car.—In an action for damages for injuries received from being struck by a street-car while crossing a city street, an instruction that a person alighting from a car and intending to cross the street behind the same is charged with the duty of exercising ordinary care to look and listen for approaching cars before attempting to cross, and is charged with the duty of keeping up the exercise of ordinary care in looking and listening for approaching danger until the last moment, before passing from a place of safety to one of danger, and that the omission of such care constitutes negligence, and if thereby plaintiff contributes directly or proximately to the injury she cannot recover, while it might well have been given, as it is a correct statement of the law, the same rule is sufficiently and correctly stated in a given instruction that the motorman in charge of a car has the right to assume that a pedestrian in the street is in the possession of all his faculties, unless there is notice to the contrary, and will use reasonable diligence and ordinary care to avoid danger to himself, and that the failure to use such diligence and care is negligence, and that if the plaintiff negligently placed herself in a position of danger from which she was unable to escape, and the motorman of the car which struck her used every effort in his power to avoid striking her after discovering her danger, the verdict must be for defendant.</p> <p>Id.—Position of Peril — Duty of Plaintiff — Instruction.—An instruetiorL that if plaintiff found herself suddenly put into peril, without having sufficient time to consider all the circumstances, then she might be excusable for omitting some precautions or taking an immediate choice under this disturbing influence, although, if her mind had been clear, she ought to have done otherwise, and that if she found herself in imminent danger, just prior to and at the time of the collision, and at that time tried to escape the peril, and in thus doing acted as an ordinarily prudent and reasonable person would have acted under the same or similar circumstances and conditions, the jury could not find on this account that she was guilty of contributory negligence, does not purport to say that a person in sudden peril by his own negligence is relieved from the imputation of contributory negligence, but only states the principle that an unwise choice under such peril is not of itself contributory negligence, when considered with the instruction that all the instructions are to be considered by the jury in arriving at their verdict, and the instruction that if the plaintiff had failed to use such care that a person of ordinary prudence would have used under the same or similar circumstances, and such failure contributed proximately to or proximately caused the injury, the plaintiff could not recover.</p> <p>Id.—Contributory Negligence—Instruction.—An instruction that if the plaintiff, at the time of the accident, may or may not have been guilty of such contributory negligence as under the instructions of the court would relieve the defendant from any liability which otherwise would have attached, then before the jury could find for the defendant, it must appear further by a preponderance of evidence that plaintiff was guilty of such contributory negligence as to excuse the defendant, which must appear from satisfactory evidence or such inferences as the jury may legally draw from the evidence, and that the jury must not speculate or guess, but their minds must be convinced, does not state the doctrine of comparative negligence, but only requires that it be established that plaintiff was guilty of such contributory negligence as to excuse defendant.</p>

<p>Claim and Delivery—Description of Property—Rule as to Money.-—In an action in claim and delivery it is essential that the specific personal property claimed should be described with a reasonable-degree of certainty, and, as a rule, money is not the subject of such an action, unless it be marked or designated in some manner so as to make it specific as regards its capability of identification.</p> <p>Id.—Money Taken Under Execution—Pleading—Sufficiency of Complaint.—In an action in claim and delivery to recover of a sheriff a sum of money claimed to have been unlawfully taken under execution, where the complaint, irrespective of what the plaintiff has styled it, is sufficient to show him to be entitled to recover from the defendant, upon the theory that he has, as required by the code, stated the facts constituting his cause of action, or facts showing a cause of action for money had and received, a judgment in favor of the plaintiff must be sustained, although the complaint does not describe the money sufficiently to entitle plaintiff to its return in specie.</p> <p>Id.—Pleading—Action Under Code.—Under the code there is but one form of action, which has no name, and it cannot be defeated, as it could have been at common law, because not properly named.</p> <p>Id.—Code Provisions—Auxiliary Remedy.—Sections 509 to 620 of the Code of Civil ’Procedure merely provide an auxiliary remedy by which, when a party brings an action to recover personal property, he may “claim” that the property be immediately delivered to him at the commencement of the action without waiting the trial.</p>

<p>Sale—Use in Performance of Assessment Work—Nonliability of Defendants—'Sufficiency of Evidence.—In an action to recover the reasonable value of certain goods, wares, and merchandise alleged to have been sold and delivered by the assignor of the plaintiff to the defendants as a copartnership and individually, findings in the defendants’ favor are sufficiently supported by evidence that the goods were purchased by a third party for the purpose of using the same in connection with the performance of the assessment work upon certain placer mining claims, in making the locations for which the names of the defendants were used without their knowledge or authority, and subsequently ratified upon the condition and understanding that none of the defendants should assume or be charged with any personal liability because of such locations, but that such third party should care for the property, perfect the title, sell or work the locations, and provide all funds necessary for such purposes at his own cost and expense.</p>

<p>Workmen’s Compensation Act—Injury to Minor—Thoughtless Disobedience op Orders—Eight to Compensation.—Under the provisions of the Workmen’s Compensation Act, a boy of the age of fifteen years employed to act as a general helper around a gold dredger is not chargeable with such willful misconduct as to deprive him of the benefits of the act, in attempting to oil the machinery without waiting until the same had come to a full stop, notwithstanding an express warning not to oil the machinery while in motion, where such violation of instructions was not done intentionally and deliberately, but in a moment of thoughtlessness and for the purpose of saving time.</p>

<p>New Trial—Notice of Intention—Statement of Grounds of Motion. The provision of section 659 of the Code of Civil Procedure that the party moving for a new trial must designate in his notice of intention the grounds upon which the motion will he made, obviously refers to the grounds upon which a new trial may he allowed as specified in section 657 of such code, and contemplates that the grounds designated shall go no further than to specify them in the notice of intention in the general language of the last-mentioned section.</p> <p>Id.—Insufficiency of Evidence — Specification of Particulars.— Where there is a reasonably successful effort to state the particulars of the insufficiency of the evidence, and the specifications are such as may have been sufficient to notify opposing counsel and the court of the grounds relied upon, the appellate court ought not to refuse to consider the case on appeal.</p> <p>Id.—Order Granting New Trial—General Terms—Duty of Appellate Court.—Where the trial court in granting a motion for a new trial does not expressly-limit the order granting the motion to any particular ground of those stated, it is the duty of the appellate court to sustain the order if it can he upheld upon any ground embodied in the notice of intention.</p> <p>Id.—Determination of Motion for New Trial — Insufficiency of Evidence to Justify Verdict—Discretion—Appeal.—The granting or denying a new trial on the ground that the evidence is insufficient to justify the verdict, where there is a substantial conflict in the evidence, rests so fully in the discretion of the trial court that its action is conclusive upon the appellate court unless there has been an abuse of discretion.</p> <p>Id.—Eminent Domain—Order Granting New Trial—Value of Property—Conflict of Evidence — Presumption on Appeal.—On an appeal from an order granting a new trial in an action in eminent domain, where there is a pronounced conflict in the evidence on the question of the value of the property sought to be condemned, the appellate court is authorized to presume, in support of the order, that. one of the reasons allowing the motion was that the evidence was insufficient to support the verdict.</p> <p>Id.—Condemnation of Mining Property—Right of Way for Conveyance of Water—Value—Conflict of Evidence—Order Grantrae New Trial—Discretion.—In an action in eminent domain to condemn certain mining property for a right of way to convey water, where the witnesses for the defendant testified that the value of all the defendant’s properties was from one hundred thousand dollars to one hundred and twenty-five thousand dollars, and the plaintiff’s witnesses testified that the properties were valueless, for any purpose, an order granting a new trial on the ground of the insufficiency of the evidence to support the* verdict fixing the value at four thousand dollars is not an abuse of discretion.</p>

<p>Specific Perfobmance^Contract to Convey Land—Adequacy of Consideration—Burden of Proof.—In an action for specific performance of an agreement to convey land it is the duty of the plaintiff to prove the adequacy of the consideration for the contract.</p> <p>Id.—Construction of Code—Distinct Ground for Granting Belief.— In view of the provisions of section 3391 of the Civil Code, the adequacy of the consideration for the contract is a distinct and independent ground for granting specific performance, and it must be proved, or the relief will not be granted.</p>

<p>Adverse Possession—Possession and Payment op Taxes — Time.— Where a claim of title to real property is based upon adverse possession, it is necessary for the claimant to show that he has been in the continuous and uninterrupted possession of the property for a period of five years preceding the commencement of an action to-quiet his title thereto, and that he has paid the taxes thereon for such period.</p> <p>Id.—Payment op Taxes — Double Payment Unauthorized.—Under section 325 of the Code of Civil Procedure, it is an indispensable prerequisite that the adverse claimant shall have paid all taxes levied and assessed within the period of his occupancy, and if they have been paid prior to the time he offers payment, the tax debt for that year has been satisfied, and the double payment amounts to naught.</p>

<p>APPLICATION for a Writ of Habeas Corpus.</p> <p>The facts are similar to those stated in People v. Pages, ante, p. 37.</p>

<p>Foreign Corporation—Doing Business in California—Stockholders’' Liability.—Judgment and order refusing a new trial affirmed on the authority of Provident Gold Mirnng Company v. Haynes, 173 Cal. 44.</p>

<p>APPLICATION for a Writ of Habeas Corpus.</p> <p>The facts are similar to those stated in People v. Pages, ante, p. 37.</p>

<p>APPLICATION to review an award of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Colusa County. H. M. Albery, Judge.</p> <p>The facts are similar to those stated in the opinion in Superior California Fruit Land Company v. Grossman, ante, p. 357.</p>

<p>Eminent Domain—Surveyed School Lands Within Federal Reservation.—Judgment affirmed on the authority of Pacifc Power Company v. State of California, ante, p. 175.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are similar to those stated in the opinion in Tidewater Southern Badlway Company v. Vance, 31 Cal. App. 503.</p>

<p>Workmen’s Compensation Act.—Award affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County. A. B. McKenzie, Judge.</p>

<p>APPLICATION for a Writ of Habeas Corpus.</p> <p>The facts are similar to those stated in the opinion in Matter of Wisner, a/nte, p. 637.</p>