Volume 34 — California Appellate Reports

MOTION to dismiss an appeal from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge. The facts are stated in the opinion of the court.

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APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Third Appellate District to annul an award made by the Industrial Accident Commission.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

<p>Conversion—Sale of Galvanized Ice Cans—Sufficiency of Evidence.—In this action for damages for the alleged unlawful conversion of galvanized ice cans, it is held that the evidence is sufficient to sustain the defendant’s contention that the cans were purchased by defendant’s predecessor from plaintiff.</p> <p>Id.—Corporation Law—Acts of Officers—Authorization by Directors.—It is not necessary, in order to bind a corporation, that all acts done by its officers or agents should be specifically authorized by the board of directors, and such authorization entered in its books.</p>

<p>Criminal Law—Murder—Remark of Court to Jury—Recommendation of Mercy—Lack of Prejudice.—In a prosecution for murder, a statement made by the court in answer to a question asked by the jury after they had deliberated some hours, as to whether a recommendation of mercy would be followed if made, that it was their duty to return a verdict and that they had an absolute right to make a recommendation, followed by the explanation that, except in th.e case of a verdict of murder in the first degree, the court would not be compelled to follow the jury’s recommendation, is not to be taken as a coercion of the jury in returning a verdict, as when taken in connection with the instruction that the jury were the sole judges of the facts, it meant no more than that the finding of a verdict rested with the jury.</p> <p>Id.—Consideration of Testimony of Defendant—Instruction.— "Where the testimony of the defendant did not differ materially from that of other witnesses, and was sufficient of itself to justify his conviction, the refusal to instruct the jury specially as to how they should weigh the testimony of the defendant is not a ground for reversal, where the instructions given stated the rules as to the weighing the testimony of all witnesses.</p> <p>Id.—Matters Stricken Out—Disregard by Jury—Instruction.— The refusal to give a.n instruction that the jury must disregard answers stricken from the record and must draw no inferences from what they might think to be the court’s opinion as to the weight to be attached to the evidence or the credibility to be given to a witness, is without prejudice, where the jury was instructed that they were the sole judges of the facts, and that the court had nothing to do with the questions of fact or the credit to be given witnesses.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hartley F. Peart, U. S. Webb, Attorney-General, Albert H. Elliott, and Gus L. Baraty, for Appellant.</p>

<p>Contract for Sale of Motor Truck—Lease Culminating Transaction—Rescission.—Where, in an action to enforce rescission of a contract for the purchase of a motor truck, it is shown that on the day following the making of the contract the defendants executed a lease of the truck to the plaintiff which provided for deferred payments, evidenced by notes, and that the truck was not delivered until after the execution of the lease and notes, a judgment in favor of t'he plaintiff based upon the rescission of the contract without any rescission of the lease is unwarranted, as the lease was the conclusion and culmination of the transaction by which the rights of the parties must be adjudged.</p> <p>Id.—Retaking of Truck—Evidence—Findings.-—In this action to enforce a rescission of a contract for the purchase of a motor truck, it is held that the findings that the plaintiff, upon discovering the untruth of the representations concerning the capacity of the truck, informed defendants that the truck was valueless to him, that he returned it to defendants, and that they accepted and received it, has no support in the evidence, but that the evidence shows that the truck was seized by defendants for nonpayment of a deferred payment with plaintiff’s acquiescence.</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 Daw—Commitment by City Police Court—Sufficiency of —Habeas Corpus.—A defendant is not entitled to his discharge upon habeas corpus under a commitment of a city police court reciting that the petitioner was on a stated day convicted of the crime of violating the poison law, on the ground that the commitment did not sufficiently describe the offense, in the absence of any statute prescribing the form of commitments in such courts, and it being shown that the court had jurisdiction of the crime.</p> <p>Id.—Remedy by Appeal.—There is no statute affecting police courts which prescribes any particular form w'hich a commitment shall have. The judgment of the court as entered is expressed by recital in the commitment. For any error or irregularity in the judgment or the entry thereof, the remedy is by appeal.</p>

<p>Contract—Construction op Factory—Agreement Between Chamber op Commerce and Corporation—Payment op Bonus—Extent op Liability.—An agreement between a voluntary organization of residents of a city and a corporation desirous of locating a factory therein, that the corporation would erect the factory and that the organization would upon proof that the corporation had spent certain sums in wages to employees, pay the corporation a bonus, to be raised by contributions, and that before execution of the agreement each would show the other that the necessary cash had been provided in fact, is not to be construed as an agreement by the organization or its members to pay the bonus at all events, but as an agreement to pay from a certain particular fund, and where the corporation waived the right to have the fund secured in advance, and was paid the full amount collected, it cannot hold the members primarily liable for the unpaid bonus.</p> <p>Id.—Voluntary Association—Pleading—Parties.—A voluntary association of residents of a city organized for the purpose of promoting public welfare, and from which the members derived no specific individual profit or profit different from that which would accrue to the municipal community, is not engaged in any business, within the meaning of section 388 of the Code of Civil Procedure, providing that persons associated in “business” and transacting it under a common name may be sued by such name, and that judg- ■ ment may be taken against members served, though not named as parties.</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 Kern County, and from an order denying a new trial. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Receivership—Duration—Duty op Court.—A court is not justified, through the medium of a receiver, in arbitrarily withholding property from the owner’s control and enjoyment for an indefinite and unnecessary period.</p> <p>Id.—Mandamus—Discretion op Court.—A court cannot be made by ma/ndaums to exercise its discretion in a particular manner.</p> <p>Id.—Discharge op Receiver—Sale op Property—Discretion.—Mandamus will not issue to compel the superior court to discharge a receiver appointed to manage real property, collect the rentals, and apply the same according to the terms of a decree in an action for maintenance, in order to allow the husband to make a sale of his interest in the property, regardless of his willingness to give such security for the protection of the persons interested in the receivership as the court may require, as such a question is one addressed to the sound discretion of the trial court.</p>

<p>Suretyship—Payment oe Bent—Limitation op Liability.—A surety on a bond given to secure the payment of rent who makes payment to the lessor of the full amount stated in the bond is not required to account to the lessor for any amount received from the lessees by way of reimbursement, and where a sum in excess of the amount of the bond is paid by the surety to the lessor by mistake, it may be recovered.</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>Hunsaker & Britt, W. W. Middlecoff, Joseph L. Lewinsohn, and W. N. Goodwin, for Intervener and Appellant.</p>

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

<p>Assignment fob Benefit of Creditors—Regularity—'Estoppel.— Where an assignment of property is made for benefit of creditors, a creditor who has his attorney attend a called creditors’ meeting and two days thereafter, with full knowledge of the assignment and its purpose, has his attorney deliver a statement of his account to the assignee, waives all objections to the regularity of the assignment.</p>

<p>Counties—Experting County Books—Illegal Contract by Grand Jury—Unauthorized Ratification by Supervisors.-—The board of supervisors of a county has no authority to ratify and approve a contract made by the grand jury employing experts to examine the books of the county officials, where the contract provided for a compensation which-in amount directly violated the provisions of section 928 of the Penal Code.</p> <p>Id.—Contract—Violation of Statute—When Illegal.—A contract is illegal which is made in direct disregard of the provisions of a statute which provides for and regulates the making of such contract.</p>

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

<p>Vendor and Purchaser—Sale op Leased Apartment House—Recovery op Rent—Constructive Notice op Relations op Parties Interested.—Where the lessor and lessees of an apartment house enter into an agreement with a third party for furnishing the house and the installing of a manager to operate it, and therein provide that they shall ■ receive no rent for the premises during the continuation of the agreement, but that the net profits of the business shall be divided equally between them, and the loss, if any, borne equally, and that nothing therein shall be construed to be a partnership, and thereafter on the same day the lessor and lessees enter into an agreement providing that the other agreement shall in no way affect the lease, that if any loss resulted it shall be borne equally, and that any profits shall be divided in the same manner, a purchaser of the apartment house, without actual knowledge of the second agreement, is put upon inquiry as to the relations between the lessor and lessees, and is charged with knowledge that the right to collect the rent has ceased and that the partnership relation has been substituted therefor, by his knowledge of the first agreement and of the third party’s possession thereunder.</p>

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

<p>Municipal Corporations—Kegulation of Private Patrol System— “Municipal Affair.-”—The matter of the licensing and regulation of a private patrol service or system within designated limits of the city of Oakland is a “municipal affair” within the meaning of section 6 of article XI of the Constitution, investing municipalities with full power to legislate in all matters embraced within the term “municipal affairs,” uncontrolled by general laws.</p> <p>Id.—Private Detective Act—Control by Municipal Ordinance.—In so far as the act of the legislature, approved June 7, 1915, licensing and regulating the business of private detectives and detective agencies, undertakes to provide that private detectives holding licenses from the state board of prison directors might act, or authorize their employees or operatives to act, as uniformed patrolmen or watchmen within the city of Oakland, but without complying with the local ordinances of such municipality regulating such service, the provisions of the act must yield to the superior control of the city ordinance regulating the granting of permits to conduct or maintain any private patrol system or service in the city.</p> <p>Id.—Validity of Ordinance—Reference of Applications to Chief of Police.—An ordinance regulating the granting of permits to conduct a patrol service, fixing a license therefor, and providing a penalty for violations, is not invalid, because of the provision that applications shall be referred to the chief of police, who shall make investigation and report to the council.</p>

<p>APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the Superior Court from proceeding with the trial of petitioner under an accusation.</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>Assignment of Causes of Action—Fraud—Sale of Corporate Stock. Under sections 953, 954, and 1044 of the Civil Code, causes of action for damages sustained by various stockholders in a corporation in making sales of their respective shares of stock upon the false representation of a fellow-stockholder more familiar with the values of the corporate property than themselves, that the price reported by him to them was all that could be obtained for the stock, are assignable, as they are not merely causes of action for fraud and deceit, but involve substantial rights of property.</p>

<p>School Law—Discharge of Teacher—Giving of Notice — Eight of Board of Education.—A board of education has the right, by virtue of the provisions of subtitle “b,” subdivision 7, of section 1617 of the Political Code, to dispense with the services of any teacher in the public schools at the close of any school year by giving notice to the teacher on or before the tenth day of June that his services will not be required for the ensuing year, as the privileges and requirements of the civil service system have not as yet been made applicable to teachers in the public schools of the state.</p>

<p>Divorce—Award of Custody of Minor Child to Mother—Nonliability of Father for Support.—Where in a decree of divorce the father is deprived of the custody of a minor child and no order is made requiring him to contribute toward his or her support, the whole duty of furnishing maintenance to the child rests on the mother.</p> <p>Id.—Omission to Provide for Support of Minor—Retention of Jurisdiction.—Under section 138 of the Civil Code, as amended in 1905, the omission to provide in a decree of divorce that the father of a minor child, whose custody is awarded to the mother, shall support the child, does not deprive the court of jurisdiction to thereafter make such a provision, as under such amendment the court has the right at any time during the minority of the child to make such an order.</p> <p>Id.—Foreign Decree of Divorce—Independent Action to Compel Support—Right of Wife.—The mother of a minor child whose custody was awarded to her in a decree of divorce granted in the state of Nevada, and which decree made no provision for the support of the child by the father, may bring an independent action in this state to compel the father to support the minor, where it is made to appear that both parties are residents of this state and the wife is without means to contribute to such support.</p>

<p>Landlord and Tenant—Covenant fob Renewal of Lease.—A covenant providing for the renewal of a lease at the option of the lessee imports the giving of a new lease; but where the option given is for an extension of the term, the lessee upon notice, if notice is required, or by remaining in possession, if no notice is required, is entitled to hold for the additional period.</p> <p>Id.—Construction of Lease Providing fob Renewal—Notice of Election—Retention of Possession—Term not Extended.—A lease of premises for one year with the privilege of renewal for a further term is not extended for the further term of two years by the writing of a letter by the lessee to the lessor on the day of the expiration of the original term expressing the desire for such a renewal, notwithstanding the lessee thereafter continued in possession, where the lessor upon receipt of such letter made reply that if the lessee would call he would fix the matter.</p> <p>Id.—Time to Renew Lease.—Where one desires to avail himself of the privilege of renewing or extending a lease he must exercise that right before the expiration of the original term.</p>

<p>Landlord and Tenant—Abandonment op Leased Premises—Reletting by Landlord—Damages.—Where a tenant abandons leased property, the owner may relet the same for his benefit and recover as damages the difference between the amount received by subletting and the amount agreed to be paid.</p> <p>Id.—Action for Damages—Sufficiency of Complaint.—In an action to recover the difference between the rent agreed to he paid under a lease and the amounts which the lessor received by subletting, the complaint sufficiently states a cause of action where it is alleged that the defendants abandoned the premises, neglected to pay any further rent, and that the lessor thereupon gave them notice that he would not release them from the lease, and if they did not reoecupy the premises within a reasonable time, he would sublet the same for them, crediting on the lease the amounts received from such subletting, followed by the allegation showing the names of the persons to whom the premises had been sublet with the amounts paid by each.</p> <p>Id.—Prior Judgment—Conclusive upon Present Action.—A judgment in a prior action between the same parties, the same subject matter being relied upon for recovery, except as to the months of the lease term, is conclusive upon the parties to the present action.</p>

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

<p>Contract—Liquidated Damages—Pleading and Evidence.—In order to entitle a defendant to retain a sum of money deposited with him as contingent liquidated damages for the breach of an obligation, it is incumbent upon him to show not only by averment but also by proof that his ease is within the exception contained in section 1671 of the Civil Code; for without an allegation bringing his case within the exception the pleading in that regard is insufficient, the presumption being, in the absence of such allegation, that such agreement is void.</p> <p>Id.—Broker’s Services—Compensation—Unauthorized Detention of Deposit as Liquidated Damages.—A real estate broker performing service in bringing persons together for the purpose of 'exchanging property is not entitled to retain as liquidated damages, upon the failure of one of the parties to carry out the transaction, a sum of money deposited with him by such parties to be paid over to the other exchanging party, notwithstanding a provision to that effect in the contract between them and the broker, where he fails to show that it is either difficult or impossible to establish the reasonable value of his services.</p>

<p>Malicious Attachment—Lack of Malice—Probable Cause—Sufficiency of Evidence.—In this action by a corporation to recover damages for the alleged wrongful and malicious acts of the defendants in procuring the seizure of certain merchandise out of the stock of merchandise of the plaintiff under a writ of attachment issued at the instance of the defendants in an action against an individual whose business had been taken over by the corporation, it is held that the evidence supports the finding that the attachment was levied without malice and that there was probable cause therefor.</p> <p>Id.-—Probable Cause—Advice of Attorney.—In addition to the proposition that the evidence was of itself sufficient to constitute probable cause, the defendants were also entitled to the benefit of the rule that where one, before instituting such a prosecution, has in good faith consulted an attorney at law of good standing, has stated to him all of the facts of the case, and has been thereupon advised by such attorney that a prosecution would lie, and such person has acted honestly upon that advice, this, of itself, constitutes probable cause.</p>

<p>Negligence—Collision op Pedestrian With Automobile—Evidence— Question op Fact.—In an action for damages for personal injuries sustained by a pedestrian from a collision with an automobile at the crossing of a city street, the question of negligence of the parties is one of fact and not of law, where it is shown that the defendant was required to suddenly change the course of his machine to the opposite side of the street in order to avoid a collision with a passing wagon, and at the same moment the plaintiff stepped off the curb into the street carrying a raised umbrella and attempted to cross.</p>

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

<p>Estates of Deceased Persons—Setting Aside of Decree of Distribution—Extrinsic Fraud.—While a distributee of an estate under an erroneous judgment may in a proper case be held as an involuntary trustee, the fraud or mistake forming the basis of that ■relation and warranting the granting of equitable relief by setting aside a decree must be extrinsic or collateral-to the matter which was tried and determined by the court, and not intrinsic.</p> <p>Td.—Degree op Distribution—Void Provision op Will—Mistake as to Validity—Setting Aside op Decree.—Where, owing to the negligent failure of the attorney for the executors of a will to apprehend the effect of section 1313 of the Civil Code, making a charitable bequest void in a case where the testator died within thirty days of the making of the will, and to the negligence of the executors who knew of such effect, but failed to read the petition for distribution before signing it, the estate was distributed according to the will, the decree of distribution will not be set aside at the suit of an heir who knew of the void provision but made no objection thereto.</p> <p>Id.—Conclusiveness op Decree op Distribution.—A decree of distribution is a judgment in rem, and, though erroneous, is as conclusive as against one who fails to appear, having opportunity to do so, .as it is against a party whose fault produced the error.</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 Second Appellate District to review an award made by the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation—Special Meeting of Directors—Insufficient Notice— Void Stock Assessment.—Under a by-law of a corporation, providing that special meetings of the board of directors may be called at the option of the president or two directors upon notice in writing being mailed at least three days prior to the day of meeting, or upon two days’ personal notice to each director, and that such service of notice shall be entered upon the minutes of the corporation, a special meeting called by four directors is illegal, where no notice, either written or oral, was served by the secretary upon the directors calling the meeting, and an assessment levied at such a meeting is void.</p>

<p>Quieting Title—Supplemental Complaint—After-acquired Title.—> In an action to quiet title, the plaintiff has no right to file a supplemental complaint showing after-acquired title, if in fact he had no title at the commencement of the action.</p> <p>Id.—Cross-complaint—Defense of After-acquired Title—Bight of Plaintiff.—Where, however, in an action to quiet title, a cross-complaint is filed after the plaintiff had acquired the title of a defendant and cross-defendant, new issues are tendered thereby and a cause of action set up relating to the date of the filing of the cross-complaint, and the after-acquired title of the plaintiff is available to him as a defense to the cross-action, and provable under his claim of ownership pleaded in his answer to the cross-complaint.</p> <p>Id.—Deed Intended as Mortgage—Becorded Declaration—Insufficient Notice.—In an action to quiet title wherein the plaintiff claimed under a deed, which was in fact intended as a mortgage, a recorded instrument containing a declaration of the grantor that the deed was intended as a mortgage was not sufficient to impart notice, where such declaration nowhere defined any instrument .affecting the title to the land in controversy.</p> <p>Id.—Defeasible Grant—Recordation to Impart Notice—Bights of' Subsequent Purchasers Without Actual Notice.—Under section 2950 of the Civil Code, providing that when a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee, or his heirs or devisees, or persons having actual notice, unless an instrument of, defeasance, duly executed and acknowledged," shall have been recorded in the office of the county recorder of the county where the property is situated, subsequent purchasers from such grantee, who are neither heirs nor persons having actual notice of the conditions affecting the deed, are not bound to search the records to ascertain whether a purported declaration of defeasance has been made.</p>

<p>The facts are stated in the opinion of the court.</p> <p>C. F. Lacey, J. A. Bardin, Andresen & Sargent, Maxwell McNutt, G. A. Daugherty, B. Y. Sargent, and Charles W. Cobb, for Appellants.</p>

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

<p>Contract — Agreement to Loan Money — Mortgage on Purchased Automobile—Defective Execution—Recovery of Money.—Where an automobile manufacturing company, desiring to make the sale of a motor truck, agreed with the plaintiff that if she would advance a certain sum of money to the proposed purchaser to enable him to make the purchase, the plaintiff should be protected by a first chattel mortgage on the truck, which she did, and the mortgage on the truck was executed informally and unacknowledged, the plaintiff had the right to refuse to accept the mortgage and to insist on the correction of its execution, and where the correction was not made, the plaintiff was entitled to recover the money advanced from the company.</p>

<p>Justice’s Court Appeal — Exception to Sufficiency of Sureties — Continuance of Justification—Jurisdiction.—A justice’s court is without jurisdiction to continue the matter of the justification of sureties on an undertaking on appeal, where the sureties appear within the statutory time and are found to he insufficient, and the superior court acquires no jurisdiction of the appeal by the acceptance by the justice on the day to which the matter was continued of a sum of money in lieu of the undertaking.</p>

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

<p>APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the First Appellate District to compel a county clerk to issue a writ of attachment.</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. W. R. Guy, Judge Presiding.</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 First Appellate District to compel a superintendent of streets to enter into a contract for street improvement.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Account—Secondary Evidence—Appeal.—Upon an appeal from a judgment in an action upon an open book account, the appellant cannot insist that there was no evidence of the account, where the accounts were in court and the plaintiff read the items therefrom in giving his testimony, or they were read to him by his attorney, and no objection was made to the method of proof.</p> <p>Id.—Account Stated—Insufficiency of Evidence.—In such an action, a statement made by the defendant to the effect that he was liable for part of the bills is insufficient to establish an account stated.</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>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District to secure the release of the petitioner from custody under an order of arrest in a civil action.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a motion to set aside judgment. John W. Shenk, 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 — Alternative Method — Preparation of Transcript from Minutes of Judge—Insufficient Record.—In the ease of an appeal taken under the alternative method, the record must contain a transcript of the evidence and proceedings prepared by the phonographic reporter, and a transcript prepared by the judge from his own minutes and certified to by him is not sufficient.</p> <p>Id.—'Defective Becord — Insufficient Bill of Exceptions.—In the case of an appeal taken under the alternative method, a transcript prepared by the judge from his own minutes cannot be regarded as a bill of exceptions prepared under the old method and defective merely in that it is not printed, although the judge certified to its correctness.</p> <p>Id.—Procedure—Motion to Affirm Judgment.—An appeal will not be dismissed because of a defective record, as the court is vested with jurisdiction of the appeal by the notice given by the appellant to the clerk of the trial court, and the procedure is to move for an affirmance of the judgment for lack of a record.</p> <p>Id. — Decree Foreclosing Trust Deed — Inconsistent Terms as to Payment of Trustee’s Fees — Power of Correction.—Where a decree foreclosing a trust deed, entered pursuant to stipulation of the parties, provides for the payment of the fees of the trustee and his attorney both from a special fund and on terms inconsistent therewith, the court may correct the decree by striking out the repugnant provisions, although more than six months had elapsed since the judgment was entered.</p>

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

<p>APPEAL from a judgment of the Superior Court of Stanislaus County, and from an order denying a new trial. W. H. Langdon, Judge.</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 Second Appellate District for the restoration to petitioner of the custody of minor children.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Redemption—Tender—Acceptance.—In making a redemption from a mortgage foreclosure, it is not necessary that the redemptioner should disclose the particular capacity in which he is acting, since the holder of the certificate of sale is obliged to accept the tender of the amount required by the statute from a party entitled to redeem in any capacity.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court'of Appeal for the Third Appellate District to compel the Superior Court to set aside an order settling a final account and decree of distribution.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Collision of Pedestrian With Automobile—Contributory Negligence—Question for Jury.—In an action for damages for personal injuries received from being struck by an automobile . driven by an employee of the defendant on the left-hand side of a city street, just as the plaintiff had stepped from the sidewalk in order to board a street-car, the question of whether the plaintiff was guilty of contributory negligence in stepping from the sidewalk in front of the automobile was one for the determination of the jury.</p> <p>Id.—Violation of Traffic Ordinance — Recovery of Damages—Instruction.—An instruction that if the employee of the defendant in the course of his employment violated the provisions of the traffic ordinance requiring the driver of a car upon the public streets to drive in a careful manner, having in view the safety of pedestrians, and requiring such a driver on all practical occasions to travel on the right-hand side of the street, and in consequence of such violation the plaintiff was injured, she is entitled to recover, is not misleading, when read with other instructions fully charging the jury on the question of contributory negligence.</p> <p>Id.—Driving of Automobile on Left Side of Street—Right of Defendant-Instruction.—An instruction that the defendant had a lawful right to have its automobile at the place where the accident happened was rightfully refused, in view of the provision of the ordinance prohibiting the stopping as well as the driving of a vehicle with its left side toward the curb of the street.</p> <p>Id.—Comparative Amount op Care—Instruction.—An instruction that while both parties are charged with the same degree of care, the amount of care exacted of a driver of a motor vehicle is far greater than the amount of care exacted of a foot passenger, is a correct statement of the law.</p> <p>Id.—Use op Public Streets—Duty op Pedestrians.—It is the duty of a pedestrian traveling in or crossing a public street of a city to use ordinary care and to reasonably exercise for his personal safety the faculties with which he is endowed by nature for self-protection; and if he fails to do so and is injured by reason of such failure, he cannot recover on account of such injury.</p>

<p>Justices’ Courts—Amendment of Becords.—A justice’s court, as well as a court of record, has the inherent power to amend its records so as to make them speak the truth with respect to the actual orders which it makes.</p> <p>Id.—Order Setting Aside Default—Omission of Terms—Power of Correction—Certiorari.—Where an order of a justice’s court setting aside a default, as entered in the clerk’s record of the court, through inadvertence failed to contain any provision for the payment of costs by the defendant as required by section 859 of the Code of Civil Procedure, the court has power to order its record to be corrected, and the finding and decision of the court that the order was inadvertently entered is conclusive upon the superior court upon the hearing of a writ of review to annul the order.</p>

<p>Mandamus—Canvass of City Consolidation Election Returns—Taxpayers.—Taxpayers of a city are beneficially interested in a proceeding to compel the board of city trustees by writ of mandate to canvass the returns of an election held therein to determine whether the city should be consolidated with another city, since the matter bears a direct relation to the question of the amount of taxes to be paid.</p> <p>Id. — Ejection Law — Rejection of Vote of Precinct—Discrepancy Between Roster and Polling List—Counting of Vote.—A board of city trustees in canvassing the returns of an election held for the purpose of determining whether the city should be consolidated with another city are not justified in throwing out the entire vote of a precinct because the number of names on the precinct roster fell short of the number of names on the polling list and number of ballots east, and mandamus will lie at the instance of taxpayers to compel the counting of the vote of the rejected precinct.</p>

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

<p>Findings—Construction.—The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment.</p> <p>Id.—Form—Reference to Complaint.—It is not necessary that the findings should be in the exact language of the pleadings, and if the complaint is sufficient, a finding by reference to it will be sufficient.</p> <p>Id.—Negligent Flooding of Land—Sufficiency of Findings.—In an action against a corporation and an individual for loss of crops from the negligent flooding of plaintiff’s land, a finding that, as against the corporation, the facts alleged in the complaint, as amended at the trial, were true, and were untrue as against the individual defendant, will be construed to mean that the corporation did, and the individual did not, negligently turn unusual quantities of water into the ditch as alleged' in the complaint.</p> <p>Id.—Judgment—One of Two Defendants.—In view of section 578 of the Code of Civil Procedure, providing that judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants, a judgment against a corporation alone sued with an individual will be upheld on appeal.</p>

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

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

<p>Public Officers—Increase of Compensation—Constables.—The provisions of section 9 of article XI of the Constitution, prohibiting an increase in the compensation of county, city, town, or municipal officers, are applicable to township constables.</p> <p>Id.—Amendment of Code Provisions—Inapplicability to Incumbents.—The amendment of 1915 to section 4281 of the Political Code increasing the compensation of certain county officers and changing the compensation of constables from fees to salary, in view of the absence of any declaration that it was intended thereby that there should be any increase in the compensation of constables, will be presumed to be intended to have a uniform operation, and not intended to apply to any of the officers therein mentioned during their current terms of office.</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>Claim and Delivery—Failure of Sureties to Justify on Redelivery Bond—Return of Property.—In an action in claim and delivery, the failure of the defendant to cause its sureties to justify on its redelivery bond amounts to an abandonment of its attempt to require the return to it of the property, and gives the plaintiff the right to have the property delivered to him by the sheriff the same as if no such undertaking had been given at all.</p> <p>Id.—Wrongful Redelivery of Property by Sheriff—Status of Defendant—Mandamus.—Where in a claim and delivery action the property is wrongfully redelivered by the sheriff to the defendant, the possession of the defendant is the sheriff’s possession, and mandamus will lie at the instance of the plaintiff to compel its redelivery to him.</p> <p>Id.—Expiration of Term of Office—Mandamus—Parties.—Where property is wrongfully redelivered by the sheriff and such officer goes out of office, his successor in office is not a necessary party defendant in a mandamus proceeding against the defendant to compel the delivery of the property to the plaintiff.</p> <p>Id.—Petition for Mandamus—Compliance With Statute.—The petition for the writ of mandate is not subject to general demurrer for insufficiency for failure to set out the contents of the affidavit, undertaking, and order which constituted the process under which the property was seized, where it is alleged that such documents were made in accordance with the provisions and requirements of the Code of Civil Procedure, and that upon receiving those documents the sheriff took the property into his possession.</p> <p>Id.—Affidavit—Return to Writ.—The return to the alternative writ of mandamus denying that the respondent was ever served with a copy of the affidavit, set forth in the petition, but that a copy of the only affidavit served on him was annexed to the return, does not charge a defect in the affidavit made by petitioner, but merely that the sheriff did not serve on him a true copy.</p>

<p>Broker’s Commissions—Individual Interest in Leasing Propertt—■ Inapplicability op Principle.—A broker employed to secure a tenant for a building in course of construction, who with a third person enters into a contract to lease the premises themselves, subject to conditions, which were never performed, is not prevented- thereby from recovering his commission for negotiating a subsequent lease with such third party and other persons, as the principle that a broker cannot recover commissions for services when his position is inconsistent with his duty as agent has no application to such a ease.</p>

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

<p>APPEAL from a judgment of the Superior Court of Mendocino County, and from an order denying a motion to set aside such judgment. J. Q. White, 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 Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Evidence—Proof of Corpus Delicti.—In a criminal action it is not necessary, in order to establish the corpus delicti, to show that the crime charged was committed by the defendant, as the two elements of corpus delicti are certain facts forming its basis and the existence of criminal agency as the cause of them.</p> <p>Id.—Confession—Voluntary Character.—The rejection of a confession is not authorized from the mere fact that the defendant is under arrest and in the custody of officers,.and that the alleged confession is made in answer to questions, if it fairly and clearly appears that the statements of the defendant were of a voluntary nature.</p> <p>Id.—Insanity of Defendant—Appearance of Defendant—Instruction.—In a prosecution for murder, where evidence was introduced to show that the mental condition of the defendant had been affected by an injury received from a kick by a horse, and the marks of the injury were pointed out on the defendant’s face, it was not error to instruct the jury that in determining the matter of his insanity, idiocy, or lunacy the jury should consider the evidence in the case and the appearance of the defendant before them since the beginning of the trial.</p>

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

<p>Deed—Insufficient Description of Property.—A written instrument affecting real property is without force either as a deed or mortgage where the property is described as “bounded on the north and east by the lands of Robinson and Bodega Avenue of the town of Sebastopol, on the east by the land of McOhristian, and on the south by Calder Avenue extended, and containing five and one-half acres,” without giving any westerly boundary, and without showing what particular lands or portions of lands of the different owners constituted the easterly boundary.</p> <p>Id.—Rule as to Description—Statute of Frauds.—To be valid on its face, a deed must contain such a description of the real property thereby intended to be conveyed as will enable the property t'o be readily located by reference to the description, and where the description is so vague and uncertain that the property cannot be identified and located therefrom, and the writing itself does' not furnish the means whereby the description may be made sufficiently definite and certain readily to locate the property, then the instrument must be held void, since the imperfections of the description cannot be supplied through evidence extrinsic to the writing itself, in view of the rule that a conveyance of real property must he in writing.</p>

<p>Criminal Law—Misconduct op District Attorney—Imputation op Manufactured Defense—Matter not Renewable on Appeal.—In a criminal prosecution, misconduct of the district attorney in his address to the jury in making remarks not warranted by the record, the plain implication of which was that defendant’s counsel had manufactured a spurious case of self-defense, cannot be inquired into on appeal, where no objection was made to the remarks at the time they were made or attention of the trial court called thereto.</p> <p>Id.—Appeal—Objectionable Remarks by District Attorney.—An objection to unwarranted remarks by the district attorney, in the course of his argument to the jury in a criminal case, where such remarks are of a character that any damaging effect thereof on the rights of the accused may be obviated by timely and proper instruction by the court to the jury that they were not at liberty to consider such remarks in their deliberations upon their verdict, will not be reviewed or considered by the appellate court unless the remarks so -complained of were objected to at the time they were made, and the power of the court to correct the abuse then invoked.</p> <p>Id.—Assault With Deadly Weapon—Guilt op Defendant—Instruction.—In a prosecution for assault with a deadly weapon under an information charging that the assault was willfully, unlawfully and feloniously committed, an instruction that, if the jury believed that the defendant “as charged in the information” committed the assault, they should find him guilty, is not unfair to the defendant as obligating the jury to find the defendant guilty notwithstanding his plea of self-defense.</p> <p>Id.—Law op Self-defense—Harmless Instruction.—In such a prosecution an instruction as to the law of self-defense awkwardly phrased and not accurately stating the law of self-defense, is harmless, where it is clear therefrom that the court intended to say to the jury that the assailant would be justified in acting on appearances, or apparent danger of losing life, or suffering great bodily injury at the hands of the assaulted party, and elsewhere in its charge submitted to the jury a full and complete statement of the law of self-defense.</p> <p>Id.—Guilt op Dependant Regardless op Conduct op Assaulted Party —Harmless Instruction.—Where the jury was correctly instructed on the law of self-defense, error in instructing them that if the defendant sought a quarrel with the assaulted party, the defendant should be found guilty regardless- of whether or not the assaulted party attempted to assault the defendant, is harmless.</p>

<p>Negligence—Explosion of Powder Magazine—Pleading—Theory of Nuisance — Evidence — Improper Construction of Magazine — "Variance.-—In. an action for damages for the destruction of property from the explosion of a powder magazine, where the complaint was drafted upon the theory that the mere keeping of a large quantity of explosive powder in a thickly populated neighborhood, irrespective of the manner in which the magazine in which it was stored was constructed was a nuisance per se, it was error to admit evidence over objection that the magazine was improperly constructed.</p> <p>Id.—Pleadings and Judgment—Variance—Reversal on Appeal.— Where the case made out by the findings is a different case from that presented by the pleadings the judgment will be reversed, for the relief decreed must be the relief sought, and the variance, even if it be such as could have been cured by -amendment, is fatal to- the validity -of the judgment, and the point may be raised on- appeal therefrom.</p> <p>Id.—Rebuttal of Plaintiff's Evidence—Objection not Waived.—In such an action, the mere fact that the defendant introduced evidence in rebuttal of plaintiff’s evidence of the improper construction of the magazine, did not estop it from claiming that there was a variance between the pleading and the proof, and that the latter was erroneously admitted,</p>

<p>Criminal Law—Failure to Support Minor—Venue—Ability op Dependant—Sufficiency of Evidence.—In this proseeution under section 270 of the Penal Code for failure to provide necessaries for the minor son of defendant, it is held the evidence sustains the finding implied from the verdict that the residence of the mother, to whom the custody of the minor had been awarded in a divorce proceeding, was in the county where the prosecution was had, and also that the evidence shows that the defendant was able to- support the minor, and that no one voluntarily undertook to- relieve Mm or the mother of any obligation to support the cMId.</p>

<p>Place of Trial—Change on Ground of Convenience of Witnesses— Time of Motion.—A motion made under subdivision 3 of section 397 of the Code of Civil Procedure for a change of the place of trial of an action on the ground of convenience of witnesses is not required to be filed at the time the defendant answers or demurs, but may be made within a reasonable time after the cause is at issue upon the facts.</p> <p>Id.—Affidavit of Merits not Essential.—An affidavit of merits is not essential to an application for a change of venue grounded upon the convenience of witnesses.</p> <p>Id.—Delay in Applications for Change of "Venue—Duty of Court.—: While applications for change of venue are generally classed as dilatory moves which should be presented and prosecuted- with diligence in order to secure favorable consideration, nevertheless the mere fact that the motion was not made until nearly a year after issue was joined on the facts does not of itself deprive the court of power to grant the motion, since, despite the delay, it is the duty of the court to determine the good faith of the motion, and then to ascertain whether or not the delay was oppressive and likely to result in detriment to the adverse party.</p> <p>Id.—Action to BLtjoin Collection of Assessment—Change of Place of Trial—Convenience of Witnesses—Proper Exercise of Discretion.—In an action wherein the plaintiffs as beneficiary members of a fraternal insurance organization sought to enjoin the collection of assessments levied under an alleged illegal by-law, an order granting a motion of change of place of trial to the county in which the defendant has it’s home office, on the ground of convenience of witnesses, is a proper exercise of discretion, where it is shown that all of the records of the defendant were kept in such office, and the counter-affidavits related solely to the production, of evidence on matters admitted by the pleadings.</p>

<p>Partition—Beport op Beferee—Values of Property—Advisory to Court.—In an action for partition the report of the referee appointed to make partition is merely advisory to the court, which is not bound to adopt the basis used by the referee for his calculation as to the values of the property involved, but may in its final decree make its own findings with respect to such matters.</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>APPEAL from a judgment of the Superior Court of Alameda County, and from an order of condemnation and order authorizing the taking of possession of condemned property. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Chapman & Trefethen, Wm. B. Bosley, Goodfellow, Eells, Moore &. Orrick, for Appellants.</p>

<p>Criminal Law—Rape — Misconduct of District Attorney — Illicit Relationship of Witness With Defendant.—In a prosecution for ■ rape, it is misconduct for the district attorney to discredit a witness called by the defendant by persistently asking her questions for the purpose of showing that the witness herself had had improper relations with the accused, where such questions are asked in bad faith and, although the foundation for impeachment is laid, no evidence of impeachment is offered.</p> <p>Id.—Evidence—Insistence of Swearing upon Crucifix.—An insistence by the district attorney that a witness should swear to the truth of her statements upon a crucifix pressed against her breast is flagrant misconduct.</p> <p>Id.—Fünishment of Defendant—Intimation upon Objection to Question.—The statement of the district attorney, upon the sustaining of an objection to a question asked the prosecuting witness as to her knowledge of what would happen if the defendant were convicted upon her testimony, that he knew what would happen if it were his daughter, is misconduct.</p> <p>Id.—Argument to Jury—Opinion of Guilt.—The statement of the district attorney in his closing argument that certain persons, including the members of the grand jury and the deputy sheriffs, heard the story of the prosecuting witness and believed it, and that he himself was of the opinion that the defendant was guilty, is misconduct.</p> <p>Id.—Good Faith of Prosecution—Improper Remark.—A remark by the district attorney that he would not prosecute a man if he did not believe him guilty, is misconduct.</p> <p>Id.—Influence of Fraternal Order and Politics.—The statement of the district attorney that he would not let fraternal orders and polities affect his prosecution of the ease, in the absence of evidence to support the intimation, is misconduct.</p> <p>Id.—Chastity of Prosecutrix—Proof by Defendant.—The statement of the district attorney that if the defendant were not guilty he could and should have discovered and shown in evidence whether or not the prosecutrix had had sexual intercourse with other persons, is misconduct.</p> <p>Id.—Disregard of Misconduct—Repeated Admonitions.—While it is ordinarily necessary to request the court to admonish t'he jury, where there is misconduct of counsel, such is not the case where the court tells the jury that it is not going to admonish them each time, but that they should not consider anything to which am objection is sustained.</p> <p>Id.—Admonition—When Insufficient.—Where in & closely balanced cáse, misconduct is repeated and persisted in, despite the warnings and admonitions of the trial court, and is so pronounced and pernicious that it is mot in human nature to forget or disregard its prejudicial effect, a mere admonition, or a number of admonitions, will not suffice to right the wrong done, and the only remedy remaining is to be found im a reversal of the judgment.</p>

<p>Fire Insurance—'Store Building and Additions Adjoining and Com-municating—Property Covered by Policy.—A fire insurance policy-under the caption “Country Store Building and Contents Policy Form,” providing for insurance on a one-story frame building and its additions, adjoining and communicating, occupied as a grocery-store, and on the stock of groceries and other merchandise contained in the described building and its additions, and granting permission for mechanics and artisans to make alterations or repairs and to build additions, covers a shed erected after the issuance of the policy within a few feet of the described building in which to store groceries, and not connected with the building otherwise than by a removable board, along which goods were passed from one building to the other.</p> <p>Id.—Construction of Policy.—The construction of an insurance policy is to be ascertained from the whole instrument, the nature of the property, the purposes for which it is ordinarily to be used, its situation, and the manner in which it is usually kept.</p>

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

<p>New Tbial—Notice op Intention—Running op Time for Filing—• Actual Knowledge op Entry op Judgment—Insufficient Notice. Under section 659 of the Code of Civil Procedure providing that notice of intention to move for new trial must be filed within ten days after notice of entry of judgment, actual knowledge of entry is not sufficient to start the time running within which notice of intention to move for a new trial must be filed, and unless facts appear of record which constitute a waiver thereof the written notice required by the section must be given.</p> <p>Id.—Stipulation Correcting Cost Bill—Notice op Entry op Judgment—Absence of Waiver.—A stipulation entered into between counsel permitting a correction to be made in the memorandum of costs and disbursements is not a waiver of the written notice of entry of judgment required by section 659 of the Code of Civil Procedure.</p> <p>Id.—Notice of Assignment op Part op Judgment—Insufficient Notice op Entry.—A notice of assignment to plaintiff’s attorney of a portion of a judgment, served on defendant, signed by plaintiff, and not by his attorney, is not sufficient notice of entry of judgment under section 659 of the Code of Civil Procedure.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the First Appellate District to compel the Superior Court to direct the answering of questions upon a deposition.</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 of the Industrial Accident Commission.</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 First Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Landlord and Tenant—Unlawful Detainer—Abatement of Rental —Nature of Agreement.—In this action in unlawful detainer, it is held that the findings are supported "by the evidence that the written agreement to repay the lessee a portion of the rent, as it was paid, on account of unsettled business conditions, was not a modification of the lease, as contended by defendant, but was a temporary agreement.</p> <p>Id.—Improvement of Premises — Indemnification of Lessee — Unavailable Defense.—An agreement by a lessor to indemnify a lessee for any loss which might accrue to him during the term as the result of Ms improvement of the demised premises cannot be availed of as a defense in an unlawful detainer action, as the loss cannot' be determined until the expiration of the term.</p>

<p>Appeal—Judgment and Order Denying New Trial—Failure to File Brief—Affirmance of Judgment.—Where on an appeal from a judgment amd order denying a new trial in a criminal action the appellant fails t'o file his brief within the allowed time and makes no request for an extension, it must be assumed that he has abandoned his appeal, and the court is authorized to affirm the judgment and order without examining into the merits of the appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. T. W. Harris, E. J. Brown, Wm. H. Waste, Wm. S. Wells, and Wm. H. Donahue, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Bape — Credibility of Witnesses — Contradictory Testimony—Question for Jury.—In. a prosecution for rape committed by the defendant on his twelve year old daughter, it is for the jury to decide whether the statements made by the prosecuting witness and her sister at the preliminary examination, which were directly contrary to their testimony given at the trial, so far impeached them as to render their testimony improbable or unbelievable, they having explained it by saying that they had been told that if their father was convicted he would be sent to the penitentiary and they to the reform school.</p> <p>Id.—Misconduct of District Attorney—Argument to Jury—Lack of Prejudice.—Misconduct of the district attorney in stating in his closing argument that in other states the defendant would have been hung, and that all that took place when defendant was brought to his office was not given in evidence, because objected to, is not prejudicial, where the remarks were objected to, and the jury instructed to disregard them.</p>

<p>Quieting Title—-Evidence—Burden of Proof.—The plaintiff in an action to quiet title must establish title in himself, and he cannot do so by relying on the weakness of defendant’s title.</p> <p>Id.—Title of Plaintiff—-Insufficiency of Evidence.—In this action to quiet title to certain lands of which the plaintiff claimed to be the owner and entitled to possession, it is held the evidence is insufficient to establish title in plaintiff to the lands in dispute.</p>

<p>Promissory Note — Conflict of Evidence — Appeal.—Where in an action on a promissory note the evidence is conflicting on the issues framed by the pleadings, the findings and judgment of the trial court will not be disturbed on appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County,- and from an order denying a new trial. H. D. Gregory, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Intoxicating Liquors — Sale in No-license Territory—Evidence—■ Bottles Purchased—Sufficiency of Identification.—in a prosecution for selling alcoholic liquor in no-lieense territory, the bottles of wine purchased of the defendant by the person employed by the officer to make the purchase were properly admitted in evidence where they were placed by the constable just as he received them in a trunk at his home and never taken therefrom except when produced before the grand jury, and the constable testified that he never changed their contents, that there were no indications of their having been tampered with, and that it appeared to him to be the same “stuff.”</p> <p>Id.—Verdict—Statement of Judge to Jury—Lack of Coercion.—In such prosecution the statement of the judge upon the return to the jury for the purpose of having certain testimony read to them, that he took the request to be a good sign that they were still working at their verdict and had not concluded that they could not agree, and that he would be in attendance until about fifteen minutes after 9, and that if they had agreed by that time, he would accept their verdict and discharge them that night, is not misconduct, as threatening the jury with a night in the juryroom unless they reached a verdict.</p>

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

<p>Deed—“Grant” op Interest in Property—Covenant Against Encumbrances not Implied.—A deed granting all of the right, title and interest of the grantors in and to the property described in the conveyance does not pass the fee, and no covenant that the property was free from encumbrances can be implied from the use of the word “grant” under section 1113 of the Civil Code, since it is only where an estate of inheritance or a fee simple is to pass that such a covenant can be implied, under the code provision.</p>

<p>Writ of Review—Judgment—Appeal.—A writ of review does not lie to review a judgment from which an appeal may be taken.</p> <p>Id.—Appeal on Questions of Law—Special Appearance.—A defendant may have the benefit of an appeal on questions of law alone, where he has appeared specially for the single purpose of objecting to the jurisdiction of the court over him as a party defendant, and where his appeal is confined to that one question.</p> <p>Id.—Demurrer—General Appearance.—The filing of a demurrer to a complaint in a justice’s court action based on the ground that the court had no jurisdiction of the subject matter of the action constitutes a general appearance, whereby the defendant submitted himself to the jurisdiction of the court.</p> <p>Id.—Judgment Denying Writ of Review—Insufficient Record on Appeal.—On an appeal from a judgment of the superior court denying an application for a writ of review of a judgment of a justice’s court, where the justice’s return to the writ is not shown in the transcript on appeal, the appellate court is without a record authorizing reversal of the judgment appealed from.</p>

<p>Landlord and Tenant—Default of Lessee—Termination of Lease by Lessor—Recovery of Deposit to Secure Rent.—In an action by a lessee to recover the amount deposited by her at the time of the execution of the lease te cover the last two months of the term, after she had made default in the payment of rent and vacated the demised premises upon demand of the lessor, the latter, upon proper pleadings and proof, has the right to recover such damages as she may have suffered by reason of the lessee’s breach of the contract.</p> <p>Id.—Retaining of Deposit as Liquidated Damages—Pleading—Finding.—In such action, where the lessor claims the right to retain such deposit as liquidated damages, it is essential that she allege facts showing the impracticability or extreme difficulty of fixing the actual damage, and where such allegation is not made, a finding to that effect is outside of the issues.</p> <p>Id.—Recovery of Deposit—Right of Lessee.—Where money has been deposited by the lessee with the lessor to secure the payment of the rent, the tenant can recover from the landlord the excess of the amount of the deposit above the damage suffered by reason of the tenant’s default, where the landlord has recovered possession by reason of such default, it being in such case presumed, in the absence of evidence to the contrary, that by reason of his recovery of possession, the landlord does not suffer on account of the nonpayment of installments of rent falling due after such recovery.</p>

<p>Inheritance Tax — Tender — Stoppage or Interest.—In view of sections 1498, 1499, and 1594 of the Civil Code, the tender to the county treasurer of the amount of an inheritance tax fixed by the court without any condition other than the delivery of a receipt for the same stops the running of interest pending an appeal taken by the state from the order fixing the amount of the tax, where the treasurer refused to receive the money except upon condition that it was received subject to the appeal.</p>

<p>Mechanic’s Lien—Abandonment of Contract—Portion of Contract Price Available for Liens.—Where a building contract providing that seventy-five per cent of the value of the labor performed and materials furnished during each month was t'o be paid on the first day of the succeeding month until final acceptance of the building, and the remaining twenty-five per cent thirty-five days after such acceptance, was abandoned before completion, the proper amount for the court to take as a basis for the calculation of the portion of the contract price available to materialmen and applicable to the satisfaction of their liens, under section 1200 of the Code of Civil Procedure, as it then existed, was the" total value of the work and materials placed on the land before abandonment, and not the amount of money which had been paid to the contractor to the date of abandonment.</p>

<p>Highway—Taking op Private Property—Pleading—Necessity.—In an action brought on behalf of a county to enforce condemnation of a strip of land for public road purposes, it is not necessary, under the amendment of 1913 to section 1241 of the Code of Civil Procedure, that it should appear by the allegations of the complaint that the board of supervisors had in a formal way by resolution declared the existence of the public necessity for the laying out of the road and the taking of the property, where it is alleged that all the steps required by section 2681 et seq., of the Political Code from the filing of a petition by freeholders, including hearing on report of viewers, and the fixing of damages by the board had been taken by the board.</p> <p>Id.—Establishment op Public Eoad—Determination op Board op Supervisors Conclusive.—The determination of the board of supervisors after compliance with the provisions of section 2681 et seq. of the Political Code to establish a public road is conclusive as to the necessity for and location of the road, and the amendment of 1913 to section 1241 of the Code of Civil Procedure has not changed the law.</p>

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

<p>Criminal Law — Change of Place of Trial — Written Application Essential.—In a criminal action a motion for a change of venue on the ground that a fair and impartial trial cannot be had in the county is properly denied where the motion is made orally, since under section 1034 of the Penal Code the application must be in writing.</p> <p>Id.—Affidavit on Motion—Essentials.—On a motion for change of place of trial of a criminal action on the ground that a fair and impartial trial cannot be had in the county, the affidavit in support of the motion must state the facts and circumstances from which the conclusion is to be deduced that such a trial cannot be had in the county, and an affidavit which merely states that the defendant firmly believes and in fact knows that it is impossible for him to secure a fair and impartial trial is insufficient.</p> <p>Id.—Alcoholic Liquors—Keeping of Place for Sale and Distribution in No-license Territory—Evidence—Prior Sales.—In a prosecution for keeping and conducting in no-license territory a place where alcoholic liquors were sold and distributed, evidence of sales made on three different days immediately preceding the date charged in the indictment is competent.</p>

<p>Criminal Law—-Conflict of Evidence—Appeal.—In a criminal action, the weight to be given to a conflict in the evidence is a question for the jury, and, in the absence of a showing of its inherent improbability and utter incredibility, the determination of the jury is conclusive upon the appellate court.</p> <p>Id.—Evidence — Relevancy — Incidental Fact.—In a criminal action, the relevancy of proffered proof depends upon whether or not it tends to sustain a legitimate hypothesis of the guilt of the defendant, and, generally speaking, an incidental fact is relative to the main fact in issue when, in accord with the ordinary course of events and common experience, the existence of the incidental fact, standing alone, or when considered in connection with other established facts, tends in some degree to make the main fact in issue certain, but it is not necessary that such incidental fact should bear directly upon the main fact in issue, for it will suffice as a pertinent piece of proof if it can be said to constitute a link in the chain of evidence.</p> <p>Id.—Murder—Explosion of Bomb—-Evidence—Incriminating Circumstances.—In a prosecution for murder caused from the explosion of a bomb, where it was the theory of the state that the explosion resulted from the discharge by a clock device of a shrapnel dynamite bomb which, concealed and carried in a suitcase, was deposited by the defendant on the sidewalk of a city street just before the explosion, it was proper to admit in evidence, as circumstances tending to show the defendant’s connection with the construction of the bomb, that a pistol loaded with certain caliber cartridges and a large quantity of loose loaded cartridges of varying caliber, many of which corresponded in caliber with the bullets found in the bodies of the “victims of the explosion, together with two automobile ball-bearings, differing, however, in size from those found at the scene of the explosion, were discovered in the room of defendant shortly after he was arrested.</p> <p>Id.—Rebuttal of Attempted Impeachment of Witness.—In such prosecution, where the defense attempted to show that the testimony of the chief witness for the prosecution was of recent fabrication, it was not error to permit the state to show that the witness shortly after the explosion had made statements to several persons in substantial accord with his testimony.</p> <p>Id.—Admitted Bias of Witness—Cross-examination Without Prejudice.—In such a prosecution, where a witness for the defense had admitted her bias and interest in the defendant and those jointly indicted with him, it is hot prejudicial error to permit the witness to be cross-examined as to such matter, where such cross-examination resulted in showing nothing more than the admitted fact.</p> <p>Id.—Acquaintanceship Between Defendants—Testimony of Officer —Lack of Prejudice.—The testimony of a police officer to the effect that on one occasion, about three years previous to the trial, he saw two of the defendants in another city shake hands and hold a conversation is without prejudice, where an acquaintanceship between such defendants ante-dating such time was admitted.</p> <p>Id.—Conviction of Defendant as an Aider and Abetter of Crime—• Instruction.—An instruction that even if the jury should find that some person other than the defendant placed the bomb, yet they should convict the defendant if they found that he aided and abetted such person, is not antagonistic to an instruction that it was the theory of the prosecution that defendant himself placed the bomb, where the evidence warranted a finding that he either placed it or aided and abetted the one who did.</p> <p>Id.—Statements of District- Attorney in Argument — Deductions from Evidence—Lack of Prejudice.—Statements made by the district attorney in his argument to the jury which upon their face purport to be his deductions from the evidence are not prejudicial, where made in good faith.</p> <p>Id.—Misconduct of District Attorney—Waiver.—Alleged misconduct of the district attorney in his argument is waived where the same is not assigned as misconduct in the trial court.</p> <p>Id.—Courage of Defendant — Comparison With Hyena — Lack of Prejudice.—The comparison of the defendant’s conduct while testifying to that of a hyena, and describing it as-the cowardliest and most disliked animal in the world, based upon the assumption that the defendant set the bomb, is not misconduct.</p> <p>Id.—New Trial—Newly Discovered Evidence—Rule.—A new trial will not be granted for newly discovered evidence where such’ evidence is cumulative and only tends to contradict some of the witnesses for the prosecution.</p> <p>Id.—Conflict of Evidence—Reasonable Doubt.—The mere fact that there is a conflict in the evidence does not establish that there are two hypotheses, one consistent with guilt and the other with innocence, so as to create a reasonable doubt.</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>Becovery of Price of Corporate Stock — Execution of Contract— Findings—Sufficiency of Evidence.—In this action by a corporation to recover the amount of the contract price of certain of its shares of stock alleged to have been contracted to be purchased by the defendant, it is held that the evidence is sufficient to support the finding that the person with whom defendant contracted was not the agent of the corporation in the execution of the contract, and that defendant was induced to execute it and to deposit certain oil stock as security for the performance of the contract in reliance upon certain representations which were positive assertions of that which was not true and not warranted by the information of the party making the representations.</p>

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

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

<p>The facts are stated in the opinion of the court,</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 Third 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>H. B. Bradford, District Attorney, J. R. Hughes, Deputy District Attorney; and Stephen P. Otis, for Petitioner.</p>

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

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

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

<p>Public Officers—Filing of Oath and Bond—Time.—The provisions of the Political Code relating to the time of filing of the oath and bond of public officers are mandatory, and the refusal or neglect of a person duly elected to an office to file his official oath or bond ■within thirty days after notice of his election or appointment vacates the office.</p> <p>Id.—Member of Board of Supervisors—Failure to Qualify Within Time After Re-election—Salary.—Where a supervisor whose term expired January 8, 1917, and who was re-elected on November 7, 1916, and given notice thereof seventeen days later, did not file his official bond until February 28, 1917, or take his oath until April 23, 1917, the office, as to the term for which he was re-elected, is vacated. He continues to hold the office solely by reason of his first election and the statute which permits and requires him to remain in office until his successor qualifies. Under this extended term, he is entitled to that salary only which is provided by law for such term.</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>Paul C. Morf, City Attorney, and John J. Earle, Deputy City Attorney, for. Appellants.</p>

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

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

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

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

<p>Criminal Law—Impaneling Jury — Peremptory Challenge—Panel not Filled.—la a criminal action, it is not error to refuse to fill the panel after a juror was excused and to require the defendant to exercise a peremptory challenge when the panel was not full, or to refuse to fill the panel after a physically disqualified person had been excused.</p> <p>Id. — Fraudulent Claim on Insurance Policy — Evidence — Demand for Production of Policy-—Constitutional Bight of Defendant not Violated.—In a prosecution for making a false affidavit and proof of loss with intent to use it in support of a fraudulent claim on an insurance policy, the constitutional right of the defendant not to be called as a witness against' himself was not violated by calling upon Mm to produce the policy, where a copy of the policy retained by the company was introduced in evidence.</p> <p>Id.-—Evidence of Loss—Measure of Indemnity—Code Provision Inapplicable.-—Section 2756 of the Civil Code fixing the measure of ■indemnity between insured and insurer in case of burning of insured property as the expense it would be to the insured to replace the thing lost has no application to a prosecution under section 549 of the Penal Code, and, therefore, the proof is not required to be addressed to the measure of indemnity to the insurer.</p> <p>Id.—Presentation of Claim—Proof Unnecessary.—In a prosecution for the second crime mentioned in section 549 of the Penal Code, the preparing, making, or subscribing of an affidavit or proof of loss with intent to present it in support of a fraudulent claim on a policy of insurance, evidence of -the presentation, of the claim is admissible, but such crime may be established without such evidence.</p> <p>Id.—Instruction as to Uncontroverted Facts—Prejudicial ERror.— In view of section 19 of article YI of the Constitution, declaring that judges shall not charge juries with respect to matters of fact, but may state the testimony and. declare the law, an instruction advising the jury as to certain fact's, of which there was evidence there was no contention, and that they should find accordingly, is prejudicial error, as the plea of not guilty put in issue every material fact.</p>

<p>Negligence—Fall from Whabf—Evidence—Question fob Jury.—In this action for the death of a person by falling into tlie water from a wharf rudely constructed with planks of uneven length and having a hole therein, it is held that the evidence is insufficient, as a matter of law, to show that the deceased knew of the condition of the wharf and was negligent in stepping into the hole or off the edge of the wharf, but that it was such to make his negligence a question for the jury.</p>

<p>Constitutional Law — Appropriation of Public Money for Peace Jubilee at Vicksburg — Valid Legislative Enactment — Gift Provision not Violated.—The act of the legislature which became effective July 31, 1917 (Stats. 1917, p. 1608), appropriating the sum of fifteen thousand dollars, to be expended by the Governor, in his discretion, for the purpose of assisting to defray the expenses of a public nature incident to the holding of the national memorial reunion and peace jubilee at Vicksburg, Mississippi, in October, 1917, is a valid enactment, and is not within the inhibition of section 31 of article TV of the Constitution, prohibiting any gift of public money to any individual or corporation, and interdicting the appropriation of public money for the purpose or benefit of any corporation or institution not under the exclusive management and control of the state as a state institution.</p> <p>Id.—Requirements of Bill Appropriating Public Money—Constitutional Provision not Contravened. — The act of the legislature which became effective July 31, 1917, appropriating public money for the purpose of assisting to defray the expenses of a public nature incident to the national memorial and peace jubilee at Vicksburg, Mississippi, in October, 1917, is not inconsistent with section 34 of article IV of the Constitution, declaring that no bill making an appropriation of money, except the general appropriation bill shall contain more than one item of appropriation, and that for a single and certain purpose to be expressed therein, because of the indefiniteness of the language of the act.</p> <p>Id.—Expenditure of Money—Discretion of Governor—Validity not Affected.—The act of the legislature which went' into effect July 31, 1917, appropriating public money for the national peace jubilee celebration at Vicksburg, Mississippi, in October, 1917, is not void because it vests the Governor with discretion in the expenditure of the money appropriated.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order granting a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jacob M. Blake, John R. Tyrrell, and Crittenden Thornton, for Appellant A. M. De Vall.</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 Joaquin County, and from an order denying a new trial. D. M. Young, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Goods Sold and Delivered—Liability of Wife—Sufficiency of Evidence—Appeal.—Where in an action for goods sold and delivered there is some evidence supporting the findings to the effect that both the defendant and her husband each ordered and each individually agreed to pay for the goods, the judgment against the wife will not be disturbed on appeal.</p>

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

<p>Claim and Delivery — Mortgaged Personal Property — Amount op Alternative Judgment.—In an action in claim and delivery to recover the possession of mortgaged personal property, the alternative. portion of the judgment in favor of the defendant who admitted plaintiff’s ownership but justified retention under the mortgage is properly for the value of the property without regard .to the amount due on the mortgage, where the only question litigated was the right to the possession of the property.</p>

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

<p>Workmen’s Compensation Act—Findino op Commission—Sufficiency of Evidence.—Upon this application for a writ of review t'o annul an award of the Industrial Accident Commission, it is held that the findings of the commission are supported by the evidence.</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 the 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>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Corporations—> Employment op Manager — Authority op Board op Directors not Divested by.—A contract of a corporation employing an individual for the period of one year to manage, take charge of, and conduct the business of the corporation along such lines as such individual might deem expedient, had not the effect of divesting the board of directors of its authority to manage and control the corporate affairs.</p> <p>Id. — Termination op Contract op Employment — Misconduct op Manager. — A corporation is warranted in rescinding a contract employing a manager and discharging Mm prior to the expiration of the contract period, where he executed a contract obligating the corporation to pay a sum of money with knowledge of a resolution of the board of directors requiring contracts to be executed by the president and manager, and when questioned concerning the execution of the contract, denied its existence.</p>

<p>Municipal Corporations—Street Improvements—Diversion op Water upon Adjoining Property Owner. — A municipal corporation by-reason of its control over streets and the power to grade and improve them has no absolute and unconditional legal right intentionally to divert the water therefrom, as a mode of protecting the streets, and to discharge it, by artificial means, in increasing quantities and with collected force and destructiveness upon the property of the adjoining owner.</p> <p>Id.—Action tor Damages—Destruction op Crops on Leased Land— Overflow op Waters prom Street Grading—Waiver op Damages ■ by Landlord—Tenant not Estopped by.—In an action against a municipal corporation for damages for the destruction of crops on leased land from surface waters collected by a system of street grading and overflowing upon the land, the fact that the lessor had waived all damages resulting from the street improvement in consideration of the granting of his petition and that of other property owners for the making of the improvement cannot be set up as a waiver as against the plaintiff, where the waiver was not set up in the answer and the city constructed the work differently from that asked for in the petition.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. William H. Waste and William H. Donahue, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Rape — Evidence — Probability op Testimony op Prosecutrix.—In a prosecution for statutory rape, the prosecutrix being under the age of consent, her evidence that she had slept in the same bed with defendant ever since she had become a member of his household, covering a .period of six years, and that the defendant’s wife consented thereto, is not too incredible to sustain a verdict of conviction.</p>

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

<p>Insurance Law—Action on Accident Policy-^Cause of Injury— Sufficiency of Evidence.—In an action to recover on an accident insurance policy, wherein the insurance company claimed that t'he unconscious condition of the insured which followed a fracture of his hip was due to an operation performed several years previous to relieve the pressure on the brain due to a former accident, rather than to the shock and 'suffering entailed from the fracture, and it was shown that since the trepanning operation he had never at any time suffered any ill-effects therefrom, and that at the time of the accident in question he was mentally and physically sound, a judgment in favor of the plaintiff is justified.</p>

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

<p>APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the enforcement of an order for payment of alimony pendente Ute.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the Second Appellate District to compel a city clerk to certify to the sufficiency of a recall petition.</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—Embezzlement by Attorney—Ownership op Money Misappropriated—Erroneous Refusal of Directed Verdict— Error Cured by Dependant’s Subsequent Testimony.—Where the money alleged to have been misappropriated by an attorney, who received it for the purpose of hiring detectives in a divorce action, was shown to have been handed to t'he accused by a third person and not by the prosecutrix, it was error for the court to refuse a directed verdict at the close of the state’s testimony, but t'he error was rendered, harmless by the defendant afterward taking the stand himself and testifying that this third person had loaned the money to the prosecutrix to pay the expenses of her case, including the employment of detectives.</p> <p>Id.—-Evidence—Erroneous Rejection op Testimony.—One of the defenses being that the money was intended to include fees for legal services in other litigations, it was error to reject expert testimony as to the' reasonableness of the defendant’s charge for those services.</p> <p>Id.—Erroneous Rejection op Testimony to Rehabilitate an Impeached Witness.—Where a stenographer employed by the defendant gave material testimony in his favor but was impeached by testimony that she had stated while on a visit to a hospital that in testifying before the grand jury she had lied for the defendant, and the defense offered to show that the impeached witness had visited the hospital only once, and then as the hearer of a cheek from the defendant to a patient in the hospital, and that this check was cashed before the grand jury met, and she was allowed to state that her visit to the hospital was before the hearing by the grand jury, ibut her testimony as to the reason for her visit to the hospital was rejected as hearsay, the rejected testimony .was relevant to fix the time of the hospital visit and its rejection was prejudicial.</p> <p>Id.—Instructions.—Although the jury was instructed in the general language of section 511 of the Penal Code, it was error to refuse to supplement this by a requested instruction that if the jury found that the prosecutrix paid the defendant the amount in question on account of fees, costs, and expenses in her divorce case, they must find the defendant not guilty.</p>

<p>Appeal—Alternative Method—Printing of Record in Brief.-—On an appeal taken under the alternative method, it is required that the appellant print enough of the record in his brief to illustrate the points made and to- enable the court to determine those points.</p> <p>Id.—Rule as to Pointing of Record.—Where an appeal is taken under the alternative method, it is impossible to lay down any rule as to just exactly what must be printed in the brief, since it depends upon the circumstances of the case; and it is not in every ease in which it is claimed that the evidence is insufficient to support the finding, or is irrelevant to the issues, that it is necessary to print the entire complaint and answer, as in many eases only a single allegation is involved in the appeal.</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 Second Appellate District to annul an order of the Superior Court dismissing a Justice’s Court appeal.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Lease—Unlawful Detainer—Construction of Provision as to Sale of Premises During Term.—A provision in a lease of farming lands that in case of a .sale before the expiration of the lease the lessee, if the purchaser wanted immediate possession, should be paid for all summer-fallow at the going price per acre, is a reservation for the benefit of the lessor; it terminates the lease and gives a purchaser the right to possession immediately upon the transfer, without necessity for demand or for payment, unless the lessee has summer-fallowed during the year preceding the sale.</p>

<p>Contracts—Parties—-Contract Taken for Benefit of Another— Trust.—One who takes a contract in his own name for the benefit of another is a trustee of an express trust and may sue in his own name.</p> <p>Id.—Assignment of Contract as Security.—An assignment of such a contract as security for repayment of money advanced creates a lien only, and does not affect the right to sue.</p>

<p>APPEAL from an order of the Superior Court of Sau Joaquin County changing place of trial. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanic’s Lien—Destruction op Building—Loss op Lien.—A mechanic’s lien fully perfected by filing the same upon the completion of the building does not attach to the land upon the subsequent destruction of the building by fire, since the lien includes the land only as an incident to the use and occupation of the building.</p> <p>Id.—Foreclosure op Lien—Joint Personal Judgment—Evidence.— In an action to foreclose a mechanic’s lien, a joint personal judgment against two defendants must ¡be reversed as to both, where there is no evidence to show the personal liability of one of the defendants.</p>

<p>Negligence—Personal Injuries.—Order denying a new trial affirmed on t'he authority of Kerner v. S-pieglj ante, p. 162.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Edward P. Shortall, Judge.</p> <p>The facts are similar to those stated in Southern Pacific Co. v. Dore et al., ante, p. 521, [168 Pac. 147].</p>

<p>Criminal Law—Grand Jury—Competency of Women.—Judgment and order denying new trial reversed on the authority of People v. Bensen, ante, p. 336.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis D. Wilbur, Judge.</p> <p>The facts are similar to those stated in Beecham v. Burns, ante, p. 754, [168 Pac. 1058].</p>