Volume 35 — California Appellate Reports

<p>Appeal—Judgment—Statement of Judge in Oral Decision—Record. On an appeal from a judgment, a statement of facts made by the trial judge in rendering his oral decision, although printed in the appellant’s brief, cannot he treated as forming any part of the record, nor used to supply findings or to influence the judgment in any way.</p> <p>Id.—Findings to Support Judgment — Presumption. — On an appeal from a judgment the appellate court must presume that the trial judge found every fact warranted1 by the evidence which is necessary to support the judgment.</p> <p>Id.—Recovery of Money Disbursed by Attorney—Knowledge of Defendant—Evidence.—In this action by an attorney acting as a disbursing agent of certain funds, and who claimed that he made the payment in question out' of his own funds with the knowledge and acquiescence of the president of the corporation defendant, it is held the evidence was sufficient to. warrant a finding that such president had no knowledge of the payment until suit was brought.</p>

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

<p>Deceiver—Purchases eor Corporation—Nonliability op Creditors as -Sureties on Bond.—Creditors of a corporation in becoming sureties on the bond of the receiver of the corporation are not rendered personally liable for purchases made by the receiver in the conduct of the business of the corporation, with which they had nothing to do, on the theory that the receiver was their agent and acting for the benefit of all the creditors.</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APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Third Appellate District to annul an award of the Industrial Accident Commission.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>The facts are stated in the opinion of the court.</p>

<p>Divorce—Extreme Cruelty—Division of Community Property.— Where divorce is granted for extreme cruelty, the general rule is that more than one-half the community property should be awarded to the innocent spouse.</p> <p>Id.—Custody of Minor Children—Discretion of Trial Court.—Best interests of children are to be considered, and action of the trial court will not be set aside unless there has been a clear abuse of discretion.</p>

<p>APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to annul an award of the Industrial Accident Commission.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>Albert Lee Stephens, City Attorney, W. D. Spalding, and Wm. P. Mealey, Deputy City Attorneys, for Petitioner.</p>

<p>Workmen’s Compensation Act—Injury to Road Construction Foreman—Assault by Discharged Laborer—Injury Arising Out op and in Course op Employment.—An injury received by a road construction foreman from a blow delivered by a discharged laborer is an injury arising out of, and in the course of, his employment under the Workmen’s Compensation Act, since it occurred while ho was engaged in doing work within the scope of his employment, and at a time and place when and where it was his duty to perform it, and it arose out of his employment .because it followed as a natural incident of the work occasioned by the nature of the employment and performance of the duty which it imposed upon him as such foreman.</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>Stipulation—Apportionment op Recoveries in Attachment Actions —Failure op Judgment Creditor to Docket Judgment—Right to Share in Proceeds op Sale op Docketed Judgment.—Where the attorneys for the respective plaintiffs in two different attachment actions against the same defendant enter into a stipulation providing that all recoveries or avails effected in either action shall be ratably apportioned between the plaintiffs according to the respective amounts of their claims or according to the respective amounts of the judgments rendered and entered in said actions, there is no implied duty that either party should docket the judgment obtained by him in the county where the property is situated so as to acquire a lien thereon; and where one of the parties does so docket his judgment and thus becomes a redemptioner, and the other party fails to so docket his judgment, and a third judgment creditor purchases the first judgment, the failure of the second judgment creditor t'o so docket Ms judgment is not such a breach of the stipulation as to destroy his right to share in the amount paid for the first judgment.</p>

<p>Action for Death—Assault as Cause—Conflict of Evidence—Verdict not Disturbed.—The record disclosing a substantial conflict in the evidence as to whether the defendant struck the deceased without cause or not in necessary self-defense, and also as to whither death was caused by the blows alleged to have been, struck, the verdict awarding damages cannot be disturbed on appeal.</p> <p>Id.—Statute of Limitations—Time for Commencement of Action.— The time for bringing an action of this character begins to run from the time of the death of the injured person, and not from the time the injury causing his death was inflicted upon him.</p> <p>Id.—Eight of Action of Heibs—Failure of Deceased to Sue.—The right of heirs and representatives to sue under section 377 of the Code of Civil Procedure is not affected or -barred by the failure of the deceased to sue in his lifetime.</p> <p>Id.—Evidence—Inadmissibility of Declarations of Deceased.—The right of action given to heirs or personal representatives by section 377 of the Code of Civil Procedure is a new right of action distinct from that which accrued to the injured person as a result of the defendant’s wrongdoing, and therefore declarations of the deceased to the effect that he was not' struck or injured by the defendant are inadmissible, and objections to evidence of such declarations as hearsay are properly sustained.</p> <p>Id.—General Eeputation for Peace and Quiet.—Testimony as to the general reputation of a person should be based upon the result of the knowledge of the witness of such general reputation and not' upon specific acts tending to show a good or -bad character which have come under the personal observation of the witness.</p> <p>Id.—Instructions—Burden of Proof—Justification for Assault as a Defense.—The jury were properly instructed to the effect that there is no legal presumption that a bodily injury is justifiable, and the justification therefor, if any, must be proven by him who asserts it.</p> <p>Id.—Cause of Death—Pneumonia Concurring With Injuries.—It is not the law that, to hold a wrongdoer for his tortious act whereby he produces damage to, or the death of another, such act must be the sole proximate cause of the injury or death, and therefore an instruction that if the jpry believed from the evidence that after the assault and prior to his death the deceased contracted pneumonia, and that cerebral meningitis, as a result of the assault, “proximately concurred with said -pneumonia in causing his death, and that said death would not have occurred at said time from pneumonia alone,” the verdict must be in favor of the plaintiff, correctly states the law.</p>

<p>Criminal Law—Bail Bond—Description op Offense.—“Grand larceny” is a sufficient description in a bail bond of the offense where the information charged stealing, taking, and carrying away from the person.</p> <p>Id.—Sufficiency of Execution of Bond.—A certificate of acknowledgment is not necessary to the validity of the bond.</p> <p>Id.—Action on Bail Bond—Defense—Information Charging Different Offense.—The fact that the information charges an offense different from that for which an accused person is held is not a defense to an action on the bond given to secure his appearance.</p>

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

<p>APPEAL from an order of the Superior Court of Sierra County changing the place of trial. Stanley A. Smith, Judge.</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 direct a county clerk to file, number, and index a petition for probate of will.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Workmen’s Compensation Act—Injury to Night Watchman—Unwarranted Use op Circular Saw.—Under the Workmen's Compensation Act, an award of compensation to a night watchman for an injury sustained while using a circular saw for the purpose of making a board of suitable length to barricade a door must be annulled, for even assuming that it was within the scope of his employment to see that the doors of the premises were properly secured by locking, the resort to the use of the saw was entirely beyond the scope of his employment.</p>

<p>APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the First Appellate District to compel the dismissal of an action.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of El Dorado County, and from an order denying a new trial. N. D. Arnot, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>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>Workmen’s Compensation Act—Affirmance of Award—Evidence.— An award- of compensation to an employee of a manufacturing establishment must be affirmed where the record on petition for a writ of review shows that the finding of the commission is sustained by the law and the evidence adduced at the hearing.</p>

<p>Workmen’s Compensation Act—Finding of Commission—Evidence— Affirmance of Award.-—An award of the Industrial Accident Commission must be affirmed where there is evidence sustaining the finding that the claim of the applicant is covered by the policy of insurance.</p>

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

<p>Vendor and Vendee — Recovery of Intermediate Installment Payment—PLeading—Tender of Deed.-—In an action for the recovery of an intermediate payment due upon a contract for the sale of real property, it is not' essential to the statement of the cause of action that the complaint contain an allegation of tender of deed prior. to the commencement of the action, where the contract is set forth in full and it is shown therefrom that the sum sued for and interest was due on the contract prior to suit and that the same was unpaid.</p> <p>Id.—Striking Out Parts of Answer — Judgment on Pleadings.— Where after the granting of a motion to strike out parts of an answer no sufficient averments remain amounting to a denial of the plaintiff’s cause of action, or a defense thereto, the granting of a motion for judgment on the pleadings is not erroneous.</p>

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

<p>Statute of Limitations — Action on Bond of Notary Public.—An yaction against the surety on the bond of a notary public for damages sustained through reliance upon a false certificate of acknowledgment is barred in three years from the date of the acknowledgment, as section 338, subdivision 1, of the Code of Civil Procedure is applicable to such an action.</p>

<p>Workmen’s 'Compensation Act—Filing op Application por Compensation — Insuppicient Authority — Unauthenticated Letter.— Am unauthenticated letter written by the father of an employee killed in the course of his employment to a third person not related to the parties, purporting to authorize the latter to apply for adjustment of the claim for compensation to the Industrial Accident Commission, is not sufficient legal authority to initiate the proceedings.</p> <p>Id.—Dependency op Applicant — Unwarranted Finding — Hearsay Evidence.—A finding of the Industrial Accident Commission that a deceased son contributed to his father’s support by sending money to him in a foreign country is unwarranted where the finding is ibased solely upon the testimony of the person- with whom the deceased had deposited money that from time to time the deceased requested an advancement of money, saying that he wanted it' to send home.</p> <p>Id.—Reimbursement por Funeral Expenses — Absence op Application—Commission Without Jurisdiction.—The Industrial Accident Commission, in the absence of an application for reimbursement, has no jurisdiction to make an allowance to a third person for money paid for burial expenses of a deceased employee.</p>

<p>Negligence—Personal Injuries—Taxicabs—Dangerous Boute—New Trial—Discretion op Court.—The discretion of the trial court in granting a new trial to the plaintiff in an action for damages sustained while traveling as a passenger in a taxicab of the defendant, should not' be interfered with when it appears that the route taken by the driver was a dangerous one and there were other routes available.</p>

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

<p>New Trial—Discretion—Appeal.—An order granting a new trial is largely a matter of discretion, and where the evidence is sharply conflicting, the exercise of the discretion will not be interfered with on appeal.</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. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Wm. F. Rose, and Bruce Glidden, for Appellant.</p> <p>Harding & Monroe, for Respondents.</p>

<p>Mining Corporations—Posting Monthly Balance Sheet—Corporation Conducting Mining Operations Outside the State.—Section 588 of the Civil Code, requiring directors to post monthly balance sheets, applies to a mining corporation operating mines outside the state but' having its principal place of business within the state.</p> <p>Id.—Action by Stockholder — Damages Recoverable.—In an action under section 599 of the Civil Code by a -stockholder against di- ■ rectors of a mining corporation for failure to post monthly balance sheets as required by section 588 of the Civil Code, the damages recoverable may include the expense of an investigation to obtain the information which ought to have been posted;</p>

<p>Agency—Beauty Broker—Statute or Frauds.—An unwritten agreement authorizing or employing an agent or a broker to purchase or sell real estate is void under section 1624 of the Civil Code.</p> <p>Id.—Pleading—Words and Phrases—“Middleman.”—An allegation that a real estate broker was a “middleman” and not an agent does not affect the contention that an agreement employing a broker is void when not in writing.</p> <p>Id.—Severable Contract—Beal and Personal Property.—Where a broker’s contract relates to both real and personal property, the statute of frauds is not applicable so far as the personal property is concerned.</p> <p>Id.—Promise to Answer for Default of Another.—Where, after a broker employed by the owner of property to procure a purchaser had obtained a prospective purchaser, the broker’s contract with the owner was rescinded by mutual consent and thereupon the prospective purchaser promised the broker to pay him a certain commission in consideration of obtaining the property at a lower price, there was no necessary connection between this contract and the one with the owner, and it was not a promise to answer for the default of the owner.</p> <p>Id.—Pleadings—Demurrer—Improper Joinder of Causes of Action.— A complaint which unites a cause of action for a commission growing out of the transfer of real property with another for a commission growing out of the transfer of personal property is demurrable under subdivision 5 of section 430 of the Code of Civil Procedure.</p> <p>Id.—Void Contract—Want of Consideration.—It is held in this ease from the facts as stated in the complaint that the alleged contract by a purchaser to pay a broker a commission on the purchase of personal property was void for want of consideration.</p>

<p>Criminal Daw—False Pretenses.—The evidence in this ease is held to be sufficient to sustain the charge of false representations as to ownership of property sold by defendant.</p> <p>Id.—Sufficiency of Information —Character of Money Obtained.— An information charging the obtaining by false pretenses of the sum of six hundred dollars is sufficient without stating that such sum was “lawful money” or current coin of the United States.</p>

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

<p>Statutory Construction—Interpretation op Words.—The words of a statute must be interpreted according to their common acceptation, and where a word: having a technical as well as a popular meaning is used in a statute, the courts will accord to it its popular signification.</p> <p>Dismissal op Action—Failure to Bring to “Trial”—-Construction op Section 583, Code op Civil Procedure.—As used in section 583 of the Code of Civil Procedure, providing for the dismissal of an action not brought to trial within five years after answer.filed, the word “trial” has reference to the hearing and determination of the issues of fact, and not of law.</p> <p>Ib.—Expiration op Statutory Period—Absence op Written Stipulation Extending Time—Action Properly Dismissed.—Under section 583 of the Code of Civil Procedure, providing that an action shall be dismissed unless brought to trial within five years after the filing of the answer, except’ where the parties have stipulated in writing that .the time may be extended, an action is not brought to- trial by the filing and hearing of á demurrer to the answer, and where' more than six years had elapsed from the filing of the answer and; no written stipulation extending time had been entered into, the action was properly dismissed, notwithstanding plaintiff’s attorney was relying on an alleged oral understanding that the trial might be taken up at the pleasure of plaintiff’s attorney.</p>

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

<p>Newspaper—General Circulation—Section 4460, Political Code.— Under section 4460 of the Political Code, defining a newspaper of general circulation to be one established, printed, and published at regular intervals, in the state, county, city, city and county, or town, where such publication is made, for at least one year preceding the date of such publication, a newspaper printed in the city where such paper was circulated and to which it was local, for the one year period with the exception of seven of the weekly issues, which were printed elsewhere for lack of a newspaper plant, is a newspaper of general circulation.</p> <p>Id.—Changing op Name—Character op Newspaper not Appected.— The changing of the name of the newspaper during the one year period by the dropping of a part of the wording in the name does not change the character of the paper nor destroy its identity.</p>

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

<p>Writ op Review—Remedy by Appeal.—The writ of review does not lie when the petitioner has a right of appeal from the order which he seeks to have reviewed.</p> <p>Id.—Execution—Sale op Property Without Indemnity Bond—Order upon Show 'Cause Proceedings — Remedy by Appeal. — Where a sheriff refuses to make a sale of property under execution until furnished with an indemnity bond by reason of the service upon him of a written claim under section 689 of the Code of Civil Procedure, and he is thereafter ordered upon show cause proceedings to make the sale without the bond; his remedy is by appeal from the order, and not by writ of review, the order having, as to him, the effect of a judgment.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for- Appellant.</p>

<p>Sales—Manufacture of Machinery for Specific Purpose—Warranty—Waiver of Objection.—Where a purchaser of appliances manufactured for use in canning fruit uses them during the canning season and makes no objection to their fitness until sued for the contract price, such objection comes too late.</p> <p>Id.—Action for Price—Counterclaim—Damages for Inability to Use Remainder of Plant—Evidence.—In an action to recover the price of machinery and appliances manufactured for use for a specific purpose, damages by way of counterclaim for loss sustained by the purchaser through inability to use the remainder of defendant’s manufacturing plant to its full capacity were too remote, and evidence to show such damage was properly excluded.</p> <p>Id.—Instructions—Meaning op Technical Terms.—The court had the right to instruct the jury as to the meaning of the words “perfectly constructed mechanically,” those words having a technical meaning, and the court having left it to the jury to determine whether certain appliances in question were j so constructed.</p> <p>Corporations—Assignment op Cause op Action.—An assignment, for collection, of a cause of action was properly executed by the president under the corporate seal, without action by the board of directors when that was the business custom of the corporation. ' Trial—Instructions in Accordance With Theory op Case—Rescission.—An instruction as to what will authorize a rescission is not prejudicial when a case is tried upon the theory of a rescission, although the issue of rescission is not raised by the pleadings."</p>

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

<p>Agency—Unauthorized Sale by Agent—Ratification—Acceptance of Benefits by Principal—No Ratification When Actual Facts not Disclosed.—Where an agent, authorized to sell an automobile for eight hundred dollars cash, and not to make delivery until purchase price was fully paid, sold for fifty dollars and a secondhand car, but remitted to the principal four hundred dollars, and falsely reported that he had sold for four hundred dollars and a used car, which he would shortly sell for four hundred dollars, and the principal retained the four hundred dollars and replied that, while not entirely satisfied, he would accept the tranáaetion provided the agent would himself pay the remaining four hundred dollars within, thirty days and comply with certain other conditions, the principal, on discovering the facts, was entitled to maintain against the vendee, to whom the car had been delivered, an action to recover its possession, with damages for its depreciation and detention.</p>

<p>Criminal Law—Cohabitation and Adultery—Relationship op Parties—-Evidence—Death Certificate op Child.—In a prosecution for cohabitation and adultery -as defined by section 269a of the Penal Code, a certified copy of the certificate of the death of the woman’s child filed as required by the Vital Statistics Act, wherein the defendant admitted that his residence -and that of the woman was the same, and that he was the father of t'he child, is admissible as a fact tending to prove that at the time of the signing of the certificate he was living with the woman as her husband, and not merely as a boarder, as they both contended.</p>

<p>Brokers—Sale of Beal Estate—Statute of Frauds—Action for Commission.—To entitle a broker to commission, he must show written authority and also that he had either accomplished the sale or produced a purchaser ready, willing, and able to purchase.</p> <p>Id.—Sale by Owners.—Under the facts in this case it is held that the broker was not entitled to recover.</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>Bed Light Abatement Act—Bights op Property ’Owner—Constitutional Law.—The red light abatement act (Stats. 1913, pp. 20, .22) declaring all buildings and places nuisances wherein or in which act's of lewdness, assignation, or prostitution are held to occur, or which are used for such purposes, and providing for the abatement and prevention of such nuisances by injunction or otherwise, does not violate the fourteenth amendment to the federal constitution, by depriving a person of Ms property in consequence of misdemeanors committed thereon without his knowledge, connivance, or consent, since every owner of property who leases it or puts another in possession of it owes the public a certain degree of diligence, and proof of the general reputation of the place is sufficient to impute knowledge to him, and furthermore the act does not undertake to provide for a judgment abating the nuisance otherwise than as against persons who are properly joined as defendants in the action, and brought in. by proper process.</p> <p>Nuisance — Abatement—Lack op Actual Knowledge by Property Owner—Forfeitures.—The suppression of a nuisance is essentially a proceeding in 'rem, operating upon the property used in the maintenance of the nuisance, and while the owner having no actual knowledge of the character of the business carried on in his building might personally be bound for the costs, the building and furniture may nevertheless be proceeded against and subjected to the forfeitures prescribed by the statute.</p> <p>Abatement Act—Closing op Building por One Year.—The provision of the red light abatement law permitting the building to be closed and kept closed against its use for any purpose for one year unless sooner released in the manner provided by law is not unconstitutional and invalid, as being unduly harsh, unreasonable, and oppressive, and in effect a penalty.</p> <p>Id.—Contempt—Unnecessary Provision.—The provision of section 6 of the abatement act in regard to punishment for contempt is not a necessary or inseparable part of the act, and may be eliminated therefrom and the remainder of the statute treated as valid.</p> <p>Id.—Action by Private Citizen—Validity op Act.—The abatement act is not objectionable as special legislation in providing for and permitting the institution and maintenance o£ the action by an individual citizen without a showing that he is especially damaged, since a multiplicity of suits is thereby prevented, and the same being a matter of legislative discretion not reviewable by the courts. Id.—Act not in Nature of Bill of Attainder.—The abatement law is not in the nature of a bill of attainder, since the object' of the law is not to punish, but to effect a reformation of the property, and for the further reason that there is no forfeiture of property. Constitutional Law — Pólice Power.—The fourteenth amendment to the federal constitution does not affect or in any manner curtail the police power of the state, and all owners hold their property subject to such police power and to such reasonable conditions as may be deemed by the governing authority essential to the public safety, comfort, and health.</p>

<p>APPEAL from a judgment of the Superior Court of Siskiyou County, and from an order denying a new trial. James F. Lodge, 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 Tulare County, and from an order denying a new trial. J. A. Allen, 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>Evidence'—Leading Questions—DiscRETioN.^The court may in its discretion allow leading questions to be addressed to a witness, but the privilege should not be arbitrarily granted to one side and denied to the other.</p> <p>Criminal Law—Murder—Evidence—Movements of Defendant After Homicide.—In the prosecution of a Chinese for murder, it is not improper to permit the district attorney to show that the defendant after the homicide went toward the headquarters of a certain t'ong society, since the inquiry related to a circumstance that might be legitimately construed as an effort of concealment, or as indicating the connection of the tong with the killing, thus furnishing a motive for the crime.</p> <p>Id.—Comment op Court, upon Impeaching Question—Lack of Prejudice.—'In such a trial, the remark by the court in ruling upon an objection raised to an impeaching question asked of a witness for the state that it could not see any conflict in the statement read to the witness and his testimony is not an invasion of the province of the jury.</p> <p>Id.—Explanation of Testimony—Eight of Witness.—In such a trial, it was not error to permit an officer who testified that on the night of the shooting he saw near the scene of the homicide a certain person, upon his attention being called to his testimony at the preliminary examination wherein he stated that he did not see such person at that time, to explain on redirect examination his former testimony by stating that he did not talk to such person that night. Id.—Self-defense—Evidence—Belief of Defendant.—In such a trial, where one important element in the theory of the defense was that defendant believed his life was in danger, it was proper for him to testify whether he believed he was in danger of death or great bodily harm.</p> <p>Id.—Cross-examination of Witness—Conduct of District Attorney —Dack op Prejudice.—In such an action, where the district attorney had cause to believe a witness was not telling the truth, he had the right to use every legal means within Ms power to vindicate Ms belief, and his examination, though unduly prolonged and unnecessarily persistent as to unimportant circumstances, was not prejudicial, as tending to discredit the witness.</p> <p>Id.—Age of Defendant — Conduct of District Attorney Without Prejudice.—In such a trial, where defendant testified in chief that he was eighteen years old, the district attorney was not guilty of misconduct in seeking to compel an admission that the defendant was twenty-eight years old, or in questioning him concerning his identification papers.</p>

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

<p>Appeal—Alternative Method—Record not Printed in Brief—Affirmance of Appeal.—An order granting a motion to set aside a judgment and granting permission to file an amended complaint must be affirmed on appeal, where there is no record other than a typewritten transcript prepared; in accordance with section 953a of the Code of Civil Procedure, and the brief of appellant contains none of the evidence and no part of the record as required by, section 953c of such code.</p>

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

<p>Criminal Law—Information—Power of District Attorney.—In drawing an information the district attorney has no authority to charge the defendant with a different offense from that charged in the complaint upon which he was examined and held to answer by the committing magistrate.</p> <p>Id.—Burglary — Intent — Separate Counts — Setting Aside of Information as to Single Count.—A motion to dismiss an information which in three count's charged the defendant with the commission of the crime of burglary, the several counts referring to the same acts, but differing only in the intent with which they were done, may be set aside as to one of such counts, without setting aside the entire information, where the motion is based on the ground that the defendant had never legally been committed by a magistrate on the charge set forth in such count.</p> <p>Id.—Variance Between Complaint and Information.—An information charging a burglarious entry with intent to commit rape does not describe the same offense as a complaint before a committing magistrate which omits such statement and charges such am entry with intent to steal and murder.</p>

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

<p>Criminal Law—Common Barratry—Jurisdiction—Justices’ Courts. The crime of common barratry, by reason of the nature and extent of the punishment prescribed therefor, is what may be and often is termed, in contradistinction to indictable misdemeanors, a simple misdemeanor, of which justices’ courts have general jurisdiction. Justice of PIeace—Issuing of Warrant upon Defective Complaint— Lack of Bad Faith—Nonliability for Damages for False Imprisonment.—A justice of peace is not liable for damages for false imprisonment in issuing a warrant for and causing the arrest of an attorney at law upon a complaint filed with him which attempted to charge, but was wholly insufficient to charge, the attorney with the crime of common barratry, in the absence of any claim that the justice was actuated by malice or corrupt motives, his action being based upon an erroneous determination as to the sufficiency of the complaint.</p>

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

<p>Trial—Refusal of Continuance—Discretion not Abused.—The refusal to grant a continuance of the time of trial of an action is not an abuse of discretion, in the absence of any affidavit or other showing than that which was presented by the person, applying for the continuance, who was not the attorney of record, and who merely made his statement in court asking for a continuance on the ground of the illness of the attorney of record in the ease.</p> <p>Id.—Bringing Action to Trial Within Five Tears — Statutory Duty When Performed.—While it is the duty of the plaintiff, under section 583 of the Code of Civil Procedure, to bring the cause on for trial within five years after it is at issue, under penalty of having it dismissed for a failure to do so, he has fully performed his duty to the court when he has moved the case upon the cal- z endar and caused it to be set for trial, and is in court and ready to proceed at the appointed time; and thereafter he is not in default if the case is not actually tried within the five years after issue joined:</p>

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

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

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

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

<p>Appeal—Lack op Good Faith—Penalty.—An appeal from a judgment in an action for conversion, for insufficiency of the evidence to sustain certain findings, cannot be regarded as having been made in good faith, and is a proper ease for the imposition of a penalty for the taking of a frivolous appeal, where reversal is asked merely because of a claimed preponderance of the evidence in favor of the appellant, although the findings are directly and substantially supported by other evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Thos. C. Denny, 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>Negligence — Injury to Customer of Merchant — Fall Through Elevator Hole—Status of Customer.—A merchant who directs a customer to the rear of his store for the purpose of looking at an article offered for sale is liable in damages for personal injuries sustained by the customer in stepping into and falling through an elevator hole in the floor, without fault or negligence on the part of the customer, since such customer was not a mere licensee, and it being the duty of the merchant to use all reasonable means to make that part of the store safe for one visiting it.</p> <p>Id.—Verdict—Quotient Method—Verdict not by “Chance.”—A verdict is not one arrived at by chance within the meaning of section 657 of the Code of Civil Procedure, where the jurors disagreeing as to the amount, agreed to divide tho sum of the various amounts Which each juror believed to be proper by the number of the jurors, without agreeing to be bound by t'he result, and after considering the quotient adopted it as the verdict.</p>

<p>Sheriff — Belease of Attachment — Lack of Written Authorization—Liability for Judgment—Construction of Section 4166, Political Code.—Under section 4166 of the Political Code, which provides that no direction or authority by a party or his attorney to a sheriff, in respect to the execution of process or return thereof, or to any act or omission relating thereto, is available to discharge or excuse the sheriff from a liability for neglect or misconduct, unless it is contained in a writing, signed by the attorney of the party, or by the party, if he has no attorney, a sheriff who levied a writ of attachment upon certain real estate, and • thereafter released such attachment without obtaining the written consent of the attaching party, and placed the attachment upon money in escrow payable to the defendant, in consequence of which plaintiff’s judgment was not satisfied, is liable to the plaintiff for the amount of his judgment.</p>

<p>Election Law—Compensation of Officers.—In view of t'he provisions of section 1072 of the Political Code, election officers cannot recover more than ten dollars for services at an election, even though the precincts contained more than two hundred votes in violation of section 1127 of such code, and the services covered four days and nights.</p> <p>Id.—Services of Election Officers—Injuries from Loss of Sleep— Absence from Business — Claims not Assignable.—Claims of election officers for having to work for four days and nights without sleep, resulting in mental and physical fatigue, and absence from business, are strictly personal, and not subject to assignment.</p>

<p>Corporation Law—Becovery on Unpaid Stock Subscription—Pleading—Insufficient Complaint.—In an action for an unpaid subscription to the capital stock of a corporation, the complaint fails to state a cause of action where there is no allegation that the plaintiff had followed and exhausted the procedure laid down in section 331 et seq. of the Civil Code.</p> <p>Id.—Collection of Stock Subscriptions—Procedure.-—In this state, where the contract of subscription for stock is silent as to the time and manner of payment, calls for unpaid subscriptions are placed in the same class with assessments upon paid-up shares, and the provisions of section 331 et seq. of the Civil Code provide a complete scheme for the making of collections of each of the two kinds of obligations.</p>

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

<p>Costs—Prosecution or Action in Forma Pauperis.—The plaintiff in a civil action may prosecute his action in forma pmiperis by filing a proper affidavit.</p> <p>Id.—Mandamus—Moot Question—Dismissal.—A petition for a writ of mandate to compel a superior court to permit a plaintiff in a civil action to prosecute the same in forma pauperis will be dismissed where after the filing of the petition the permission was granted, the matter becoming a moot question.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Third Appellate District to compel a county school superintendent to draw her requisition on the county auditor for the salary of an optometrist employed by a city board of education.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fraternal Insurance Act — Change of Beneficiary — Constitutional Law.—The Fraternal Act of 1911, limiting the class of persons who may be named as beneficiaries under insurance policies issued by fraternal benefit societies, does not violate the sections of the state and federal constitutions providing that the legislature shall pass no laws impairing the obligations of a contract, in restricting the right of a member of such society, whose policy was issued prior to the time the statute went into effect, to change his beneficiary after such time contrary to and in contravention of the terms of the statute.</p>

<p>Insanity Law—Commitment fob Excessive Use of Drugs — Discharge—Habeas Corpus.—A person committed under section 2185c of the Political Code to a hospital for the insane for excessive use of narcotics and drugs, who claims to have ■ recovered from her malady, and who is refused a discharge by the superintendent of the hospital, is entitled to have the question of her recovery determined by a writ of habeas corpus, since the provisions of section 2189 of such code providing for the discharge of persons from insane hospitals do not cover such a case.</p>

Habeas Corpus—Voluntary Submission to Imprisonment—Dismissal.—A petition for a writ of habeas corpus will be dismissed where the petitioner voluntarily submitted to imprisonment from which he seeks to be discharged for the purpose of presenting in t'he proceeding the question as to the validity of an order holding him to answer for trial in the superior court, The facts are stated in the opinion of the court.

<p>Action on Note — Death of P'ayee — Payment — Evidence.—Tv an action for the balance due on a promissory note and t'o foreclose a chattel mortgage given to secure the payment of the same, defendant’s testimony as to a payment on the note before the payee’s death was not objectionable as a self-serving declaration under sections 1850-1853 and 1870 of the Code of Civil Procedure, nor was it inadmissible under section 1880, subdivision 3, prohibiting testimony of parties to actions against executors on a claim against the estate of a deceased person.</p> <p>Id.—Other Indebtedness of Defendant to Payee—Evidence—Testimony of Plaintiff.—In an action for the balance due on a note, where the defendant had made payments thereon prior to the payee’s death, and had testified that the note represented his only indebtedness to the payee, it was proper rebuttal to ask plaintiff what he knew of other indebtedness from the defendant to the payee, the plaintiff claiming the payments were on other indebtedness.</p>

<p>Cbiminal Law—Embezzlement—Evidence—Intent—Finding op Juby Conclusive.—In a prosecution for embezzlement, the jury is not bound to believe the testimony of the defendant as to his intent to steal the property at the time he rented the property, and where there is sufficient evidence to justify a finding that his intention to embezzle was formed after the property came into his possession as a bailee, the finding of the jury is conclusive.</p> <p>Id.—Credibility op Dependant — Instruction.—An instruction that when the defendant in a criminal action testifies as a witness, his credibility is subject to the same test as that applicable to other witnesses, and that in determining the credibility of any witness, the jury has the right to consider interest in the result, demeanor, contradiction by other witnesses,, and disregard of testimony if false as to any material fact, is not prejudicial, in view of section 4% of article VI of the constitution.</p> <p>Id.—Consequences of Verdict—Instruction.—An instruction that the jury in arriving at their verdict should not be guided by the consequences to ensue, but that they were to determine the guilt' or innocence of the defendant according to their deliberate conviction, and that the law had settled what the effect of that fact should be, is not prejudicial, as calling the jury’s attention to the testimony of the defendant and to view his evidence with caution.</p> <p>Id.—Disregard of Sympathy—Instruction.—An instruction that although the jury might sympathize with those who suffer, they were bound by their oaths t'o administer judgment according to the law and the evidence, and should not act upon their sympathies or sentiment, is not objectionable.</p> <p>Id.—Larceny and Embezzlement — Distinguishing Features — Instruction.—In a prosecution for embezzlement, where the defendant testified that he had formed the intent to steal the property before it came into his possession as bailee, it is the duty of the court to instruct the jury upon the distinction between larceny and embezzlement as applicable to the evideneej and particularly the testimony of the defendant.</p>

<p>Criminal Daw—Presentation oe Fraudulent Claim Against County —Indictment—Charging in Words oe Statute Insufficient.—An indictment under section 72 of the Penal Code for presenting a false and fraudulent claim against a county is not sufficient where the offense is merely alleged in the language of the statute, since the circumstances of the offense must be set out.</p> <p>Id.—Falsity op Claim—Knowledge op Defendant,—An indictment charging the presentation of a fraudulent claim to a county board of supervisors is not sufficient where it is merely alleged that the claim was fraudulent, since it must be shown that' defendant had knowledge of its falsity.</p> <p>H>.—False Claim for Work on Public Highway—Authority to Do Work.—An indictment for presenting a false and fraudulent claim to a county board of supervisors for work done on a public highway is insufficient, in the absence of any allegation that the defendant was acting under the authority of a person authorized to incur a claim against the county.</p> <p>Id.—Inclusion of False Claim of Third Party—Indictment Wholly Void.—An indictment for presenting a false claim for road work which contains two items, one for work done by defendant and the other for work done by a third party, each for more work than was done, is void as to both claimants.</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>The facts are stated in the opinion of the court.</p>

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

<p>Indemnity Insurance—Loss Sustained by Assured—Liability oe Insurer—Payment in Money.-—Where a policy of insurance against loss by reason of accident to employees provides that' no action shall lie against the insurance company except for reimbursement for the amount of loss actually sustained and “paid in money” by the assured in full satisfaction of a judgment duly recovered against him, the giving of his promissory note in satisfaction of the judgment is not a “payment in' money” within- the terms of the policy, and is therefore insufficient to sustain an action on the policy.</p>

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

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

<p>Workmen’s Compensation Act—Injury to Painter—Admeasurement op Compensation.—Under subdivision 2, section 17, of the Workmen’s Compensation Act (Stats. 1913, p. 289), providing that if the injured employee had not worked in such employment during substantially the whole of the immediately preceding year,, his average annual earnings shall consist of three hundred times the average daily earnings which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar kind of employment, in the same or a neighboring place, earned during the days when so employed, an award of compensation made to a painter employed to work for $2.50 per day, for injuries received two days after he was employed, on a basis of $4.50 per day, is not open to review, where there was evidence that $4.59 was the standard wage scale for painters in that locality.</p>

<p>Corporation Law—Conditional Contract for Subscription or Stock— Enforcement Against Subscriber.—A contract for the purchase of corporation stock on which there was indorsed at the request of t'he subscriber by the sales agent "of the corporation an agreement that the subscriber should have the right at any time within ten months ■to return the stock and receive back his note or cash, is not binding on the subscriber by reason of his failure to give the notice contemplated in the indorsement, where the sales agent was without authority to make the indorsement, but made the same upon the promise to submit the whole matter to the corporation for its acceptance or rejection, which promise was not carried out, but instead the subscription entered on the books of the corporation without the indorsed condition.</p>

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

<p>Willie Act—Galling of Election—Filing of Clerk’s Certificate Within Time Essential—Mandamus.—Under the Wyllie Act (Stats. 1911, p. 599) no duty is incumbent on the board of trustees of a city to call an election to determine the question whether the sale of alcoholic liquors shall be licensed therein until the city clerk files his written certificate showing the petition to have been signed by the requisite number of qualified electors, and where the clerk postpones the filing of his certificate until the day following the expiration of the six-month period in which a special election may be called under the statute, mandanms will not lie to compel the board to call such an election.</p>

<p>Criminal Law—Manslaughter—Sufficiency of Information.—An information charging that the defendant did willfully, unlawfully, and feloniously kill and murder a human being, sufficiently charges the crime of manslaughter under section 192 of the Penal Code, without alleging whether the offense was voluntary or involuntary manslaughter.</p> <p>Ib.—Forms of Verdict—Glasses of Manslaughter—Lack of Prejudice.—In a prosecution under such an information, the defendant was not prejudiced' by the failure of the court t'o submit to the jury a form of verdict for both voluntary and involuntary manslaughter, although the evidence was such as to have justified the submission of both forms of verdict, since under section 193 of the Penal Code the punishment for manslaughter of either class is the same.</p> <p>Id.—Proof of Intent—Instruction.—An instruction that intent to commit a crime is never required to be proven by positive and direct evidence, but may be proven by all the facts and circumstances disclosed by the evidence and testimony in the ease, is not objectionable as declaring in effect that the intent to do an unlawful act is presumed from its commission.</p> <p>Id.—Issue of Self-defense—Instruction.—An instruction that the issue of self-defense should be determined by applying the rule as to what a reasonable man would have done under the circumstances, and that if a reasonable person would have believed he was in danger of receiving bodily harm, and that the danger was pressing and imminent, he would be justified in using such force as would protect him from bodily harm, is proper.</p> <p>Ib.—Evidence—Athletic Ability of Defendant.—Where in such a prosecution it was shown that the deceased was a large man and the defendant a small man, and the defendant attempted to prove that a person of his size could not strike a blow sufficient to kill the deceased, there was no error in permitting the state to show the defendant’s ability as an athlete, and that' he had several years previously to the trial engaged in boxing-matches.</p> <p>Id.—New-Trial—Newly Discovered Evidence—Lack of Diligence.— In such a prosecution, it was not an abuse of discretion to deny a new trial on the ground of newly discovered evidence, where such evidence consisted of testimony of persons who were present at the time of the homicide, which occurred in a community of small population, and of testimony of persons as to the habits of the deceased when intoxicated.</p> <p>Id.—Bulb as to New Trial fob Newly Discovered Evidence.— Whether a motion for a new trial should or should not be granted upon the ground of newly discovered evidence is a proposition which is addressed t'o the sound discretion of the trial court, and the denial of a new trial on that ground will not be reversed unless it clearly appears that the court abused its discretion by its action in that regard.</p>

<p>Contract—Person not Adjudged Insane—Rescission.—In order for a person to avail himself of section 39 of the Civil Code,, which provides that a conveyance or other contract of a person of unsound mind but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission as provided in the chapter on rescission of such code, it is not necessary for a person to be incompetent to make any kind of contract or to transact any business, however simple, but the test is as to whether he was mentally competent t'o deal with the subject before him with a full understanding of his rights, and of the nature, purpose, and effect of the contract.</p> <p>Id.—Release for Personal Injuries—Rescission—Appeal—Review of Evidence.—In determining whether a trial court was justified in finding that an employee seeking t'o avoid a release for injuries was mentally incompetent, the evidence must be regarded in the light most favorable to such conclusion.</p> <p>Id.—Cancellation of Release—Sufficiency of Evidence.—A release of damages for personal injuries obtained from an employee enfeebled mentally and physically, unable to work, and without financial resources, for an inadequate amount, upon the misrepresentation that the employee was only entitled to a certain amount under the Employers’ Liability Act, is properly set aside on the ground of fraud.</p> <p>Id.—Delay in Bringing Action—Lack of Laches.—An employee who delayed bringing an action to rescind a release of damages for personal injuries upon the advice of an attorney that he had no ease cannot be held guilty of laches, where he subsequently consulted another attorney who advised him that he'had a, ease, and brought suit to rescind within three weeks thereafter, the other party to the release having suffered no prejudice from the delay.</p> <p>Id.—Laches Question or Fact.—The question of laches in bringing an action is primarily a question for the trial court, and the solution of the question depends upon the particular circumstances of each ease.</p>

<p>APPLICATION for a Writ of Review to annul an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Evidence—Use of Different Names—Harmless Cross-examination of Defendant.—-In a prosecution for murder, it was not reversible error to permit the defendant to be cross-examined, over the objection of his counsel, as to whether he had not at various times and at different places been known by other names than that given by him on direct examination, where the evidence overwhelmingly showed the defendant’s guilt.</p> <p>Id.— Opening Statement of Prosecuting Attorney — Deference to Proof of Inadmissible Letters—Lack of Prejudice—Admonition of Court.—In a prosecution for murder, the defendant was not prejudiced by the opening statement of the prosecuting attorney that the people hoped to prove that defendant with others had entered into a conspiracy to murder the deceased because he had refused to pay them two thousand dollars that' they had demanded of him as “Black-hand” money, and that it would be shown that shortly before the homicide they had caused to be sent to the deceased letters, in which it was stated that unless deceased deposited the money at a certain place a terrible tragedy would occur in his family, notwithstanding such letters were not admissible in evidence, where the court at once instructed the jury that the statement was not evidence, and that they were so advised.</p> <p>Id.—Appeal—Acts op Misconduct-—Waiver.—On an appeal in a criminal action, acts of misconduct of the district attorney occurring during the trial are deemed to have been waived where such acts were not assigned as misconduct at that time.</p> <p>Id.—Instruction to Disregard Misconduct — Presumption on Appeal.—On an appeal in a criminal action it will ordinarily be presumed that the jury followed the court’s admonition to disregard the misconduct of the district attorney.</p>

<p>Negligence—Sale of Gasoline fob Kerosene—Destruction of Dwelling from Damp Explosion—Proximate Cause of Doss—Question for Jury.— In an action against a trading company for damages for the destruction of a dwelling from the explosion of a lamp which had been filled by the occupant with gasoline instead of kerosene, it cannot be said that the negligence of the deliveryman of the defendant in mistakenly filling the cans kept' on the premises for the reception of the two liquids was not the proximate cause of the loss, because of the fact that the wife of the occupant upon lighting the lamp and noticing its peculiar actions ran to call a neighbor, instead of picking up the lamp and running outside with it, as was done by the neighbor, since it' was a question for the-jury whether she acted as an ordinarily prudent person would have acted under all the circumstances.</p>

<p>Attorney at Law—Making and Filing of Disrespectful Affidavit— Permanent Disbarment.—An attorney at law who makes and files an affidavit in a pending action charging several judges of the superior court, various members of the bar, and other persons with confederating in a wicked and criminal conspiracy against the plaintiff in the action whom he represented, and which affidavit abounds in such phrases as “criminal, corrupt, and wicked conspiracies,” “criminal confederates,” “colossal and confident insolence,” "criminal prosecution,” “calculated brutality,” and similar phrases ofttimes repeated and applied to the judicial officers in question, and containing also the reiterated characterization of certain proceedings in the court's over which such judicial officers presided as “a corrupt deadfall,” violates the spirit, intent, and terms of section 282 of the</p> <p>Code of Civil Procedure, and affords ample ground for the permanent disbarment of such attorney, especially when neither justification, withdrawal, mitigation, or excuse for the making and filing of such a' document has been, proffered.</p>

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

<p>Juvenile Court Law—Contributing to Delinquency of Minor—Sufficiency of Information.—Under section 21 of the juvenile court law (Stats. 1915, p. 1246), providing that any person who shall commit any act or omit the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of twenty-one years to come within the provisions of subdivisions 1 to 13 of section l'of the act, or which act or omission contributes thereto, shall be guilty of a misdemeanor, an information charging that the defendant was the manager of a café where intoxicating drinks were sold, and that he was present when a girl of the age of seventeen years was served with liquor, sets forth a public offense, especially in view of section 397b "of the P'enal Code, which makes it a misdemeanor for the proprietor or manager of any place where intoxicating liquors are sold to permit any minor under the age of eighteen years to visit such place, .or to make a sale of liquor to such a person.</p> <p>Id.—Guilt of Defendant—Sufficiency of Evidence.—A verdict of guilty of an omission tending to delinquency in violation of section 21 of the juvenile court law, providing that any person who omits the performance of any duty which causes or tends to cause or encourage any person under the age of twenty-one years to become a delinquent, shall be guilty of a misdemeanor, is supported by evidence that the defendant was manager of the public drinking place in question, and was present' when the minor entered and was served with intoxicating liquor, and that she remained there dancing and drinking for three-quarters of an hour.</p> <p>Id.—Omissions Causing Delinquency—Constitutionality op Provision.—Section 21 of the juvenile court law, providing that any person who omits the performance of any duty which causes or tends to cause or encourage any person under the age of twenty-one years to become a delinquent shall be jjuilty of a misdemeanor, is not unconstitutional, as being too vague and indefinite for enforcement.</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 hear and determine a petition to amend a claim against the estate of a deceased person.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Workmen’s Compensation Act—Injuries to Teamster Employed in Municipal Woodyaed—Removing Household Goods of Indigent Family — Eight to Compensation.— A municipal corporation is liable under the Workmen’s Compensation Act for injuries received by a teamster employed in the municipal woodyard while engaged under the direction of the superintendent of the yard in removing the household goods of an indigent family, where it was shown that the purpose of the woodyard was t'o provide employment for indigent families and the powers and duties of the superintendent in reference to the uses which were to he made of services of indigent teamsters broader than that of merely directing the delivery of wood.</p>

APPEALS from a judgment of the Superior Court of Marin County. Edgar T. Zook, Judge. The facts are stated in the opinion of the court. Martinelli & Greer, for Appellants in Civil No. 2237 and for Respondents in Civil No. 2267.

<p>Attorney at.Law—Disbarment—Smuggling of Opium into United States—Aqt Involving Moral Turpitude.—Under subdivision 1 of section 287 of the Code of Civil Procedure, providing for the disbarment of an attorney at law upon his conviction of a felony or misdemeanor involving moral turpitude, an attorney convicted of the crime of conspiring to smuggle opium into the United States in violation of the act of Congress of January 17, 1914, is subject to disbarment.</p> <p>Id.—Disbarment for Felony Involving Moral Turpitude—Notice of Proceeding not Bequired.—In a proceeding for the disbarment of ■an attorney at law under subdivision 1 of section 287 of the Code of Civil Procedure, no notice is required to be given to the attorney, since it is provided by such section that the record of conviction shall be conclusive of his conviction of a felony or misdemeanor involving moral turpitude.</p> <p>Id.—Conviction in Federal Court—Disbarment.—Under subdivision 1 of section 287 of the Code of Civil Procedure, an attorney at law may be disbarred for an offense against the federal laws for which he was convicted in the federal courts, notwithstanding the provision of section 288 of such code, which requires the clerk of the court in which the conviction was had to transmit the record to the supreme court, since said subdivision 1 makes records of conviction conclusive evidence regardless of their place of origin.</p> <p>Id.—Bbinstatement to Practice — Premature Application.—An attorney convicted of conspiracy to smuggle opium into the United States in violation of federal law is not entitled to reinstatement for good moral character within a little over three years after the commission of the crime, two and one-half years after sentence, one year after his conviction became final, seven months after his disbarment, six months after he began his imprisonment', and three months after he concluded it.</p> <p>Id.—Purpose of Disbarment.—Disbarment of an attorney for an offense involving moral turpitude is not punitive in character, but protective of the public and the legal profession.</p>

<p>Criminal Law—Practice or Dentistry Without License—Evidence— Persons Employed by State to Detect Grime—Witnesses not Accomplices.—In a prosecution for practicing dentistry without a license in violation of the provisions of an act of' the legislature regulating the practice of dentistry (Stats. 1915, p. 698), persons employed by the state to seek and submit to the services of the defendant were not accomplices of the defendant in the perpetration of the crime charged within the meaning of section IV of the Penal Code, as amended in 1915, since whenever the commission of a crime by one person involves the co-operation of another person, the latter becomes an accomplice only in the event that his co-operation in the commission of the crime is corrupt.</p> <p>Id.—Witnesses as Feigned Accomplices—Corroboration not Necessary.—Even though persons employed by the state to detect violations of the state Dental Act be considered as feigned accomplices, their testimony needs no corroboration, since the uncorroborated tes- ' timony of one who, under the direction of officers of the law, feigns complicity in the commission of a crime merely for the purpose of detecting and prosecuting the perpetrators thereof will support a conviction.</p> <p>Id.—Dental Act op 1901—Repeal op Prior Acts—Time op Taking Effect.—The Dental Act (Stats. 1901, p. 571) in providing that it should take effect September 1, 1901, and that all prior laws were thereby repealed, did not leave any interregnum in the law between the repeal of the prior acts and the. taking effect of the new act in which it was lawful to practice dentistry without a license, since the repeal of the prior acts did not take effect' sixty days after its passage, but the entire act went into effect September 1st.</p> <p>Id.—Pleading — Information — Traverse op Exceptions Unnecessary.—An information charging the crime of practicing dentistry without a license need not traverse the exceptions contained in the act.</p> <p>Id.—Payment op Fee for Operation — Unnecessary Allegation.— Under the Dental Act providing that a person shall be understood to practice dentistry within the meaning of the act who shall have a fee, salary, or reward paid directly or indirectly either to himself or to some other person performing an operation, etc., it is not necessary that the information should charge that the fee paid for the work performed by the defendant was paid by the person upon whom the work was performed.</p> <p>Id.—Constitutional Law—Act not Special Legislation—Jurisdiction of Superior Court.—The state Dental Act does not contravene section 25 of article IV of the constitution, prohibiting the enactment of local or special laws in the eases therein enumerated in view of section 5 of article VI, which provides that the superior court shall have original jurisdiction in cases of misdemeanor not otherwise provided for.</p> <p>Id.—Act not Discriminatory.—The provisions of section 5 of the Dental Act prescribing who shall be eligible to take an examination before the board of dental examiners is not unconstitutional on the ground that it is discriminatory, since it only discriminates between those who have the necessary learning and skill and those who- have not, and those ,who are able and those who are unable to acquire it.</p> <p>Id.—Act not Special Legislation as to Evidence.—Section 11 of the Dental Act does not specify what shall constitute sufficient evidence to convict a person under the law, but the acts that shall constitute the practice of dentistry, and is not therefore special legislation within the inhibition of subdivision 3 of section 25 of article IV of the constitution.</p> <p>Id.—Evidence—Character op Work.—In a prosecution for practicing dentistry without a license, evidence as to the character of the work performed by defendant, offered for the purpose of showing that he was a good dentist, was properly excluded, as not responsive to any issue in the case.</p>

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

<p>Mechanic’s Lien—Foreclosure—Party Aggrieved—Eight oe Appeal. In an action to foreclose a materialman’s lien, the owner of the property when the materials were furnished and the claim of lien filed, but who subsequently conveyed all his interest in the property, and against whom no judgment for costs was rendered, is not a party aggrieved who has the right of appeal from the judgment under section 938 of the Code of Civil Procedure.</p> <p>Id.—Eight to Costs.—In an action to foreclose a materialman’s lien, a defendant who was the owner of the property at the time the materials were furnished and the claim of lien filed, but' who had subsequently conveyed his interest in the property, is not entitled to his costs where he contested the right of plaintiff to his lien.</p>

<p>Contract—Balance Due for Work — Fart? Entitled — Evidence — Support of Findings.—In this action involving the rights of conflicting claimants to the balance due for work in furnishing and installing a temperature regulation apparatus, it is held that the findings are supported by the evidence, which in turn support the judgment.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying dismissal of action. John L. Childs, 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>Albert Lee Stephens, City Attorney, Charles S. Burnell, Assistant City Attorney, and Arthur M. Ellis, for Appellants.</p>

<p>Fraudulent Conveyance—Husband to Wipe—Presumption.—A transfer by a husband to his wife, within four months of bankruptcy, of real property standing of record in his name and without consideration, is presumptively fraudulent as to existing creditors, under section 3442 of the Civil Code.</p> <p>Id.—Presumption op Fraud—Support op Judgment.—In an action to set aside a transfer made by a husband to his wife within four months of bankruptcy and without consideration, the presumption of frauduleney as to existing creditors is sufficient to support the ' judgment, notwithstanding the uncontradieted statements of the defendants against the presumption, since the court is not bound by such testimony in view of the provisions of subdivision 2 of section 2061 of the Code of Civil Procedure.</p>

<p>PROCEEDING for the disbarment of an attorney at law.</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 Third Appellate District to compel the state controller to draw his warrant for a sum of money appropriated by the legislature to pay for loss of state fair exhibits.</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>Vendor and Vendee—Default in Payments—Cancellation of Contract—Recovery of Money Paid.—Purchasers under a contract' for the sale of real property are entitled to recover the amounts paid by them on account of the contract, where, after default in the payment of installment's, the vendor served notice of cancellation of the contract and without their consent took possession of the property.</p> <p>Id.—Acceptance of Overdue Payments — Waiver of Forfeiture.— Where the vendor under a contract for the sale of real property repeatedly accepts payments on the purchase price after their due date, he cannot' declare the contract terminated for subsequent defaults in making payments, without first giving notice to the purchasers of his intention to require strict compliance with the terms of the contract.</p> <p>Id.—Rule as to Forfeiture for Subsequent Defaults.—Where time is made of the essence of the contract for the payment of money,</p> <p>and the covenant has been waived by the acceptance of payments after they are due, with knowledge of the facts, such conduct' will be regarded as creating such a temporary suspension of the right of forfeiture as could only be restored by giving a definite and specific notice of an intention to enforce it.</p> <p>Id.—Rule as to Recovery or Purchase Money.—Where a contract has been abandoned or rescinded by the parties, the vendee, although in default, may recover back installments paid on the purchase price, less actual damages to the vendor occasioned by the vendee’s breach of contract, although it was stipulated that such payments should be forfeited upon default.</p>

<p>APPLICATION for a Writ of Prohibition originally made to the Supreme Court to prevent a Superior Court from enforcing a judgment for contempt, and transferred to the District Court of Appeal for the Third Appellate District for hearing and decision.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Appeal—Alternative Method—Record.—Where an appeal is taken under the alternative method, and neither party prints in his brief such portions of the record as he desires to call to the attention of the appellate court, the typewritten transcript will not be examined. Water Rights—Sufficiency of Bindings.—In an action to determine water right's, for an injunction and damages, a finding that plaintiff’s predecessors in interest did not appropriate all the waters of the stream carrying ten and seventy-five one-hundredths inches of water, and that such predecessors appropriated six inches, while lacking in definiteness, impliedly shows that defendants are entitled to the difference between the plaintiff’s appropriation and the total flow.</p>

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

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

<p>Action for Rescission—Option to Lease—Misrepresentation of Loss of Rights Under PRior Lease—Insufficient Ground for Relief. An'agreement giving to a defaulting lessee an option to take a new lease of the premises at a higher rental and to buy the personal property contained therein at a higher price is not subject to rescission, on the ground that the lessor misrepresented to the lessee she had lost all her right to the possession and property under the original lease, since the representation was a mere opinion on a question of law on which the lessee had no right to rely.</p> <p>Contract—Rescission—Misrepresentation—Opinion of Law.—An alleged misrepresentation consisting of a mere opinion on a question of law made by the- defendant to the plaintiff toward whom he occupied no confidential relationship does not justify the plaintiff in relying upon it and does not furnish ground for rescission.</p> <p>Id.—Reliance upon Advice of Attorney.—An agreement is not subject to rescission for misrepresentation where before making it the plaintiff sought the advice of an attorney at law and acted thereon.</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.' Daniel C. Deasy, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action Against State—Recovery of Corporation License Taxes— -Consent Essential.—An action cannot be maintained by the assignee of a large number of corporations against the Secretary of State and state treasurer to recover sums -of money paid by the assignors to the Secretary of State under the provisions of the annual corporation license tax law, without the consent of the state itself, since the state is the real party against whom the relief is sought.</p>

<p>Negligence—Automobile Collision With Pedestrian—Relationship op Parties.—In. an action for injuries sustained by a pedestrian from being run into by an automobile, while one of the three original occupants of the car was returning from a police station, where he had gone to secure the release on bail of the driver of the car, who had been arrested and detained for speeding, the arrested driver cannot be held liable for the negligence of the occupant causing the injury, in the absence of any relationship between the occupant and the driver, other than friendship.</p> <p>Id.—Evidence—Prior Employment.—Where the liability of the original driver of the car for the injury to plaintiff was based solely upon a certain conversation between the driver and the occupant, who caused the injury, a question as to whether prior to that conversation the relation of employer or employee, or of principal and agent, had existed between them was not objectionable as calling for the conclusion of the witness, since the question of prior employment was immaterial.</p>

<p>Contract—Exchange of Corporate Stock—Alternative Conditions— Demand.—In view of section 1448 of the Civil Code, which provides that if an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation, where a contract calls for the delivery within a certain time on demand of either corporate stock or a named sum upon the surrender of certain other stock, a demand for the named sum only is insufficient, since it is incumbent upon the demanding party to make the demand in the alternative, section 1449 providing if the party having the right of selection between alternative acts does not give notice of his selection to the other party, the latter has the right of selection, being applicable, since until a proper demand is made there is no right of selection.</p> <p>Id.—Interlineation of Phrase Creating Alternative Obligation— Material Alteration of Contract.—Authority to fill in the blank spaces in an executed agreement for the exchange of corporate stock, such spaces being the name of the other contracting party and the number of shares of stock, does not include the authority to interline a phrase creating an alternative obligation to deliver the stock or cash, and such an interlineation works a most material alteration of the contract.</p>

<p>Damages—Torts—Prospective Profits.—Under section 3333 of the Civil Code, defining the measure of damages for the breach of an obligation not arising from contract, prospective profits are allowable as damages for tort, but they must be clear, proximate, and the natural results of the wrong, and must be confined to the principal thing complained of and to its naturally attendant consequences. Id.—Flooding of Growing Crop—Measure of Damages.—In an action for damages t'o a growing crop of hay from an overflow caused by the wrongful obstruction of a natural water-way, the measure of damages is the market value of the crop at plaintiff’s river landing at harvest time, less the cost of cutting, baling, and hauling the hay t'o the landing.</p> <p>Id.—Abatement of Nuisance and Damages—Appeal—Part Beversal of Judgment.—In an action for the abatement of a nuisance and for damages to a growing crop of hay, the judgment abating the nuisance and awarding plaintiff nominal damages will not be wholly reversed on appeal from the order denying a new trial, where the appellate court finds that the trial court erroneously determined the evidence was insufficient to justify an award of substantial damages, but reversed as to the part awarding nominal damages with directions to make findings on that issue and to amend the judgment accordingly.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Albert Lee Stephens, City Attorney, W. B. Mathews, Lewis E. Whitehead, and Wm. B. Himrod, for Appellants.</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. T. W. Harris, 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>Mechanic’s Lien—Recovery on Bond of Contractor—Filing of Claim of Lien Essential.—A materialman cannot maintain an action upon the bond given in conformity with the provisions of section 1183 of the Code of Civil Procedure, as amended in 1911, without first having filed his claim of lien as required by section 1187 of such code, and a complaint in such an action which does not allege the filing of such a lien fails to state a -cause of action.</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 of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Appointment of Special Administrator—Lack of Evidence of Death—Annulment on Certiorari. Where a special administrator is appointed without evidence of the death of the alleged deceased, the order is void for want of jurisdiction, and subject to annulment upon proceedings under a writ of review, since no appeal lies from an order appointing a special administrator.</p> <p>Id.—Affidavit of Death—Insufficient Evidence.—An order appointing a special administrator made upon the recital of the fact of death in an affidavit is void, since affidavits may be used as evidence only in cases expressly permitted by section 2009 of the Code of Civil Procedure.</p> <p>Id.—Order Setting Aside Void Letters—Time.—A void order appointing a spe'eial administrator may be vacated within a reasonable time upon proper procedure by the deceased, if alive, or by an heir at law, if such deceased be dead, and the six months’ period provided ■by section 473 of the Code of Civil Procedure is inapplicable.</p> <p>Id.—Proceeding to Annul Order Appointing Special Administrator —Party Beneficially Interested.—The surety on the bond of a removed administrator who has been joined with such administrator in an action for fraud in the administration of the estate is a party beneficially interested in a proceeding to annul a void order appointing a special administrator for a person interested in such estate who was by an order of court made a party plaintiff in such action.</p>

<p>Secretary op Superior Court—Counties Having Population of Three Hundred Thousand Inhabitants—Constitutionality op Act op 1909-.—The act of the legislature providing for a secretary of the superior court in counties and cities and counties having a population of three hundred thousand inhabitants and over (St'ats. 1909, p. 940), is not unconstitutional on the ground that its application is special and limited.</p> <p>Id.—Office not Created by Act of 1909.—The act of the legislature of 1909 providing for'a secretary of the superior court in counties and cities and counties having a population of three hundred thousand inhabitants and over does not create an office in violation of section 25, article TV", subdivision 28, of the constitution.</p> <p>Id.—Status of Secretary—Right to Compensation for Duties as Jury Commissioner.—The secretary of the superior court' is not an officer of the county or an attache connected with a county office within the meaning of section 7% of article XI of the constitution, authorizing the framing of county charters, or within the meaning of the provisions of the county charter itself, and he is therefore entitled to the additional compensation provided by the act of 1917 for performance of the duties of jury commissioner, upon his appointment to the duties of such office.</p>

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

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

<p>Dedication—Public Use — Intention—Evidence. — An offer of the owner of land to dedicate it for public use may be established in every conceivable way in which such intention can be manifested. The vital principle is the intention to dedicate; and whenever this is unequivocally manifested, the dedication, so far as the owner is concerned, has been made.</p> <p>Id. — Dedication op Street — Deed Between Private Persons.— Where the owner of land makes a conveyance thereof and in the deed also conveys a ten-foot strip for street purposes, he thereby dedicates such strip to public use, although the public is not a party to the instrument, and upon an acceptance by the public a complete and perfect dedication is created.</p> <p>Id. — Nonuser op Dedicated Street. — The rights of the public in a dedicated street cannot be lost by nonuser or delay in the use or by a mere temporary abandonment of such use.</p> <p>Id.—Title by Adverse Possession.—Title to a public street cannot be acquired by adverse possession.</p> <p>Ib. — Revocation of Offer of Dedication — Stranger to Title.—Á. stranger to the title cannot revoke an offer of dedication of land for a public street.</p> <p>Id.—Payment of Taxes—Erection of Improvements—Estoppel.— The payment of taxes on a strip of land dedicated as a public street; the erection of certain improvements thereon, and the recognition of private ownership in an adjacent owner, does not estop the municipality from claiming the land as public street.</p>

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

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

<p>Broker’s Commissions—extension of Time by Vendor—Effect of.— Under an agreement made between the vendor and a broker providing for the payment of the latter’s commissions when certain payments were made by the purchaser, and that if the purchaser failed to carry out his contract the broker should not be entitled to any commissions beyond the amount due at the time of the purchaser’s default, where the purchaser was unable to make the payments at the time specified and the vendor extended the time on condition if the payments were not made within the extended time the contract would terminate, and the payments were never made, the vendor is not liable to the broker for commissions because of the extension of time or because the broker had no notice thereof when the extension was made.</p>

<p>Default Judgment—Order Setting Aside—Appeal—Discretion.— An order setting aside a default judgment under section 473 of the Code of Civil Procedure will not be disturbed on appeal unless it very clearly appears that the trial court has abused its discretion. Id.—Mistake of Attorney—Indorsement of Wrong Date of Service of Copy of Complaint—Belief—Discretion not Abused..—An order setting aside a default judgment against a public administrator will not be disturbed where it is made to appear that the deputy county counsel to whom the copy of the summons and complaint was delivered by mistake indorsed thereon the wrong date of service, and the deputy to whom the case was assigned for answering relied upon such indorsement, and upon discovery of the mistake the defendant promptly moved to set aside the judgment and filed an answer-raising substantial issues of fact.</p>

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

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

<p>Negligence—Injury to Servant Working on Hop-picking Machine— Obvious and Well-understood Peril — Insufficiency of Evidence.—In this action for injuries received by the plaintiff from having her dress caught in a revolving shaft while working on a hop-picking machine, it is held under the evidence that she did not voluntarily place herself in the way of an obvious and well-understood peril.</p> <p>Id.—Employers’ Liability Law—Assumption of Risk No Defense. Under the Employers’ Liability Act, the assumption of risk is no defense to an action by a servant for injuries.</p> <p>Id.—Guarding of Shaft—Duty of Defendant—Sufficiency of Evi< dence.—In this action it is also held that the evidence is sufficient to warrant the conclusion that the accident would have not occurred if the shaft had been properly protected, and that the defendant should have properly guarded the same.</p> <p>lb.—Credibility of Witnesses — Instruction. — Where the court instructed the jury in the language of the code that a witness false in one part of his testimony is to be distrusted in others, the refusal to give the more elaborate instruction that if they believed that a witness had testified falsely and had done so knowingly and willfully as to any material matter, his testimony may be disregarded, was not prejudicial error, where the court also gave elaborate instructions on the credibility of witnesses.</p> <p>Id.—Enactment of Workmen’s Compensation Act—Law Governing Prior Injuries.—The Workmen’s Compensation Act of 1913, in view of the saving clause therein declaring that the compensation provisions of the act should not apply to any injury sustained prior to the taking effect thereof, continued in force existing laws as to injuries sustained prior to such time.</p> <p>Id.—Bight to Compensation Under Employers’ Liability Act—Be-peal op Act—Bight not Destroyed.—The right of an employee to compensation under the Employers’ Liability Act of 1911 is a vested right, which was not taken away by the' repeal of such act.</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. T. W. Harris, Judgé.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor’s Lien—Nature of.—It is not essential to the right to claim a vendor’s lien that an intention on the part of the vendor to create and retain unto himself the right to such lien should be expressly declared. The right is given in equity and in law by the very nature of the transaction, and consequently exists without regard to the express agreement of the parties.</p> <p>Id. — Knowledge and Acquiescence in Mortgage of Property — Defeat of Lien.—In view of section 3048 of the Civil Code, declaring that a vendor’s lien is valid against everyone claiming under the debtor except a purchaser or encumbrancer in good faith, the right to claim such a lien is defeated by the vendor’s knowledge of and acquiescence in the hypothecation of the property, as against the mortgagee.</p> <p>Id. — Assignment for Benefit of Creditors — Extinguishment of Lien.—An assignment for the benefit of creditors and a conveyance made thereunder prior to any endeavor on the part of the vendor to declare and establish his lien will prevail over and operate to' defeat the right to claim the lien where the creditors become subscribing parties to the assignment and thereby accept the same by assenting to and claiming the benefit of its provisions, since they assume by virtue of the assignment the character of lien claimants.</p>

<p>Negligence—Death of Mining Company Employee—Cause of Accident—Evidence—Declaration of Deceased.—In an action against a mining company and one of its employees for the death of another employee alleged to have been caused "by the negligence of the defendants, the declaration of the deceased made some thirty minutes after the accident in the presence of the defendant employee as to the cause and consequence of the accident was properly admitted, where the objection -to the admission of the declaration rested solely upon the single ground that it was merely opinion evidence.</p> <p>Evidence — Objection upon Specific Grounds — Purpose.—The purpose of the rule which ordinarily requires that an objection -to be available must be made upon specific grounds which point to the vice of the proffered proof is to call the trial court’s attention to the defect in such proof, and thereby enable the court to rule upon the objection with such defect in mind.</p> <p>Id.—Statements of Deceased—Cause of Accident—Narrative of Past Event.—In an action against a mining company and one of its employees for the death of an employee alleged to have been caused by the negligence of the defendants, statements of the deceased as to the cause and consequence of the accident made some thirty minutes thereafter are but the expression of an opinion, and no part of the res gestae.</p> <p>Id.—Declarations in Presence op Party—Admissibility.—In view of subdivision 3 of section 1870 of the Code of Civil Procedure, providing that evidence may be given upon a trial of an act or declaration of another in the presence and within the observation of a party and his conduct in relation thereto, the declaration of a deceased person as to the cause and consequence of an accident made some thirty minutes thereafter, in the presence of and to one of the defendants, is admissible, at least as against such defendant. Id. — Physician and Patient — Waiver op Privilege.—The privilege given by subdivision 4 of section 1881 of the Code of Civil Procedure, as such subdivision existed before the amendment of 1917, providing that a physician could not testify as to information acquired without the consent of the patient, is waived, in an action for death, by the administrator putting other witnesses on the stand to testify as to the nature of the injuries.</p>

<p>Mechanic’s Lien—Payment of Money to Contractor After Notice to Withhold — Effect of Code Amendment. — Under the amendment of 1911 to section 1184 of the Code of Civil Procedure (Stats. 1911, p. 1315), providing that it shall be lawful for the owner -to withhold from the contractor sufficient money due or that may become due to answer the claim of any lien for labor or material furnished to the contractor, it is not mandatory upon the owner to withhold payment after notice, and the doctrine of “premature payments” as formerly applied in mechanic’s lien cases has no application to such a ease.</p> <p>Id.—Filing of Liens—Time.—The limit of time fixed by statute for the filing of mechanic’s liens where no notice of completion or cessation from labor has been filed is ninety days after the actual completion of the building.</p> <p>Id.—Cessation from Labor—Time for Filing Liens.—The time allowed for filing mechanics’ liens where there has been a cessation from labor is ninety days after the expiration of thirty days from the date of such cessation or, in other words, one hundred and twenty days after the actual cessation from labor.</p> <p>Id.—Completion by Owner—Time for Filing Liens not Extended.—. The subsequent completion of a building by the owner after a thirty-day cessation from labor thereon, by the contractor, does not operate as an extension of time for filing liens.</p> <p>Id. — Interest on Lien Claims — Time. — Interest on lien claims for labor and material furnished under contracts fixing no time of payment should be allowed from the time of the commencement of the actions to foreclose the liens.</p> <p>Id.—Constitutionality op Section 1183, Code op Civil Procedure— Changes in Building Contract Without Releasing Surety.— The provision of section 1183 of the Code of Civil Procedure that no modification of a building contract between the owner and the contractor shall relieve the surety on the bond required to secure payment of lien claims is not unconstitutional.</p> <p>Id. — Contract por Second Story to Building — Modification op Original Contract — Piling Unnecessary. — A contract for the construction of a second story to be added to a building in course of construction is a modification of the original contract not required to be filed.</p> <p>Id.—Premature Payment on Contract—Surety on Bond not Released.—The surety on a bond given to secure the performance of a building contract pursuant to section 1183 of the Code of Civil Procedure is not released by the premature payment of an installment of the purchase price by the owner to the contractor, in view of the provision of such section that no modification of the contract between the owner and the contractor shall relieve the surety.</p> <p>Id.—Recovery on Bond—Persons Entitled.—Only those laborers and materialmen who have perfected their claims by filing verified liens within the time specified by the statute are entitled to recover upon the bond given pursuant to section 1183 of the Code of Civil Procedure.</p>

<p>Quieting Title — Appeal—Concessions op Pabties—-Beversal op Judgment.—On an appeal from a judgment in an action to quiet title in favor of the respondents the judgment must be reversed where it is conceded by the respondents in open court that the evidence is insufficient as a matter of law to support the finding of title in the respondents, and it is also conceded that the appellant was in possession of the property at the time the action was commenced, and that such possession, as against a person who had no better title or no title at all, should have compelled a finding in favor of the appellant.</p>

<p>appeal—Order Denting New Trial—Effect of Code Amendment.— The amendment of August 8, 1915, to section 963 of the Code of Civil Procedure, taking away the right of appeal from orders denying motions for new trials, is applicable in every case where the</p> <p>order was made subsequent to the date of the taking effect of the amendment, notwithstanding the right to appeal from the judgment in such case had expired prior to the amendment.</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 setting aside a default judgment.</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 award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Alternative Method — Sufficiency of Eecord.—On an appeal from a judgment alone under the alternative method, where there is before the court a typewritten copy of the judgment-roll certified by the clerk of the trial court, the appeal will not be dismissed because of the absence of such record of the trial as is designated under section 953a of the Code of Civil Procedure, to take the place of a bill of exceptions.</p>

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

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

MOTION to strike out portions of testimony taken before a referee in a proceeding opposing an application to practice law. The facts are stated in the opinion of the court.

<p>Criminal Law-—Murder — Admission to Bail.—Application denied and petitioner remanded on authority of Ex parte Bena Mooney, ante, p. 797:</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Lewis R. Works, Judge.</p> <p>The facts are the same as those stated in the opinion in Nutting v. City of Los Angeles et al., cunte, p.. 519.</p>

<p>Costs — Undertaking in Action Against Nonresident — Power of Court to Extend Time.—Writ of prohibition dismissed upon authority of Bertg v. Superior Court of City and County of San Francisco, ante, p. 83.</p>

<p>Street Assessment—Opening or Street Under Act or 1903—Pro-ceedings of City Council When Conclusive.—Judgment reversed on authority of Nutting v. City of Los Angeles et al., ante, p. 519.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Lewis R. Works, Judge.</p> <p>The facts are the same as those stated in the opinion in Nutting v. City of Los Angeles et al., ante, p. 519.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to compel the entry of satisfaction of a judgment. Daniel C. Deasy, Judge.</p> <p>The facts are stated in the opinion in the case of Le Roy M. Edwards et al. v. Leíais E. Gear et al., ante, p. 602.</p>