Volume 38 — California Appellate Reports

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

<p>The facts are stated in thp 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>Mechanics’ Liens—Mining -Claim—Labor—Oil Wells.—The second subdivision of section 1183 of the Code of Civil Procedure gives persons who perform labor in any mining claim a Ken for the value of the labor done, and provides that the superintendent shall he considered the agent of the owner; and this is the only statute on the subject applicable t'o an oil well.</p> <p>Id.—Claim of Superintendent for Salary.—The superintendent of an oil mining company is not entitled to a lien for his claim for unpaid salary, since such claim does not come within the purview of section 1187 of the Code of Civil Procedure, providing for the filing of claims.</p> <p>Id.—Form of Claim — Action to Enforce Lien — Pleading — Plaintiff’s Eights Limited by Claim Filed.—In an action to enforce a Ken under the mechanic’s Ken law, the plaintiff’s case can be no stronger r than that set forth in his claim of Ken.</p> <p>Id.—Manual Labor not Indicated.—Where it appears from the claim for unpaid salary of the superintendent of an oil company that his duties were to supervise and direct the oil drilKng operations for the purpose of developing and improving the premises, and there is nothing indicating that he performed manual labor, the claim of Ken is fatally defective.</p> <p>Id.—'Claim Prematurely Piled.—Under section 1187 of the Code of Civil Procedure, which provides that every person save the original contractor shall file his claim within thirty days after he has ceased to labor, the last day on'which a labor claimant performed labor must have passed before he can file his claim, and therefore where, in a claim filed on August 22d at 12:15 P. M., the claimant stated that he was still employed, and in an amended complaint in an action to enforce thejien it was alleged that the plaintiff was employed between April 1, 1912, and August 23, 1912, and that Ms services were concluded on or about August 22d, his employment had not ceased before his notice of lien was filed, and the claim of lien having been prematurely filed, it conferred no right of action.</p>

<p>Vendor and Vendee — Purchase Price Payable in Installments — Interest on Deferred Payments.—Interest on payment's of installments of the purchase price of land under a contract was not payable where the contract was for a fixed sum- and fixed installments and contained no agreement for the payment of interest.</p> <p>Id.—Contract—Unambiguous Instrument—Interpretation not Bequired.—Where a contract is a complete workable and unambiguous instrument, it does not require either evidence of usage or implication of law to interpret it'.</p> <p>Id.—Pleading—Contract Set Forth in Complaint—Allegations in Conflict With Contract—Striking Out.—Where a contract is set forth in full in a complaint, allegations of fact in direct conflict with the contract itself are properly stricken out as conclusions of law and also redundant and contradictory to the contract.</p>

<p>Criminal Law — Sale of Liquor to Minor — Juvenile Court Law— Penal 'Code—No Conflict of Laws.-—There is no conflict between section 21 of the juvenile court law (Stats. 1915, p. 1225), and section 397b of the Penal Code, the latter being intended to reach the specific offense of sales of intoxicating liquors to minors under the age of eighteen years, and the former being designed to protect persons under the age of twenty-one years from suffering the consequences o-f any act, which causes o-r tends to cause or encourage such persons to become addicted to the use of intoxicating liquors, or to lead idle, dissolute, or immoral lives.</p> <p>Id.—Act Punishable Under Two Statutes.—-The existence of a statute punishing the sale of intoxicating liquors when the purchaser is under the age of eighteen years cannot limit or affect the operation of the juvenile court law, under which one who sells intoxicatjug liquor to a person under the age of twenty-one .years may be prosecuted, if such conduct tends to cause the minor to lead a dissolute and immoral life.</p> <p>Id.—Construction of Juvenile Court Law—Distinction Between Act and Penal Code.—Under section 397b of the Penal Code, in the case of the sale of intoxicating liquor to a person under the age of eighteen, the sale alone, regardless of its consequences, constitutes the crime, but to constitute an offense under the Juvenile Court Act, the act. must be accompanied by circumstances tending to show that it would cause the minor to lead an immoral, idle, or dissolute life.</p> <p>Id.—Evidence—Verdict of Jury Justified.—Evidence in a prosecution under the juvenile court law examined and found to justify a verdict of guilty where the defendant had sold beer to a minor under the age of twenty-one, who was a frequenter of saloons and billiard-rooms.</p> <p>Id.—Intent of Seller Immaterial.—The intent of the seller in such case was immaterial, since the law contemplates the effects of selling and its tendency to cause the minor to become a delinquent and not the motive or intent of the seller.</p> <p>Id.—Other Sales—Purpose.for Which Admissible.—Evidence of the sale of intoxicating liquors to the same minor in the same saloon at other times was properly admitted, the jury having been told that the evidence was admitted upon the theory that it might tend to prove that this minor was a person who was in danger of becoming an habitual drunkard, and for that purpose alone, and not for the purpose of attempting to prove the main charge, namely, the sale of two bottles of beer to the minor.</p>

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

<p>Contract — Warranty — Writing—Oral Negotiations and Stipulations Superseded.—In -an action on two promissory notes given for the balance of the purchase price of a gas engine under a contract in writing where the defense set up was a counterclaim for breach of an alleged warranty, not contained in the written contract, to the effect that t'he engine would perform certain work with the consumption of a certain quantity of fuel, and it appeared that the warranty in t'he written contract was one to the effect that the engine should be tested before leaving the factory; that parts proving defective in workmanship and material should be replaced free of charge; that written notice should be given by the purchaser to the vendor of any failure to fulfill the warranty, the vendor reserving the right to send a man to test the engine at the vendor’s expense if defective in material or workmanship, and at the expense of the purchaser if the fault lay with the latter, and it appeared that the purchaser never gave the notice required by this provision of the contract, which also contained a provision that “no agreements, stipulations, or conditions, oral or otherwise, save those mentioned,” would be recognized, the case was governed by section 1625 of the Civil Code, which provides that “The execution of a contract, in writing, whether the law requires it to be in writing or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.”</p> <p>Id.—Findings and Judgment Supported by Evidence.—Evidence in such case examined and found to support the findings and judgment in favor of the plaintiff.</p> <p>Appeal—Conflicting Evidence.—In case of a conflict of evidence, the decision of the trial court will not be interfered with where there is substantial evidence to support the decision.</p>

<p>Criminal Law—Plea op Guilty—Denial op Application to Withdraw—Discretion op Court.—An application for leave to withdraw a plea of guilty is addressed to the discretion of the court, and where one charged with fraudulently issuing a cheek on a bank where he had no funds pleaded not guilty but admitted a prior conviction of a felony which was also charged, but at the time set for the hearing pleaded guilty and asked for probation, which was denied, the trial court did not' abuse its discretion, when the case was again called, by denying the defendant’s request for leave to withdraw his plea of guilty and to plead not guilty.</p>

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

<p>Corporations—Alleged Fraudulent Disposition op Corporate Property—Pleading—Insufficient Complaint.—In an action by the trustee in bankruptcy of a bankrupt corporation, alleging a fraudulent conspiracy, in the carrying out of which a purchaser of real and personal property from the corporation, shortly before the bankruptcy, applied two thousand dollars of the consideration which he had agreed to pay the corporation in satisfaction of a promissory note which he held and which was the individual obligation of the president of the corporation and his wife, guaranteed by a third person, the complaint fails to state a cause of action where it fails to disclose that damage resulted to the corporation or its creditors by reason of the transaction.</p> <p>Id.—Improper Joinder of Defendants.—In such action there was also an improper joinder of defendants.</p>

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

<p>Criminal Law—Murder—Assault on Defendant bt Deceased—Evidence.—On a trial for murder, testimony that the wife of t'he deceased had filed a complaint against him charging him with having assaulted her is not evidence that the deceased at a different time had struck the defendant.</p> <p>Id.—Reputation of Deceased.—Such evidence is equally inadmissible if offered in impeachment of the reputation of the deceased.</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 orders denying motions for a new trial and in arrest of judgment. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>APPEAL from a judgment of the Superior Court of Merced County, and from an order denying a new trial. E. N. Rector, 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>APPLICATION for a Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Criminal Law — Rape—Several Acts — Election by Prosecution— Proof — Immaterial Variance.—Where during the trial of a charge of rape the prosecutrix was permitted, without objection, to testify to five or six act's other than the one upon whieh the prosecuting officer elected to rely, which was charged as having occurred on the 9th of April, and the prosecutrix in detailing the circumstances of'that act referred t'o it as having occurred on April 11th, but later on cross-examination it was made to appear, that no act of intercourse took place on that day. and that her testimony in fact related to April 9th, the rights ot the defendant were nolj materially affected.</p> <p>Id.—Instructions—Limiting Scope of Testimony.—A defendant, in such case, who desired the court to instruct the jury, limiting the scope of the testimony respecting acts other than the one forming the basis of the charge, should have submitted to the court a specific written instruction, so that it might be given with the other instructions of the court, and, in the absence of such submission, the defendant was not prejudicially affected by the failure of the court to instruct the jury upon that particular point.</p> <p>Id.—Time to Bequest Instruction.—It is not sufficient, during the trial of a case, and at a time when the court is ruling upon the admissibility of evidence, to request in a general way that the court instruct the jury upon any particular phase of the law.</p>

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

<p>Street Law—Vrooman Act—City op Oakland—Accepted Street— Repairs or New Kind op Work.—Under section 29 of tie Vrooman Act as it existed under the statute in force on March 21, 1907, when once a street had been accepted, it must thereafter he both repaired and improved by the city, and it followed that' the city council of Oakland had no more authority, under a proceeding initiated by resolution of intentions adopted on March 21, 1907, to assess property owners to pay the cost of improving an accepted street' by constructing therein a new kind of pavement, curb, or gutter, than it had authority to assess the property for the repair of the street.</p> <p>Id.—Ordinance Accepting Street—Exception op Roadway Between Railroad Tracks.—Section 20 of the Vrooman Act must be read in connection with section 498 of the Civil Code, requiring, among other things, street railroad corporations to pave or macadamize the entire length of the street used by their tracks and for two feet on each side thereof, and between the tracks, and to keep the same constantly in repair, etc., and, therefore, an ordinance, by which the city of Oakland accepted the roadway of a street, but excepted therefrom the portion thereof required to he kept in repair by a company having railroad tracks thereon, was not rendered invalid by the inclusion of such exception in the ordinance.</p> <p>Id.—Acceptance op Roadway Includes Curbing. —• Acceptance of roadway of a street under section 20 of the Vrooman Act included the curbing, although curbing was not specifically mentioned.</p> <p>Id.—Evidence—Condition op Accepted Street at Time op Adoption op ■ Resolution op Intention.—Since a city had no authority either to make a new street or to repair the old one at the expense of property owners in the ease of an accepted street, the condition of the street at the time of the adoption of the resolution of intention was immaterial to the jurisdiction of the council to order the construction of a new roadway t'hereon, and the exclusion of evidence offered to show the condition of the street at such time was, therefore, not erroneous.</p> <p>Id.—Condition op Street at Time op Acceptance.—The court did not err in excluding evidence offered to- show that at the time of the adoption of the ordinance of acceptance the roadway of the street was improved with a different kind of curb, gutter, and pavement from that contemplated in the subsequent resolution of intention involved in the instant case.</p>

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

<p>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>Pleading — Complaint — Nonpayment—Defective Allegation Cured by Answer.—Although in an action to recover the agreed price of an article an allegation in the complaint that “the whole thereof is now due and owing from said defendant to said plaintiff,” may not, when standing alone, be a sufficient allegation of nonpayment', an answer specifically alleging that the amount of plaintiff’s demand had been paid in full, supplied the defect.</p> <p>Id,—Theory op Trial—Appeal.—"Where in such case the action has been tried on the theory that nonpayment was an issue in the case, the defendant cannot, on appeal, be heard to successfully question the sufficiency of the allegation in the complaint, in that respect.</p> <p>Sales—Price op Automobile—Liability op Corporation—Evidence. Where, on the trial of an action against a corporation for the agreed price of an automobile, it appeared from the evidence that although the bill of sale was taken in the individual name of one who was the manager of the corporation, the machine was at once put into use by him in the business of the corporation, and was so used for ten months until it was wrecked in a collision, when it was repaired at the expense of the corporation, the contention that the evidence is insufficient to sustain the finding of the trial court in favor of the plaintiff is without merit.</p>

<p>Mortgage—Action for Foreclosure—Fraud bt. Agent of Mortgagee. In an action by the assignees to foreclose a mortgage, where it appeared that the original owner of the property had conveyed it through one who acted as a dummy for her agent to another who, by means of fraud practiced by the agent for such owner, was induced to give Ms note secured by a mortgage, one-half interest in which note and mortgage went to the original owner of the land, and the other half interest to the agent’s dummy through whom she had conveyed it, that after she had assigned her half interest in the note and mortgage for a valuable consideration and it had passed by mesne assignments to the plaintiffs, the mortgagor having discovered and notified her of the fraud, she repudiated the act of her agent and agreed with the mortgagor that the whole transaction should be rescinded, and in order to effect such rescission, the mortgagor, at her request, conveyed the land to a trustee nominated by her, the conveyance being in express terms, made subject to the mortgage, and she at the same time causing the other half interest in the note and mortgage to be assigned to the same trustee, thus canceling that interest by merging it in the fee, the trial court erred in its findings and judgment in favor of the original owner, since as to the plaintiffs who were innocent parties, she, through her agent, must be deemed to have received the benefits of the transaction and must bear the burden.</p> <p>Id.—Liability of Principal.—Even, conceding in such case that the interest in the note and mortgage acquired by the plaintiff was not the interest assigned by the original owner of the land, but the interest' which originally vested in the dummy of the owner’s agent, nevertheless such owner was, as to the plaintiffs, in the same position precisely as though she had made the note to the plaintiffs, and executed the mortgage securing the same, since she must be deemed to have received through her agent the benefits of the transaction, and must bear the burden on the principle that no one can take advantage of his own wrong, and that where one of two innocent persons must suffer by the act of a third, he by whose negligence it happened, must be the sufferer.</p> <p>Id.—Non-negotiable Instrument—Defense of Fraud—Deficiency of Judgment.—Where the promissory note in such case was secured by mortgage, and the mortgage contained a clause under which the maturity thereof might be accelerated, the note was non-negotiable, and hence, notwithstanding the sale and transfer thereof before maturity, it was subject to the defense based upon the fraud practiced upon the maker (the mortgagor) in procuring it, and the trial court, therefore, properly refused to render a judgment for deficiency against him.</p>

<p>Public 'Contract—Bond—Indemnification of Surety by Contractor —Action by Surety.—Where a contractor t'o whom a contract for the erection of a municipal building for a city was awarded, applied for, and obtained from, the plaintiff, as surety, a bond conditioned for the payment of the claims of all persons furnishing materials or performing labor, if the contractors should fail to pay the same, and in the written application for such bond agreed to indemnify the plaintiff against all loss, costs, etc., which plaintiff might sustain by reason of having executed the bond, and the plaintiff, after the completion of the contract paid claims for labor and materials, in excess of the money due and collected from the city, together with costs and expenses, the plaintiff was entitled to recover from the contractors, on its express promise contained in its application for the bond, the amount so paid by the plaintiff.</p> <p>Id.—Consideration for Indemnity.—Even if it be conceded in such case, that the plaintiff surety could not have been compelled to make the payments which it made, its claim against the contractors as indemnitors finds full support' in section 1605 of the Civil Code, which provides "... any prejudice suffered, or agreed to be suffered, by such person [the plaintiff] other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor [the defendants], is a good consideration for a promise.”</p>

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

<p>Taxation—Stock of Foreign Corporation—Legal Title in Foreign Trustees—Situs.—Where a testator, owning stock in a foreign corporation, had in Ms lifetime transferred the legal title to nonresident trustees, domiciled where the corporation was organized, and where it had its principal place of business, and had^ given the trustees full power to hold, manage, and control the stock, vote it, and collect the dividends, and to sell, transfer, or otherwise dispose of it, the stock held by the trustees was property having its sit'us in the state of their domicile, and is not to be considered as within the jurisdiction of the taxing power, and his executor could recover from the county a tax assessed upon it in California which he had been required to pay.</p> <p>Id.—Double Taxation not Favored.—Double taxation is never favored unless clearly required by the statute of the particular state which claims that right.</p>

<p>Water and Water Bights—Adverse or Permissive Use—Evidence Conelicting-7-Appeal.—Where in an action involving water rights, the evidence upon which the lower court acted was sufficient to show the presence and operation of all the elements of adverse possession, even if it be conceded that there was some evidence that the use was permissive, the most that can he Said is that thereby a conflict was created, and the finding of the trial court on the issue is controlling.</p> <p>Id.—Title by Prescription—Extent op Bight.—Title by prescription, to the use of water, is measured by the manner and extent of the use, and does not attach to something else that may be deemed equivalent.</p> <p>Id.—Evidence—Extent op Use—Finding.—Evidence in a ease involving the right to divert water examined and found to justify the trial court in concluding that the waters of a creek had been appropriated and a certain ditch and flume used by the defendant under such circumstances and in such manner as to justify the inference that the defendant and his predecessors in interest were thereby claiming and assorting that' such privilege was a right appurtenant to their land, and that this use continued for a period longer than that required by statute to create a title by prescription.</p> <p>Id.—Finding and Decree—Finding too Indefinite.—Where in such case the finding of the court was that the defendant and his predecessors had continuously for a stated period, sufficient to establish a prescriptive right, used the waters of a creek to an amount “equal to a continuous flow” of twenty-four hours each day of two and one-half miner’s inches, and the decree awarded the right to divert and use “a continuous flow of 2% inches of water measured under a á-ineh pressure,” jhe court should have found definitely what quantity of water, if any, was thus continuously appropriated.</p> <p>Id.—Finding Unsupported.—Assuming that evidence warranted the conclusion that sixteen inches of water were used on defendant’s land for six hours daily for a sufficient period and under such circumstances as to create a prescriptive right, such evidence would not support a finding that such defendant used two and one-half inches of water continuously under a claim of right'; evidence should have been offered that the continuous use of the lesser quantity was equivalent to the intermittent use of the larger, and the facts fully found in accordance therewith.</p> <p>Id.—Estoppel—Doctrine Inapplicable.—In this action, it is held, in view of the defendant’s showing, that there is no merit in the claim that the doctrine of estoppel applied by reason of the fact that plaintiff was a public service corporation and defendant stood by and made no objection to the construction of its works and allowed without protest his property to be taken for public use.</p> <p>Id.—Bight to Use and Bight op Way—Distinction Between.—The right to the use of water is distinct from a right to convey it along a definite channel.</p> <p>Id.—Changing Point op Diversion — Statutory Appropriation or Prescriptive Bight.—With respect to the right tó change the point of diversion, there can be no difference in principle between the case of a statutory appropriation and a prescriptive right to the use of water. .</p>

<p>Criminal Law — Parent and Child — Failure op Father to Provide for Minor—Willfulness of Neglect Essential.—Willfulness and the absence of lawful excuse are essential elements of the offense of a parent omitting to furnish necessary food, eta., to a minor child, as defined in section 270 of the Penal Code.</p> <p>Id.-—Inability as an Excuse.—A parent who, without fault, is financially unable to support Ms minor child, cannot he justly charged x with willful failure in that respect.</p> <p>Id.—Payment by Parent of Debts.—A father having only a meager income should have devoted it' to his child rather than to have used it for the payment of his debts, if the child had been in need of the necessaries of life, but where the child was receiving from its mother all that it required for its support and comfort', the father’s conduct under the circumstances was not felonious,</p>

<p>Criminal Law—Intoxicating Liquors—Illegal Sales—Defendant's Failure to Testify—Misconduct of District Attorney.-—Where,' on the trial of a charge of misdemeanor committed by unlawfully maintaining and carrying on a place where intoxicating liquors were sold, the defendant was a witness in her own behalf, the district attorney was guilty of misconduct and violated section 1323 of the Penal 'Code by calling attention, in his address' to the jury, to the fact that, though placed upon the stand, she had not been asked by her attorney a question concerning any illegal sales of liquor, and the action of the trial court, in overruling the defendant’s exceptions to such misconduct, was prejudicial error requiring a reversal of a judgment of conviction.</p> <p>Id.—Protection of Defendant from Adverse Comment.—Section 1323 of the Penal Code protects a defendant against adverse comment upon his failure to testify, not only where he was not a witness, hut also where he was a witness but omitted to testify concerning some of the elements of fact at issue in the case.</p> <p>Id.—Circumstantial Evidence—Effect of Section 4% of Article VI of the Constitution.—In this case, the record, failing to show that the defendant had any knowledge of the illegal sale of liquor constituting the principal item of evidence for the prosecution, until after that transaction had been completed, and also failing to show that she had knowledge of any previous violations of the law by her agent until after they had occurred, and there being no direst. evidence that she ever advised or. approved the illegal acts, and she not residing and not being usually present at the place of business, the evidence was in effect circumstantial, and not so far conclusive as to warrant the appellate tribunal in using section 4y2 of article VI of the constitution as a ground for affirming the judgment.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura County, and from an order denying a new trial. Milton T. Parmer, 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>Quieting Title — Pleadings — Cross-complaint, When Unnecessary. Where, in an action to quiet title, the sole question in dispute is the location of the boundary line between the plaintiffs and the defendants, a judgment for or against the plaintiffs is conversely a judgment against or for the defendants; in such a case a cross-complaint is unnecessary, and if filed will be treated- by the court as an answer containing affirmative matter.</p> <p>Id.—Answer to Cross-complaint—Statute op Limitations—Finding Immaterial.—Where in such case the plaintiff has answered the cross-complaint, and has pleaded among other defenses thereto the statute of limitations, a finding on that plea is wholly immaterial, although the case was tried on the issues made by the pleadings filed, and the trial court found that the defendants were not barred by the statute.</p> <p>Id.—Boundaries—Agreed Line.—Where in an action to quiet title, it appeared that the joint owners of real property, who, in pursuance of an agreement to partition it, had exchanged deeds for undivided half interest's in -the north and south halves respectively, had immediately thereafter conveyed the south half to the plaintiffs, the grantors agreeing with the plaintiffs that as soon as a survey, which had been previously arranged for should be made, they would again exchange deeds, and it also appeared that shortly thereafter, the survey having been made, the plaintiff accepted the survey and went into possession of the tract as surveyed, and together with the owner of the north half, immediately erected a fence on the line run by the surveyor, both parties understanding that it was not necessary for them to make new deeds, and thereafter both the plaintiffs and the owner of the north half made conveyances based on the said survey, the line thus agreed on and acquiesced in was binding on and applicable to all parties to the agreement and their successors by subsequent deed.</p> <p>Id.—Mutual Mistake — Evidence — Parol Evidence Admissible.— Where in an action to quiet title the pleadings put in issue t'he mutual mistake of the parties in framing and executing their deeds, the trial court did not err in receiving parol evidence.</p> <p>Id.—Scope op Judgment.—Where in an action to quiet title in which the sole question in dispute was the location of the boundary line between the plaintiffs and defendants, and the trial court treated a cross-complaint filed by the defendant's as such and awarded relief accordingly, it is necessary to modify the judgment, but this may be done by striking out the affirmative relief and decreeing that the plaintiffs are not t'he owners or seised in fee of the land claimed.</p>

<p>Building Contract—Provision for Periodical Progress Payments— Contract not Separable — Account Stated.—A provision in a building contract to the effect that the defendant would make payment's: Seventy-five (75) per cent of the value of' the labor performed and materials incorporated on the premises, and in the said building and structures, as estimated by the defendant, less previous payments made, ev^ry three weeks commencing with the third week after the date of commencement of the work, does not operate to make the contract separable, so that the work done and materials furnished during each three weeks constitute a separate contract and the settlements at the end of eaeh three weeks accounts stated, but is merely a means provided by the contracting parties for estimating the amounts of the progress payments.</p> <p>Id.—Damages fob Breach — Interest.—Interest prior to judgment’ should not be allowed in an action for damages for breach of a building contract, the claim sued on being unliquidated, and the amount, until a trial is had, being only the pleader’s estimate.</p>

<p>Negligence — Personal Injuries — Collision or Motor Truck and Railroad Motor Car — Contributory Negligence.—In an action for damages for personal injuries sustained by plaintiff in a collision between a motgr truck operated by Mm and a gasoline motor car operated by defendant on its railroad track, a nonsuit on the ground of contributory negligence was properly granted at the close ' of plaintiff’s case, where it appeared from the evidence, and was admitted by the plaintiff íhat, with complete knowledge that he was approaching a railroad crossing, which he knew to be regularly in use, he drove Ms truck at a rate of speed so great that, as he Mmself knew, Ms maeMne was bound to go upon the defendant’s track, at all times after the moment of Ms first opportuMty to look for the train.</p> <p>Id.—Concurrent Negligence op Defendant Immaterial.—The fact that there was concurrent negligence on the part of the defendant does not, under such circumstances, aid the plaintiff’s ease.</p> <p>Id.—Crossing of Railroad Tracks—Gasoline Motor Cars—Degree of Care.—There is no reason why the requirements of care on the part of a person approaching the tracks of an interurban railway, on which gasoline motor, cars are operated, should be held to be different from the standard established for those seeking to cross the tracks of an electric railway.</p>

<p>REVIEW on Certiorari of a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trusts and Trustees — Involuntary Trust — Action to Charge Trustees—Laches.—Where in an action to charge the defendants as trustees under section 2224 of the Civil Code, the evidence shows, without conflict, that with full knowledge of all the facts, the plaintiff at first disclaimed any intention of asserting title, and did not, till three years, four months, and thirteen days thereafter attempt to assert any title, and the record does not contain any excuse for- this great delay, these ' facts found by the court constitute a complete defense and the trial court properly found that the plaintiff’s claim was barred by the plaintiff’s laches.</p> <p>Id.—-Length of Time Necessary to Constitute Laches—Discretion of Court.—The question of what length of time will constitute a defense on the ground of laches must necessarily be determined by the circumstances of each ease, and is addressed to the sound .discretion of the chancellor.</p>

.APPEAL from a judgment of the Superior Court of Los Angeles County, ,and from an order denying a new trial. L. T. Price, Judge Presiding. The facts are stated in the opinion of the court.

<p>Husband and Wipe—Separation Agreement—Husband’s Agreement • to “Depart por Switzerland” — Breach by Returning to California—Action by Husband on Contract.—Where, in a separation agreement between a' husband and wife, the husband agreed to leave his wife’s abode and “depart for Switzerland,” and at no time thereafter to molest her or approach her against her will, in consideration of her paying him certain moneys for his expenses to •Switzerland, and sending him thereafter a remittance of $25 monthly, the term, “depart for Switzerland,” did not mean temporary visits, but had reference t'o permanent visits, and such contract was broken by his returning from Switzerland to California, and continuing to reside there, and, by reason of such breach, he was not entitled to recover in an action on the contract' for the payment of the amounts of the agreed remittances.</p>

<p>Husband and Wipe—Property Held by Wipe in Trust por DaughiTERS.—In this action to quiet title the evidence in the trial court is held sufficient to justify the trial court in holding that one of the defendants merely held the property in trust for the plaintiffs.</p> <p>Id.—Homestead — Trust Property.—A homestead cannot be legally declared on trust property.</p>

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

<p>Estates of Deceased Persons—Claim Against Estate—Partnership—Insufficient Affidavit.—An affidavit to a claim of a partnership against an estate of a deceased person, reading ‘Took Hing Lung Co. . . . being duly sworn,” etc., stating the nature of the claim, that it is partly due, that it' is therewith presented, etc., ‘‘that there are no offsets to the knowledge of said claimant,”. and signed “Fook Hing -Lung Co. by Gee Chong Pong, Member & Clerk of said Co.,” is insufficient, since it purports to be made by one incompetent to make it, to wit, the partnership.</p> <p>Affidavit—-Test of Sufficiency.—A test of the sufficiency of an affidavit is whether it is so clear that an indictment for perjury may be sustained on it if false.</p>

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

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

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

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

<p>Mechanics’ Liens—Failure to File Notice of Completion—Time for Filing Claim of Lien.—Under section 1187 of the Code of Civil Procedure where no notice of completion was filed, lien claimants had ninety days after actual completion within which to file their claims.</p> <p>Id.—Foreclosure—Pleading—Time of Completion Uncertain—Effect of Stipulation.—Although an allegation in a complaint for the foreclosure of a mechanic’s lien that the building was completed on or about a day mentioned renders the pleading open to demurrer for uncertainty, yet in view of the fact that at the trial it was stipu ■ lated by all the parties that the building was in fact completed on that day, the defendant cannot be said to have been prejudiced in any substantial right by the overruling of the demurrer, nor by the form of the finding in which the court found the completion on or about that date.</p> <p>Id.—Interest.—In an action for the foreclosure of a mechanic’s lien, interest is allowable from the date of completion.</p>

<p>Trustee—Action por Services—Accounting—In this action to recover for services rendered by one who during the minority of the defendants had collected and disbursed the monthly allowance made by the probate court through the guardian of their estates, and also rents, profits, and sales moneys, and had also paid taxes, insurance, and repairs, it is held, that the plaintiff was not bound by an account rendered by the guardian of the minors.</p> <p>Id.—Compensation.—In such case the plaintiff was entitled to the same compensation for his services as an executor.</p> <p>Id.—Pleading—Answer Demanding Accounting.—An answer in such ease setting up as an affirmative defense that the plaintiff had received and expended large sums of money for the defendants, that an accounting had been asked and not rendered, and praying for a complete and full accounting, was tantamount to a cross-complaint for an accounting.</p>

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

<p>Criminal Law — Murder — Defense of Alibi—Identification of Defendants — Conflict of Evidence. — Although witnesses, both Chinese and Caucasians, including prominent members of the police force of the city of Stockton, testified positively that the defendants were in that city at the time the murder with which they were charged, and of which they were found guilty, was committed in the county of Butte, nevertheless, there having been abundant evidence for the prosecution of the identification of the defendants and that they committed the crime, the identification of the defendants, and the disposition of the witnesses to tell the truth, were considerations entirely for the determination of the jury, and an appellate court is not permitted to hold that the verdict of conviction is unsupported.</p> <p>Id.—Claim of Incompetency of Juror — Misunderstanding of Instructions—Waiver.—Where on a trial of a prosecution for murder, after the case had been submitted, but before verdict, a colloquy took place between the court and one of the jurors indicating that the latter had not at first understood all the instructions given by the court, whereupon by direction of the court the instructions were again read to the jury, the defendants, by failing to request permission to question the juror further to ascertain the extent of his misunderstanding, that he might be enlightened, and by not even asking that the jurors be polled when they returned with the verdict of conviction, waived all privilege thereafter to urge the ineompetency of the juror.</p> <p>Id.-—Redirect Examination.—The defendants were not prejudiced by the sustaining of an objection to a question asked in their behalf on redirect examination of one of their witnesses, when the witness had already answered the same question on cross-examination.</p> <p>Id. — Incompetenoy of Defendant’s Counsel. — Where on appeal in such case it is argued as a ground for reversal of a judgment of conviction that defendants’ counsel was mentally unfit to conduct the trial, and in support of such ground it is urged that the counsel referred to committed suicide about one month after the conviction of the. defendants, the appellate court cannot take judicial notice of the death of such counsel.</p>

<p>Evidence—Hearsay—Bes Gestae—What Admissible as.—Under the . doctrine of res gestae, evidence is admissible of extra judicial declarations, tending to” explain or show the character, motive, or purpose or intent of a transaction, itself in dispute, which, under other or ordinary circumstances, would be excluded as hearsay or self-serving.</p> <p>Id.—Limitation on Bule.—Since the rule relating to res gestae constitutes an exception to the general rule excluding hearsay, it must be confined in its application strictly to the circumstances or conditions giving rise to the reasons for the recognition of that class of testimony as a legal method of proving a fact.</p> <p>Criminal Law—Murder—Defense of Alibi—Exclusion of Declaration of Defendant.—In a prosecution for murder, where the defendant relied upon an alibi as a defense, the exclusion of evidence of a declaration of the defendant, a Chinese, of his intention of going to a certain place, although such evidence was admissible under the rule of res gestae, did not warrant the reversal of a judgment of conviction in view of section 4% of article VI of the constitution, when the appellate tribunal could not perceive how the excluded testimony could have added any more support to the alibi theory than it derived from the testimony of an unimpeached white witness whose testimony had been received.</p> <p>Id.—Witness for Defendant—Conducting Unlawful Business — Cross-examination Unprejudicial.—Where a witness for the defendant in such case had testified on his direct examination that he was conducting a laundry, cross-examination as to whether he had ever conducted a lottery business was not ground for objection in an appellate court, especially in view of the fact that no objection to the first question on that line of cross-examination was made at' the trial, and that later an objection to the last question on the same 'line was sustained, and it appearing, moreover, that the defendant was not prejudiced, since the witness had denied positively that he had over conducted a lottery business.</p> <p>Id.—Receiving Evidence Out of 'Coübt—Newspaper Publication of Rumobs—Motion fob New Tbial.—The trial court did not err in denying a motion for a new trial made on the ground that the jury received evidence out of court, where the affidavit of the defendant in support of the motion stated on his “information and belief” that the jury heard and took notice of a common rumor published in a newspaper and read newspaper articles to the effect that the defendant intended to plead guilty, but there was no positive showing that the jurors or any of them read the articles, or that they were prejudiced or influenced to find against the defendant by reason thereof.</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>Negligence — Common Carrier — Duty to Passenger.—A carrier of persons for reward must use the utmost care and diligence for their safe carriage.</p> <p>Id.—Injury to Passenger — Stage Going Ope Grade — Burden op Proof.—In an action against a common carrier for damages sustained by a passenger on defendant’s stage, which went off the grade, the burden of proving itself free from negligence rested on the defendant after the plaintiff had introduced evidence showing the circumstances surrounding the injury to the passenger.</p>

<p>Employer and Employee—Unsafe Machinery—Injury to Foreman —Action for Damages—Finding Sustained by Evidence.—In this action by an employee against his employer to recover damages for injuries sustained through the imperfect and unsafe construction of certain lumber-mill machinery, which he was employed t'o operate and oversee, a finding that the machinery in question was imperfectly and improperly constructed, and was defective and unsafe, is held to be sustained by the evidence.</p> <p>Id.-—Defendant Warned by Plaintiff of Unsafe Condition—Promise to Repair.—In the same ease it is also found that the evidence support's a finding that the defendant was warned by the plaintiff of the unsafe condition of the machinery and promised to repair the same, but failed to do so.</p> <p>to.—Facts Warranting Conclusion of Employer’s Liability.— Where, in such case, the plaintiff was employed by the defendant to oversee and keep the mill running, he was furnished with defective and unsafe machinery which he had no authority t'o correct; he asked permission to make necessary changes, which was denied, although he was promised that these defects would be remedied; and he was' at work in connection with said machinery in discharge of his duty when he received a serious injury by reason of such defective construction, these fact's warranted the conclusion that the defendant was legally responsible for the damage suffered by the plaintiff.</p> <p>Id.—Employers’ Liability Act of 1911 — Assumption of Risk and Contributory Negligence — Employee’s Knowledge of Defects. Under the Employers’ Liability Act of 1911 (Stats. 1911, p. 796), which, at the time of the accident involved in this action, was in force] and which changed the rule theretofore existing as. to assumption of risk and contributory negligence, the obligation of tie employer was not neutralized nor affected in any manner by the plaintiff’s knowledge of the defects in the machinery.</p> <p>Id.—Continuing in Employment With Knowledge op Defects in Machinery — Notice by Employee to Employer — Employer’s Promise to Bemedy.—In a case where the employee notifies an employer of the defects, in machinery on which the employment of the former requires him to work, and the employer promises to remedy such defects the employee is justified in continuing in the employment upon the faith of the promise, and the employer is deemed to have assumed the risk of the work, unless the danger arising therefrom is so glaringly obvious that no prudent man would undertake it, even under the direction and promise of the employer.</p> <p>Id.—Contributory Negligence—Burden of Proof,—Even where contributory negligence is pleaded and may be considered as a defense, the burden of proof is on the defendant to establish it.</p> <p>Id.—Duty to Correct Defects.—Under the facts shown and found in this action, it was not the duty of the plaintiff to correct the defects in the machinery, and he was not authorized to do so.</p> <p>Id.—Duty; of Foreman—Performing Work of Absent Employee.—• It is a fair inference from the testimony of the plaintiff (the foreman) “that it was his duty t'o see that tho mill continued to operate, and that if he observed the work being neglected in any way, it was incumbent upon him to see that it was properly attended to,” that he was “in the discharge of his duty” at the time of the accident, although he was then performing the work of the “slasher-man,” who was absent.</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>Telegraphs and Telephones—Injury to Transbay Cable—Negligence-Principal and Agent—Joint Liability.—In an action by a telegraph and telephone company against two defendants to recover damages for the destruction of its cable, laid in San Francisco Bay, where it appeared that the plaintiff had marked by monuments and given notice of the location of the cable in compliance with sections 536-540 of the Civil Code, and that the cable had been destroyed by the want of care of one of the defendants, which had been employed by its codefendant to drive certain piles, a judgment against both defendants should be affirmed, the employing defendant' being responsible as principal for the act of its agent under section 2338 of the 'Civil Code, even though the act was wrongful in its nature, and the defendant that negligently drove the piles being also liable' under section 2343 of the Civil Code, because the act complained of was wrongful in its nature.</p>

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

<p>APPEALS from orders of the Superior Court of Contra Costa County. A. B. McKenzie, 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 Los Angeles County, and from an order denying a new trial. Paul J. McCormick, 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—Finding—Conflicting Evidence.'—An appellate court will not disturb a finding which rests on conflicting testimony.</p> <p>Fraudulent Conveyance—Creditor’s Bill—Judgment Supported by Findings.—In an action in the nature of a' creditor’s bill, findings , that the transfer under attack was made voluntarily, and without a valuable consideration, at a time when the grantor was insolvent, fully support a judgment for the plaintiff.</p>

<p>Open Book Account—Account Stated—Evidence.—In an action by the assignee of the manager of a corporation against the corporation, upon an open book account and upon an account stated, books kept by the assignor himself, in which the entries, with the exception of two or three items, were made contemporaneously with the transactions, and in- which the items were correctly entered, were properly admitted in evidence, although there seemed to have been some inconsistencies in such books.</p> <p>Contract—Continuance in Employment—Presumption as to Salary. Where a person, hired at a fixed salary, continues in the said employment without any new contract, the presumption is that the continued employment is at the same salary.</p> <p>Account Stated—Failure to Make Timely Objections.—An account rendered to a debtor becomes an account stated and the foundation for an independent cause of action thereon, when, after the lapse of a reasonable time, no objection has been made thereto.</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>Fraternal Insurance — Change op Beneficiary — Mental In competency op Insured—Sufficiency op Evidence.—In this action to cancel a certain certificate of insurance issued by a fraternal insur. anee society and to declare a prior policy in full force and effect, upon the ground that at the time the new policy was issued and the consequent change of beneficiaries was made thereby, the insured was of unsound mind, and, therefore, incapable of making a valid designation of a beneficiary, the evidence is examined and held sufficient to sustain a finding of the mental ineompeteney of the insured at the time.</p>

<p>Homestead—Attachment.—Under section 1241 of the Civil Code, a debtor has a clear right to defeat his creditor’s attachment on the debtor’s real property, by impressing it with the character of a homestead at any time prior to a lien being fixed upon the premises by judgment obtained.</p> <p>Id.—Residence—Intention—Good Faith.—Merely going through the forms necessary to the establishment of a homestead is not sufficient; there must be the element of good faith and a present intention to make the premises the residence, home, and abiding-place of the declarant and his family.</p> <p>Id.—Occupancy and Intention.—The physical fact of occupancy and the intention with which the premises are occupied are both elements to be considered in determining the actual residence.</p> <p>Id.—Change of Residence—Intent to Defeat Creditors.—A debtor has the right to move to premises, on which he desires to establish a homestead, for the sole purpose of defeating a creditor’s claim, but such right is dependent upon a bona fide intention to make the place his residence and home.</p> <p>Id.—Evidence of Intention.—In an action to have a homestead claimed by the defendant, declared void, the trial court was not bound to accept as conclusive the defendant’s testimony that he moved to the premises with the intention of making the house erected there his home, if other facts and circumstances were inconsistent with such intentions.</p>

PROCEEDING in Certiorari to review an order of the . Superior Court of the City and County of San Francisco, recalling a writ of execution. Daniel C. Deásy, Judge. The facts are stated in the opinion of the court.

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

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

<p>Municipal Corporations—Harbor Commissioners—San Diego Bat— Wharf Privilege—Grant bt Commissioners—Confirmation by • City.—Under section 2606 of the Political Code, which, in 1905, gave the harbor commissioners of the bay of" San Diego" authority to grant permits to private persons to build and maintain wharves in the bay of San Diego, but directed that all such permits should contain a reservation of a right in the commissioners to terminate the franchise at any time and to purchase any wharf, etc., at a price to be fixed by arbitration as provided in that section, and further provided that in fixing such value the franchise or privilege should not be considered as of any value, and that “no franchise granted within or bordering upon the corporate limits of any city shall be valid until the same shall be ratified and confirmed by an ordinance of such city,” the city of San Diego could ratify and confirm or reject a grant by the harbor commissioners of a permit or franchise for a wharf within the corporate limits of that city, but could not ratify wpon condition, since the law vested in the harbor commissioners the right to prescribe the conditions under which the wharf privilege should be enjoyed.</p> <p>Id.—Confirmation Ordinance — Invalid Conditions.—Conditions attached to an ordinance of the city confirming the grant by the harbor commissioners of a wharf privilege, such as limiting the time within which the wharf should be built, and providing that the city should have the right to vacate the confirmation at its pleasure, were of no effect, and the confirmation must be deemed absolute and stripped of all conditions, the latter being void for want of jurisdiction.</p> <p>Id.—Act of 1911—Transfer and Delegation of Power to City.—The act of May 1, 1911, (Stats. 1911, p. 1357), gave the city of San Diego complete charge of the tide and submerged land, at least to the pierhead lines, to the uttermost limit to which wharves could be legally constructed in the harbor, under federal permission, and the delegation by the state to the city, by that act, of its power over the tide and submerged land in the bay of San Diego was as complete as it was possible for the state to make it.</p> <p>Id.—Wharf Franchise—Rights of City in Conditions.—As a necessary incident of the grant or transfer to the city of San Diego of the powers of the state by such act of May 1, 1911, there was transferred to the municipality, as substituted for the board of harbor commissioners, the right to take advantage of any condition reserved for the benefit of the state in a wharf franchise theretofore granted by the harbor commissioners and the city, therefore, had the right to terminate such a wharf franchise and take possession of the ground upon payment of the value of the wharf only.</p> <p>Ib.—Termination of Wharf Franchise — Compensation — Right of Possession.'—Upon the determination of the proper authority that such a wharf franchise shall terminate, the right granted ends, and there is left only the matter of adjustment of compensation between the franchise holder and the representative of the state, and when this compensation is fixed, the state is entitled to the possession of the ground and wharf.</p> <p>Id.—Action by Franchise-holder.—Where, in an action by the owner of such a wharf privilege against the city to restrain it from preventing the plaintiff’s workmen from raising the wharf structure above the level of a fill, which the city, in the course of a public improvement was constructing, by filling in the shallow tide waters of the bay above and below portions of the wharf structure, it appeared that the city had in effect declared the franchise terminated at a date long prior to the acts complained of, but had not proceeded to have its arbitrators appointed in order to fix the compensation which the plaintiff was entitled to have fixed before possession was relinquished of the wharf franchise, then at the time of the commission of the acts complained of, the plaintiff still held the right to the possession of the wharf in the place where it was located.</p> <p>Id.—Injunction not Proper Remedy.—In such ease, however, in view of the provisions of section 526 of the Code of Civil Procedure, and section 3422 of the Civil Code, the conditions were not such as to warrant the court in restraining interference with the possession of the plaintiff, and a judgment denying the injunction prayed for was proper.</p>

<p>Pleading—Defective Answer—Negative Pregnant—-When Cured by Trial.'—-Even if an attempted denial in an answer is defective because pregnant with an admission of a material fact alleged in a complaint, the defect is cured when the plaintiff has without objection gone into the trial of the issue as fully and effectually as though a proper joinder thereof had been raised by the pleadings.</p> <p>Payment—Presumption as to Agreement to Return.—It does not follow from the mere fact that one person has delivered money or property to another that the latter has agreed to return it, the presumption under subdivisions 7 and 8 of section 1963 of the Code of Civil Procedure being that money paid by one to another was due to the latter, and that a thing delivered by one to another belonged to the latter.</p> <p>Parent and Child—Earnings and Services op Minor—Bight op Parent.—The parents of a minor are entitled to his services and earnings during the whole period of his minority, unless he is emancipated and so invested with the right to his own services and the fruits thereof by some legally recognized act of emancipation by the parents.</p> <p>Id.—Action by Child Against Parents—Burden op Proop op Emancipation.—In an action brought by a child against his parents, after attaining his majority, to recover his earnings, received by the parents during his minority, the burden rested upon the plaintiff to show that he was duly emancipated by his parents during the period of his minority.</p> <p>Id.—Absence op Agreement op Parents to Return—Suppiciency op Evidence.-—In this action against the parents to recover the earnings of the_ plaintiff received by them during his minority upon an alleged agreement of the parents to save them and return them to the plaintiff, the evidence is examined and held sufficient to sustain a finding that there was no such agreement.</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>Action to Set Aside Deed—Security eor Prior Loan—Alleged Fraud —Evidence.—In an action by an administrator to set aside, as fraudulent, a deed made by the intestate to Ms brother, evidence to the effect that the decedent, fearing that Ms wife might commence a divorce suit and involve the property in litigation, executed the deed to secure Ms brother for advances theretofore made, does not establish that the transaction was fraudulent.</p> <p>Id.—Failure to Find on Material Issue.—Where in such case, the plaintiff claimed title by adverse possession, acquired after the making of the deed to the brother, and also that such deed had not been delivered, and the court found in favor of the plaintiff on those issues, the failure of the court to find on an issue set up by the defense that the brother had bought the property from the decedent was error necessitating a reversal of the judgment, since, if the brother did in fact pay the decedent for a conveyance qf the property, notwithstanding the other findings in plaintiff’s favor, he would not be entitled to' a decree quieting title without repayment of the consideration. .</p> <p>Quieting Title—Equity—Belief.—A party seeking to quiet his title to realty or to remove a cloud thereon, will, as a condition precedent to the relief, be compelled to do equity. ‘ ,</p> <p>Attorney and Client—Privileged Communication.—A statement made to an attorney with the express intention that it is to be communicated to another is not privilege^.</p> <p>Id.—Evidence—Execution of Deed.—An attorney who acts as a conduit, through which a deed is executed, may testify as to the circumstances attending its execution.</p>

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

<p>Physicians and Surgeons — Malpractice — Erroneous Diagnosis — Failure to Use Ordinary Skill and Care—Sufficiency of Evidence.—In this action for damages resulting from defendant’s alleged unskillful treatment as a physician and surgeon of an injury to plaintiff’s arm, it is held that the verdict is supported by the evidence, which shows that the defendant made a faulty and erroneous diagnosis of the injury, and adhered to it during the period of his treatment, and that such error could have been avoided by the exercise of ordinary care and skill.</p> <p>ID.—Impeaching Witness—Objection Properly Sustained.—A physician who was a witness for the plaintiff, having testified that he had examined the plaintiff while still under defendant’s care, and discovered at once by visual and digital, examination that his forearm was fractured, and had confirmed this by the X-ray, tjiat the usual and recognized method of examination among the profession of such injuries as that in question, for the purpose of diagnosis, is by the X-ray, and the failure to use it would not be the exercise of ordinary skill and care, although he had treated patients with dislocated and fractured forearms without examination by the X-ray, and that in case of pure dislocation the X-ray was not essential, an objection to an offer by the defendant to show by a patient of the witness, for the purpose of discrediting his testimony, that he had treated this patient without resort to the X-ray, was properly sustained.</p> <p>Id.—Misconduct of Counsel—Repeating Questions Already Ruled Out.—It was improper for plaintiff’s attorney to repeat in another form questions already ruled out by the court and thus endeavor to get before the jury in another form che matter ruled out, but the matter having been stricken out and the court having instructed the jury to pay no attention to it, an appellate court must assume that the jury obeyed the court’s instructions.</p> <p>Id.—Requested Instruction.—The court, having ut the request of the defendant, instructed the jury that the burden rested upon the plaintiff to prove certain material allegations of the complaint, the omission to tell the jury in that instruction that the plaintiff must prove his allegations “by a preponderance of the evidence” was not of sufficient importance to justify a reversal. '</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. . Wm. N. Dehy, 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>APPLICATION for Writ of Habeas Corpuh directed to the Warden of San Quentin State Prison.</p> <p>The facts are stated in the opinioM of the court.</p>

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

<p>Municipal Corporations—San Diego Charter—Board of Education —Recall.—Under the charter of the city of San Diego, the right to recall members of the board of education equally with the right to elect such members is vested in the city.</p> <p>Id.—Mandamus.—The city auditor of San Diego may be compelled by mandamus to make his certificate, ás prescribed by section 14 of chapter 2 of article II of the charter, to the effect that the indebtedness to be incurred under a resolution calling a primary election for the purpose of nominating candidates for the offices of members of the board of education in case the incumbents be recalled at a recall election, might be so incurred without the violation of any charter provision.</p>

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

<p>Criminal Law—Habeas Corpus—Scope op Writ—Errors op Law Resulting in a Conviction not Reviewed.—The writ of habeas corpus is not a writ of error or a mode whereby errors of law occurring at a trial may be reviewed, its sole function and the full scope of the inquiry authorized to be prosecuted through its instrumentality being the question of jurisdiction, so that a judgment of conviction and sentence, unless void upon its face, will stand against the writ of habeas corpus, even though during the trial culminating in such judgment many errors prejudicial to the rights of the prisoner may have been committed.</p>

<p>Public Utilities Act—Electric Corporation—Sale op Properties— Specific Performance — Pleading — Demurrer.—A complaint, in an action by one electric corporation against another electric corporation for the specific performance of a contract by the defendant to convey its properties to the plaintiff, which fails t’o allege that there has been secured from the Kailroad Commission of the state of California an order authorizing the defendant to sell to plaintiff as required by section 51 of the Public Utilities Act, does not state a cause of action.</p>

<p>Irrigation District — Organization — Notice of Proceedings — Due Process of Law.—In order to satisfy the requirement that jurisdiction over a proceeding leading to the organization of a public corporation, such as an irrigation district, must be obtained by “due process of law,” the statute must provide for some kind of reasonable notice to persons legally interested in the subject matter of the proceeding, and, in providing for such notide, the legislature must require all that is essential to constitute “due process of law,” as that phrase is used in the fourteenth amendment' to the constitution of the United States, and in section 13 of article I of the constitution of this state.</p> <p>Id.—Power of Legislature—Finding of Notice.—The legislature has no power to destroy the effect of such essential requirements by providing that a finding by a subordinate legislative body that due ■notice has been given shall be conclusive.</p> <p>Id.—Publication of Notice—Errors and Omissions of Names.—The legislature in -providing by the act of March 31, 1897, for the organization of irrigation districts (Stats. 1897, p. 254, Deering’s General Laws, Act No. 1726, edition 1915), was not bound to require that the' names of all persons who sign a petition proposing the organization of an irrigation district should appear in the published notice of the meeting at which the petition would be presented to the board of supervisors, but, if it did make such requirement, it had power to provide that errors in names or omissions of names should not vitiate the proceedings.</p> <p>Id.—Proceedings not Involving Assessments—Liberal Construction.—Proceedings having relation only to the organization of an irrigation district and not involving any assessment against property are not subject to the rule of strict construction.</p>

<p>Criminal Law—Intoxicating Liquors—Local Option—Selling and Furnishing Whisky—Information.—An information charging a defendant with violation of the “Wyllie Local Option Law” (Stats. 1911, p. 602), in that he did unlawfully “sell and furnish” whisky to a person named, in a city which was then “no-license territory,” did not charge two separate offenses of “selling” whisky and “furnishing” whisky, and orders overruling a demurrer to such an information and denying a motion to compel the district attorney to elect on which charge the defendant should be tried were not erroneous.</p> <p>Id.—Instructions.—Eefusals of requested instructions were not prejudicial when the instructions requested were sufficiently covered by others already given, or merely involved an amplification of the rule of reasonable doubt, which the court had explained to the jury in language which could not be misunderstood.</p>

<p>Criminal Law—Appeal — Failure to File Brief — Affirmance of Judgment.—Where on an appeal from a judgment and order denying a new trial in a criminal case the time for filing appellant’s brief has elapsed and no extension has been granted, the appellate tribunal must assume that the appeal has been abandoned, and the judgment will be affirmed for want of prosecution.</p>

<p>Criminal Law—Burning Insured Property—Intent to Defraud.— In a prosecution under section 548 of the Penal Code for the crime of willfully burning insured property, intent to defraud the insurer is of the essence of the crime, and no such intent could exist without knowledge on the part of the insured that the property was insured.</p> <p>Id.—Evidence—Knowledge of Defendant.—In this prosecution for burning insured property with intent to defraud the insurer, the evidence is examined and found sufficient to fix the burning of the property on the defendant and to warrant the inference that he knew of the existence of the insurance policies.</p> <p>Id.—Misconduct of Counsel — Bemarks in Closing Argument — Prejudice not Shown.—Prejudicial error cannot be predicated on statements of the district attorney in his closing argument, where the objectionable remarks are not set' forth, and especially where the court promptly, on defendant’s request, admonished the jury to pay no heed to the remarks.</p>

<p>Criminal Law — Erroneous or Invalid Indeterminate Sentence — Besentenoe—Jurisdiction.—Where an indeterminate sentence is erroneous or invalid for the reason that the crime of which the defendant was found guilty was committed before the indeterminate sentence law took effect, the trial court did not lose jurisdiction to resentenee the defendant by a proper or valid judgment, notwithstanding the time within which, under section 1191 of the Penal Code, sentence was required to be pronounced after a plea or verdict of guilty had passed when the latter sentence was imposed.</p>

<p>Schools and Sohool Districts—Use of Schoolhouses fob Social Dances—Civic Center Act.—A social dance is a “recreational activity,” for which a board of education may permit the use of a schoolhouse in accordance with the provisions of the Civic Center Act (Stats. 1913, p. 853)., and subdivision fourth of section 1617 of the Political Code.</p>

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

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

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

<p>Criminal Law—Murder—Evidence Insufficient.—In tBis prosecution for murder, a verdict finding the defendant guilty of- manslaughter was unsupported by the evidence, which was purely circumstantial and of such an unsubstantial nature as to amount to no proof at all.</p>

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

<p>Negligence—Personal Injuries — Action for Damages — Contributory Negligence—Sufficiency of Answer^Theory of Trial.— In an action for damages for personal injuries which was tried on, the theory that contributory negligence of the defendant was in issue, the sufficiency of the answer to present such issue cannot be questioned for the first time on appeal from a judgment for the defendant.</p> <p>Id.—Instructions—Presumptions in Favor of Eecord.—Where in such case the bill of exceptions does not contain all the instructions given, but only those the giving and refusal of which are assigned as error, an appellate tribunal will assume that if the whole charge of the court were before it, it would not show error, but that any imperfections of instructions were harmonized and the law was correctly stated.</p>

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

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

<p>False Imprisonment — Pleading — Insufficiency of Complaint.—A complaint in an action for false imprisonment, which does not show that t'he plaintiff’s arrest was not under legal warrant, does not state a cause of action.</p> <p>Malicious Prosecution.—A complaint in an action for malicious prosecution of a proceeding charging the plaintiff with insanity, which does not show that the insanity proceeding has terminated, does not state a, cause of action.</p> <p>Appeal—Judgment-roll—Insufficient Complaint—Miscarriage of Justice.—Where an appeal from a judgment, after answer and trial, is brought up on the judgment-roll alone, and it appears that the complaint does not state a cause of action, the judgment cannot be sustained on the theory that it cannot be ascertained from the record that the error has resulted in a miscarriage of justice, and that the judgment is therefore protected by section 4% of article VI of the constitution.</p>

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

PROCEEDING in Mandamus to compel the sheriff of Los Angeles County to proceed with a sale under an execution. The facts are stated in the opinion of the court.

<p>Appeal—Alternative Method—Transcript.—On appeal from a judgment denying a peremptory writ of mandate against a judge of a police court, where the transcript, purporting to be prepared under the alternative method permitted by sections 953a-953e of the Code of Civil Procedure, contains, in addition to a certified copy of the judgment-roll and notice of appeal, a statement, certified by the clerk, of testimony and proceedings in the police court purporting to have been received in evidence in the superior court, the transcript is not, as to such additional matter, duly certified, it not having been transcribed by the court reporter, and not appearing to have been duly certified by the judge of the superior court.</p> <p>Id.—Grounds of Reversal not Shown.—Where grounds of reversal, relied upon by the appellant in such case, cannot be examined without referring to a record purporting to have been made in the police court, and the transcript showing that record as evidence received in the superior court has not been settled by the. judge of the superior court who tried the ease, no grounds for reversal appear, and the judgment will be affirmed.</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>Waters and Water Eights—Surface Water—Drainage—Basement. The owner of the land has an easement to have the surface wafer thereon flow on to the land of a lower adjoining owner in its natural course by its accustomed channel, but he cannot accelerate the flow by means of artificial ditches, or increase the drainage to the injury of the lower owner.</p>

<p>Cbiminal Law—Mubdeb—Evidence Justifying 'Conviction.—On this appeal from a judgment convicting the defendant of murder the evidence is found overwhelmingly conclusive.</p>

<p>PETITION for a Writ of Habeas Corpus.</p>

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

<p>Vendor and Vendee—Vendee in Possession—Ejectment by Vendor —Denial oe Vendor’s Title—Striking Out Answer.—In an action by a vendor against a vendee in possession of land under a contract to recover possession of the land, for nonperformance of the contract by the vendee, a motion to strike from the answer of the defendant a denial that at the date of the contract, the plaintiff was the owner and in the quiet, peaceable, and exclusive possession of the land was properly granted, since the vendee in possession under a contract of sale, cannot deny the title of the vendor in an action of ejectment.</p> <p>Id.—Eights of Vendor and Vendee on Default of Vendee.—A vendee under a contract for the purchase of real property cannot continue to hold possession after making default in the agreed payments, regardless of whether the vendor has title or not; the vendee cannot refrain from making payments as by the contract provided and continue to hold possession of the land; nor can the vendee under any circumstances be entitled to the return of the money theretofore paid while he continues in possession of the land; nor can he, after making default in his payments without 'legal excuse, recover any money he may have paid while the vendor was not in default, except when there has been a mutual rescission.</p> <p>Id.—Defaui/t of Vendee—Detention by Vendor of Moneys Paid— Express Contract Unnecessary.—Under a contract for the sale of land the vendor, on default of the vendee, may retain all moneys previously paid, although the contract does not contain an express agreement to that effect.</p> <p>Id.—Rescission — Notice of Forfeiture.—On default by the vendee under a contract of sale, notice by the vendor of forfeiture of the contract and demand for the return of possession of the land do not constitute a rescission of the contract.</p>

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

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

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

<p>Criminal Law — Uttering Check Without Funds — Intent to Defraud—Evidence.—Evidence that a defendant drew a check on a bank in which he knew he had no funds or credit, and presented it to and obtained the amount thereof from another bank, warranted the inference that he intended to defraud the latter of the money obtained.</p> <p>Id.—Indorsement by Third Person—Payment by Indorser.—The circumstances in such case, that before presenting the cheek to the bank from which he obtained the money, he procured it's indorsement by a third party who- afterward paid the cheek, in no way militates against the reasonableness of the inference that the defendant, at the time he obtained the money on the check, intended to defraud the bank from which he obtained the same.</p> <p>Ib.—Secondary Evidence of Bank’s Books.—Evidence by the “credit remittance” man of the bank on which such check was drawn to the effect that he had examined the books of that bank and that the defendant at the time such check was drawn had no account or credit in that bank, was competent under subdivision 5 of section 1855 of the Code of Civil Procedure.</p>

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

<p>Quieting Title—Possession as Sole Basis of Plaintiff’s Claim.—In an action to quiet title under section 1006 of the Civil Code, as it existed prior to its amendment in 1915 (Stats. 1915, p. 933), where the sole basis of the plaintiff’s claim was possession taken immediately before the commencement of the action, with the intention of commencing suit, if the defendant had possession of the land at the time plaintiff or his attorney intruded thereon, no cause of action would arise in plaintiff’s favor.</p> <p>Id.—Possession by Defendant—Paper Title—Evidence.—In this action to quiet title the evidence is held sufficient to show paper title in defendant to part of the tract in question.</p> <p>Id.—Deed—Possession by Grantee of Part of Land Conveyed—Constructive Possession of Entire Tract.—Although actual possession is taken by a grantee of only a part of the land described in a conveyance, he is deemed to be in possession of the whole. •</p> <p>Id.—Title and Possession of Grantor Immaterial.—In such ease it is immaterial that t'he grantor had neither title nor possession.</p> <p>Id.—Possession of Defendant by Tenant—Change in Nature of Use—Interruption of Defendant’s Possession.—Where in an action to quiet title it appeared that the possession of the defendant for several years before the commencement of the action had been by a tenant under a lease from the defendant, that possession was not disturbed by a renewal of the lease at a mere nominal rental, the only change in the use of the land being the pasturing thereon ■by the defendant of a much smaller number of cattle.</p> <p>Id.—Actual Possession.—In such caso the defendant was in actual possession when, lat'er, and before commencing the action, the plaintiff and his attorney intruded on and built a fence around the land.</p> <p>Id.—Lack of Title in Both Plaintiff and Defendant.—Where, in an action to quiet title, brought under section 1006 of the Civil Code, it appears that the defendant was in the actual possession of the land when the plaintiff, who had no title, intruded on and built a fence around it immediately before the commencement of the action, the absence of title in the defendant was immaterial since the plaintiff had no better title, and under section 1006 of the Civil Code, the defendant was entitled to maintain his possession against everyone except the state or persons who had acquired a better title than defendant had.</p>

<p>San Francisco Harbor Commissioners—Piers and Docks—Relation Between Commissioners and Occupying Boat Owners.—While the contractual relation between the San Francisco harbor commissioners and those to whom they let the privilege of docking their boat's at the piers is not in a strict sense that of landlord and tenant,, yet so long as the owners of boats have them in dock at such piers, though not having that exclusive right and privilege, they are as much occupants of such piers as if they wore in the strict sense tenants of the commissioners.</p> <p>Id.—Nature of Right Granted by Commissioners.—The right granted to boat owners by the commissioners to use the piers for the docking of their vessels is a mere privilege or license, all owners of vessels plying the San Francisco Bay having, where duly granted to them, the same privilege or license.</p> <p>Id.—Repairs and Correction of Defects—Duty of Harbor Commissioners and Vessel Owners.—While it is the duty of the harbor commissioners to correct inherent defects in any equipment of the. pier essential to the loading or unloading properly and safely of freight on and from vessels docking thereat, it is incumbent on a licensee of the commissioners, while using the pier, t'o exercise reasonable care or such care as may be necessary to the discovery and correction of such defects either by himself or the commissioners.</p> <p>Ib.—Duty of Licensee to the Public and to His Customers.—A licensee of the harbor commissioners using a dock for the purpose of a transportation business in which he is engaged invites the public to the dock and to use the pier for the purposes of transacting business with him, and is required to maintain in safe and proper condition the means of ingress and egress, whereby his customers go in, upon, and out of his boat, and the means whereby his freight is transferred from boat to wharf or from wharf to -boat.</p> <p>Negligence — Defective Condition of'Apron of Pier Slip — Damage to Truck—Reliance of Driver on Apparently Safe Condition.—In an action for damages to a truck caused by the defective condition of a pier slip occupied and used by defendant’s boat under license from the harbor commissioners of San Francisco, plaintiff’s driver in charge of the truck, who had, on the same day, delivered a load of oil to defendant’s boat across the apron of the pier, had the right, on returning with another load and finding the apron apparently in the same condition as when he had previously used it, and as it was customarily used, to assume that there were no defects in it which would render it unsafe, and he was not charged with the duty of leaving his truck and investigating to assure himself of the safety of the apron.</p> <p>Id.—Btjkden of Proof of Negligence—Evidence—Res Ipsa Loquitur. Where the evidence showed that the boat’s crew regulated the height of the apron, raising and lowering it in accordance with the tide, and that investigation after the accident, which was caused by the apron giving way and falling when the wheel of plaintiff’s truck was driven upon it, disclosed that two pins used to hold in place the slides which supported the apron, had by unexplained means become displaced and afforded no support for the slides, the burden was not upon the plaintiff to show that the pins were removed by the defendant or his servants, or that some act of theirs produced the defect in the apron, but the doctrine of res ipsa loquitur applied.</p> <p>Id.—Inference from Previous Use Without Accident.—Evidence that during two immediately preceding years the same driver had supplied oil for plaintiff to defendant’s -boats and had no less than twenty-live times put his truck, without accident, in the same position on the apron as when the accident occurred, was sufficient to show that, in the ordinary course of things, accident's such as those which caused the damage in this action, did not happen.</p> <p>Id.—Action of Tide.—If in this action the defective condition of the apron was the result of the action of the tide, the explanation should have come from the defendant, who was charged with the special duty of protection, and whose duty it was to see that any defect so occasioned was discovered and corrected.</p>

<p>Pleading—Demurrer to Answer—Effect as Admission.—A demurrer to a separate defense in an answer' setting up fraud is not an admission of the alleged acts of fraud, the admission made by a demurrer being merely for the purpose of testing a question of law, and binding upon the demurrant only in so far as a ruling upon the demurrer-is concerned.</p>

<p>Physicians and Surbeons—Malpractice, Action for—Evidence.—In this action against a physician for malpractice in unnecessarily performing an operation, the evidence is held sufficient to sustain a verdict for defendant.</p> <p>Id.—Appeal—Denial of Nonsuit—Harmless EIrror.—Where in such action a motion for a nonsuit was made at the close of plaintiff’s case in chief, on the ground of the absence of evidence of negligence in diagnosing the plaintiff’s symptoms as showing a tumor, when the plaintiff was in fact at the time pregnant, the error, if any, was rendered harmless by the introduction of evidence later supplying the defect, it not appearing that the defendant' was prejudiced in presenting his defense by the fact that the testimony was produced later in the trial instead of during the presentation of plaintiff’s case in chief.</p> <p>, Id.—Instructions.—In such action, an instruction to the effect that if there is more than one method of treatment recognized by the medical profession, a physician may adopt either, was proper, in view of other instructions to the effect that if the physician applied reasonable skill and judgment with ordinary care, he was not liable for damages consequent upon an honest mistake or error in judgment.</p> <p>Id.—Withdrawal of Evidence from Consideration—Presumption.— An appellate tribunal is bound to presume that the jury followed an instruction withdrawing evidence from consideration.</p>

<p>New Trial—Modification op Order—Jurisdiction.—A trial court has no power to revoke, modify, or otherwise disturb an order granting a new trial after it has once been regularly entered, except upon a proper showing that it has been entered prematurely or by inadvertence.</p> <p>Id.—Inadvertence.—Misapprehension as to the nature and, extent of the testimony or the effect of the testimony is not inadvertence.</p>

<p>Negligence — Action fob Damages fob Death — Bailway Bridge Watchman—Safe Place to Work—Presumption from P'osition in Which Body Pound.—In an action against a railway company ■for damages for the death of a bridge watchman, alleged to be due to the .negligent failure of the company to provide a safe place of refuge from passing trains, it could not be assumed from the fact that the body of the deceased was found near a barrel on a platform attached to the bridge and constructed to hold water barrels and render them accessible in case of fire, that the deceased, while seated near one of such barrels,' fell asleep and allowed his head to fall forward and come in contact with a passing engine or car, since such assumption involved a violation of duty, which cannot be presumed, and also was in conflict with the presumption under subdivision 4 of section 1963 of the 'Civil Code that “a person takes ordinary care of his own concerns.”</p> <p>Id.—Contributory Negligence — Questions for Jury.—Whether the defendant was negligent in failing to provide a safe place for decedent to work, or whether decedent was grossly negligent in failing to select a safe place designed for safety, or whether when placing himself in the position stated he failed to take ordinary precautions to protect himself, were questions -which could not be taken from the jury and decided by the court.</p> <p>Id.—Assumption of Bisk—Evidence—Burden of Proof.—The burden of establishing the defense of assumption of risk is on the defendant.</p> <p>Id.—Proximate Cause of Death—Sufficiency of Evidence.—In this case the evidence is examined and held sufficient to justify the submission to the jury of the question whether the alleged negligence of the defendant was the proximate cause of the death of the decedent.</p> <p>Id.—Damages not Excessive.—Where the decedent was earning wages of seventy-five dollars a month and had a life expectancy of seventeen and four-tenths years, a verdict for seven thousand five hundred dollars apportioned between his widow and children was not excessive.</p>

<p>Adverse Possession—Statute or Limitations—Hostile Possession —Mistake as to Bounpaby.—If one of two coterminous owners takes possession and claims title to the extent of Ms possession, he holds adversely, although he was induced to locate his possession through a mistake as to the boundary.</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>Erwin W. Widney, W. K. Crawford, Albert Lee Stephens, and W. P. Healey, for Appellants.</p>

<p>Deeds—Restrictive Covenants — General Building Plan — Map as Evidence.—In an action by a vendee to enforce alleged restrictive building covenants claimed to have been provided for by a vendor under a general building plan for the subdivision and sale of a tract of land, and to cancel a conveyance claimed to have bpen made by the vendor to a subsequent vendee in violation of the same covenants, the existence of the covenants claimed cannot be implied from the mere making and filing of a map showing the different subdivisions, nor from the fact that the vendor sold lots in conformity therewith..</p> <p>Id.—Such Covenants Strictly Construed.—Restrictive covenants, though enforced when valid, will be construed strictly against the person seeking their enforcement, and when none are contemplated, courts will not create them.</p> <p>Id.—Pleading.—In this action it is held that the complaint failed to state a cause of action.</p>

<p>Tenancy in Common—Lien fob Expenditures—Foreclosure.—Where plaintiff and defendant, who had operated lands of which they were tenants in common at a loss, which the plaintiff was forced to pay, exchanged the lands for, other lands, subject to a mortgage, taking title to the new lands in the name of the defendant and agreed that the defendant’s entire interest should be one-half of what might be derived from a sale in excess of the mortgage after deducting the balance due the plaintiff, the plaintiff was entitled to maintain an action to have his lien foreclosed and the property sold for that purpose.</p>

<p>Homestead—Tenancy in Common.-—Under the law relating to homesteads as enacted by the legislature of 1873-74 (Stats. 1873-74, p. 228 et seq.), a homestead could not be created by one of the cotenants on land held in cotenancy.</p> <p>Id.—Declaration by Surviving Wife After Distribution of Husband’s Estate.—Declaration by a surviving wife of a homestead upon real property half of which was distributed to her absolutely and the other half in trust for her maintenance and that of her minor children was valid.</p>

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

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

<p>Municipal Corporations—Peddler’s License—Revocation — Notice. Where a city ordinance provides that no licenses may be revoked without giving the holder an opportunity to be heard by the board of trustees after notice in writing fixing the time and place of hearing, but does not prescribe the time when such notice shall be given, the law prescribes a reasonable time, and a notice given to immediately appear upon service of the notice to show cause why the license should not be revoked was not insufficient where the licensee appeared and made no objection to the holding of the hearing at that time or request for a continuance.</p> <p>Id.—Sufficiency of Service of Notice.—In such ease, where the licensee had full actual notice of the hearing, it was immaterial whether a copy of the notice was left with him.</p> <p>False Imprisonment—Peddling After Revocation of License—Evidence.—-In an action for false imprisonment of a peddler arrested for peddling after revocation of license, the evidence is held to show good faith on the part of the trustees in revoking the license for unfitness of the licensee.</p> <p>Id.—Evidence — Presumption — Regularity of Official Action.—In such action courts will presume that the discretion of the board of trustees of the municipality was properly exercised in revoking the license, in the absence of evidence to the contrary.</p> <p>Appeal — Alternative Method —Briefs — Omission of Evidence.— Where an appeal is taken under the alternative method, the appellate court will not search the transcript to find evidence which the parties have omitted to print in their briefs in disregard of section 953c of the Code of Civil Procedure.</p>

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

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

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

<p>Landlord and Tenant—Transfer of Lease by Tenant—Liability of Original Lessee.—A sale and transfer of a leasehold by a tenant, even with the consent of the landlord, does not release the tenant from liability under his covenants in the lease.</p> <p>Id.—Action for Bent — Release of Lessee—Finding Contrary to Evidence.—In this action to recover from the original lessee the rent. due under a lease, the finding that the defendant had boon released by an agreement entered into by the plaintiff, who was the assignee of the lessor, is contrary to the evidence, there having been no release in writing and no “new’’’ consideration for the alleged release.</p> <p>Id.—Transfer of Entire Estate—Assignment.—Where a tenant transfers his entire interest in either the whole or a part of the demised premises, the legal effect is an assignment and not a subletting, regardless of the form of the instrument or conveyance by which the term is disposed of.</p>

<p>APPEAL from a judgment of the Superior Court of Inyo County, and from an order denying a new trial. Wm. D. Dehy, 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>Workmen’s Compensation Act—Beview.—A finding by the Industrial Accident Commission after a hearing on evidence, that neither of the petitioners had been wholly or partially dependent upon the deceased employee cannot be reviewed, since no court has power to correct errors of the commission in its conclusions based on the evidence.</p>

<p>APPLICATION for Writ of Review directed against the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mines and Mining—Trusts—Grubstake Agreement.—Under sections 856 and 2243 of the Civil Code purchasers in good faith of a mining claim and for valuable consideration are not responsible to one who had rights under a grubstake agreement.</p> <p>Foreign Laws—Presumption.—In the absence of proof to the contrary it is presumed that the laws of Alaska are the same as in California.</p> <p>Contempt — Witnesses — Immaterial Questions — Refusal to Answer.—Under section 2065 and subdivisions 5 and 10 of section 1209 of the Code of Civil Procedure a witness cannot be adjudged guilty of contempt for refusing t'o answer questions not pertinent to any issue.</p>

<p>APPLICATION for Mandamus to compel the furnishing of gas and electricity.</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>Judicial Sales—Title of Purchaser at Sale Under Execution— Reversal of Judgment—Effect.—The title of one not a party to a judgment which is erroneous but not void, who purchases at'a sale under such judgment, is not defeated or impaired by a subsequent reversal of the judgment on appeal, but where a party to the decree purchases the property, he or his subsequent grantee acquires a defeasible title only, which falls with a subsequent reversal of the judgment.</p> <p>Adverse Possession—Hostile Claim Essential.—The essence of adverse possession is that the holder claims the right to hold, not under, but' in opposition to the title to which his possession is alleged to be adverse.</p>

<p>APPEAL from a judgment of the Superior Court of Mariposa County. J. J. Trabucco, Judge.</p> <p>The facts arp stated in the opinion of the court.</p>

<p>Gift—Indorsement of Stock Certificates—Delivery to Third Person for Indorsee—Retaking by Donor Ineffective—Evidence— Delivery and Recording of Other Instruments Executed by Donor.—Judgment affirmed pursuant to stipulation on the authority of Coward v. Ve Cray et ál., ante, p. 290.</p>

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

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

<p>Duress.—Judgment affirmed on authority of Tisdale v. Bryant, ante, p. 750.</p>