Volume 48 — California Appellate Reports

<p>[1] Corporations—Transfer of Shares—How Effected.—A share of corporate stock, being an incorporeal right, incapable of manual delivery, the certificate being nothing more than evidence of its existence, in the absence of any controlling statutory inhibition, the shares, without an assignment or delivery of the certificate, may be assigned in any manner appropriate to the transfer of incorporeal personal property, as, for example, by a bill of sale, or any mode that will suffice to pass title to a chose in action or intangible property.</p> <p>[2] Id.—Issuance of Certificates—Mode of Transfer—Section 324, Civil Code, Construed.—Section 324 of the Civil Code, which prescribes a mode by which the transfer of corporate stock may be made, is intended for the protection of the corporation and those who claim under the persons to whom the certificates were -originally issued, but does not cover the whole subject of transfer, even where certificates have been issued.</p> <p>[3] Id.—Agreement to Exchange Stock — Sufficiency to Pass Title.—An agreement consisting of oral offer by an individual to a corporation to exchange all the stock in another corporation for all the stock of that corporation, accepted by the latter corporation; and immediately thereafter confirmed by the individual making the offer by a writing in which he recites that he thereby exchanges the capital stock of the one corporation for the capital stock of the other corporation, is sufficient, as between such individual and the corporation with which such contract was made, to transfer to the latter whatever interest such individual has in the stock of the other corporation.</p> <p>[4] Id.—Oral Offer of Exchange—Acceptance—Written Confirmation — Executed Contract.—The oral offer made by such individual to the corporation to exchange all the stock in another corporation for all the stock of that corporation, and the acceptance by the corporation of that offer, coupled with such individual’s subsequent written confirmation of the exchange, was not an executory agreement to sell or to exchange, but was a completed or executed contract of exchange, whereby, as between the parties thereto, whatever title such individual had in the stock of the other corporation passed to and vested in the corporation with whom he entered into the contract.</p> <p>[5] Sales—Passing of Title—Intention of Parties.—In determining whether title has or has not passed, the primary consideration is one of intention, in each case the agreement being what the parties intended to make it, their intention to be gathered from the terms of the contract and such attendant circumstances as may legitimately be considered as evidencing the intention.</p> <p>[6] Id.—Delivery not Essential.—As between the parties, delivery is not essential to a contract of sale or exchange and the passing of title.</p> <p>[7] Corporations—Use of Word “Trustee” After Name of Stockholder—Effect of.—The addition of the word “trustee” after the name of a stockholder on the books of a corporation does not necessarily and alone raise an implication that such stockholder does not have the full right i¿o deal with the stock as his own.</p> <p>[8] Id.—Sale of Shares — Inability to Deliver All—Eights and Duties of Parties.—Where a purchaser bargains for and purchases a given number of shares of the capital stock of a corporation, but the seller is not the owner of and therefore is unable to deliver the full number of shares, the purchaser, if he sees fit, can accept, in fulfillment of the contract, a lesser number of shares, and it does not lie with the seller to complain or to evade his obligation because he did not, or could not, comply strictly with bis contract,</p> <p>[9] Id.—Pledge of Stock—Transfer on Books not Essential.—A transfer of stock upon the books of the corporation is not essential to the creation of a valid pledge.</p> <p>[10] Id.—Purchase of Stock—Notice of Prior Pledge—Title Acquired.—If a purchaser of corporate stock has notice of a prior pledge thereof to a bank, the only title that passes to him is such as remained in the seller as pledgor, but if such purchaser has no notice of the pledge, or notice of circumstances sufficient to put a prudent person upon inquiry, he takes whatever title the seller has to the shares free and unencumbered by any claim of the bank as pledgee.</p> <p>[11] Sales—Executed Contract—Rescission—Restoration of Title. If a contract of sale or of exchange has been fully executed, and nothing remains to be done thereunder by either party thereto, the contract has fulfilled its purpose, and merely rescinding it by the mutual consent of the parties will not alone and ipso facto, in the absence of an intent to effect a restoration of title by reason of the rescission, restore to either of the parties that which he may have parted with under the fully executed contract.</p> <p>[12] Corporations—Resolution Rescinding Contract—Insufficiency to Retransfer Title.—A resolution by the board of directors of a corporation rescinding a prior executed contract by which it acquired certain stock in another corporation and authorizing the officers of the corporation to execute and deliver all necessary documents to carry out the spirit and purpose of the resolution will not operate ipso facto to retransfer the title to the stock to the seller.</p> <p>[13] Id.—Ownership of Stock—Equity—Pleading—Relief Authorized—Parties.—Where in an equitable action involving, among other things, the ownership and proper registration of certain corporate stock, in which the plaintiffs pray for both general and special relief, and in which there is an answer to the complaint, the court may grant the plaintiffs any relief consistent with the case made by the complaint and embraced within the issues; and in such action it is error to grant a nonsuit as to one who is a proper, if not a necessary, party defendant.</p> <p>[14] Id.—Registry of Transfer of Stock—Equity—Pleading—Parties.—The true owner of stock may resort to a court of equity to compel the corporation to register on the books a transfer of the stock and to issue to him a new certificate; and in such an action it is proper to bring before the court as parties to the suit all persons having an interest in the stock, whether legal or equitable, in order that they may be bound by the decree, and further litigation prevented.</p> <p>9. Validity of pledge or other transfer of stock of corporation when not made in books of company, as against attachments, executions or subsequent transfers, notes, 67 L. R. A. 656; 20 L. R. A. (N. S.) 996.</p> <p>[15] Id.—Absence of Necessary Party—Duty of Court to Order in.—Where in such an action it appears that the presence of a given bank, as claimant of a pledgee’s special property in the stock,, is necessary to a complete determination of the controversy, 'the trial court, sua sponte, should make an order under section 389 of the Code of Civil Procedure, directing the bank to be brought into the action as a party defendant.</p>

<p>[1] Estates of Deceased Persons—Rejection of Claim—Premature Action to Establish Claim—Dismissal by Plaintiff—Institution of New Action—Statute of Limitations.—Where an action to establish a claim against an estate is prematurely brought, and is, therefore, dismissed by the plaintiff, the institution of such action does not constitute an election on the part of such plaintiff to consider the claim as having been rejected by the executrix of said estate, so as to start the time running within which a new action to establish such claim might be instituted, written notice of the rejection of the claim not having been given as provided by section 1498 of the Code of Civil Procedure.</p>

<p>[1] Claim and Delivery—Recovery op Automobile—Ownership and Possession—Evidence—Unsupported Finding.-—In this action by the vendor against the vendee and others claiming under said vendee as innocent purchasers, to recover possession of an automobile sold by plaintiff under a conditional sale agreement, the findings of the trial court that plaintiff was not the owner or entitled to possession of the automobile, but that the defendant named by plaintiff as his vendee had purchased the property from a certain motor-car company and that said motor-car company was the owner thereof at the time of said sale, was contrary to the uneontradieted testimony of plaintiff showing that the deal between said defendant and the motor-car company fell through, that he thereupon bought the car from said motor-ear company and conditionally sold it to said defendant, reserving title to himself until all payments had been made,</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>City and County of San Francisco. E. P. Shortall, Judge.</p> <p>Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts—Subscription Contest—Agreement to Deliver Automobile—Specific Performance—Commingling of Causes of Action—Waiver of Objection.—In an action for specific performance of an agreement to deliver an automobile based upon the outcome of a newspaper subscription contest, the objection that the complaint states two causes of action commingled in one statement, if not raised by demurrer in the trial court, cannot be considered on appeal.</p> <p>[2] Id.—Bulbs of Contest—Admission After Close of Plaintiff’s Case—Cross-examination of Defendants’ Witness.—In sueh action, a witness for the defendants having been questioned on direct examination in reference to a part of the rules of the contest, the trial court did not commit error in permitting the plaintiff, upon the cross-examination of sueh witness, to introduce the rules under which the contest was conducted.</p> <p>[3] Id.—Withdrawal of Contestant — Continuance of Name in Contest Contrary to Bules—Bight to Highest Award.—Where, after'one of the contestants had withdrawn her name from the contest, agents of the proprietors of the paper, contrary to the rules of the contest, carried her name out as an active contestant to the end of the contest, she was not legally a contestant, and, notwithstanding that at the close of the contest she was credited with the highest number of votes, the contestant, legally in the contest, receiving the highest number of votes cast was entitled to the highest award offered.</p> <p>[4] Id.—Voluntary Withdrawal of Contestant—Beceipt of Highest Number of Votes—Assignment to Succeeding Contestant—■ Bight to Attack Sufficiency of.—The name of such withdrawing contestant having been carried in the paper as an actual contestant, and agents of the proprietors of the paper having procured votes to be cast for her, contrary to the rules of the company, to the end that at the close of the contest she was credited with the highest number of votes, and she thereupon having executed in favor of the contestant appearing as having received the second highest number of votes a writing in which the proprietors of the newspaper were directed to give the latter the highest award, “as she is the one who is entitled to it,” the validity of sueh paper as an assignment, either as to its form or want of consideration, is not open to question by the proprietors of the paper.</p> <p>[5] Id.—Absence of Proof — Denial of Nonsuit •—• Defect Supplied by Defendants.—In an action for specific performance of an agreement to deliver an automobile based upon the outcome of a newspaper subscription contest, error of the trial court in denying a motion for a nonsuit on the ground that plaintiff has -not shown that her position in the contest was such as entitled her to the automobile will not justify a reversal on appeal of the judgment in her favor where the defect is supplied by evidence which the defendants thereafter introduce.</p>

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

<p>[1] Street Daw-—Priority op Liens—Superiority op Titles.—As between two parties each claiming to be the owner of certain real property and each resting Ms title in a street improvement proceeding, the one claiming title under the last lien in point of time must prevail.</p>

<p>APPEAL from an order of the Superior Court of Kings County dismissing an action for failure to serve the summons within three years. M. L. Short, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, John T. Jones, C. F. Culver, R. Justin Miller and Wheaton A. Gray for Appellant.</p>

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

<p>[1] Fish and Game—Action por Conversion op Fish—Ownership and Bight op Possession •—Evidence — Finding.—In this action for damages for alleged conversion by the defendants, a deputy sheriff and a justice of the peace, of a quantity of fish, the court was justified in believing from the evidence that all of the fish in question had been taken by the plaintiff with a net from the waters of the Pacific Ocean within three miles from the shore of Santa Catalina Island and, therefore, in finding that plaintiff was not the owner nor, entitled to possession of the fish.</p> <p>[2] Id.—Begulatioñ op Taking — Penalty por Violation — Legislative Power.—Laws regulating the taking of wild game and fish and imposing penalties for the violation of such laws are fully within the legislative power of the state and do not destroy any right of property.</p> <p>[3] Id.—Ownership op Fish in State—Illegal Taking.—The general right and ownership of fish within our waters is in the people of the state, and no person can acquire title or right of possession to such property by the act of taking possession, thereof illegally.</p> <p>[4] Id.—Fishing Bights Around Islands—Jurisdiction op State.— The state of California has jurisdiction over the subject of fishing rights to the distance of three miles from the shore of any island which is a part of the state, as well as to the distance of three miles from the shore of the mainland.</p> <p>4. Bight to fish in navigable waters, note, 21 Ann. Cas. 777.</p>

<p>[1] Pleading—Prayer—Relief Authorized.—While in default eases the prayer of plaintiff’s complaint limits his recovery, in contested cases such demand does not limit the recovery, but the court may grant plaintiff any relief consistent with the case made by the complaint and embraced within the issue, although not specifically prayed for.</p> <p>[2] Waters and Water Rights — Action to Quiet Title — Issues — Prayer—Judgment.—In an action to quiet the title of plaintiff as against defendant to a certain reservoir and right of way, if the allegations of the complaint and the denials and averments of the answer clearly raise an issue as to the ownership of certain specific water rights, it is necessary for the. trial court to find the facts in reference to such rights and to adjudicate as to the ownership of .the same, notwithstanding plaintiff did not pray for such relief.</p> <p>[3] Id.—Findings of Ownership and Notice—Evidence.—In this action, the evidence was sufficient to sustain the findings of the trial court that plaintiff was the owner of a certain reservoir and reservoir site described in plaintiff’s complaint, and that defendant had full knowledge and notice of the rights of the corporation, plaintiff’s predecessor, to such reservoir and reservoir site at the time he accepted from the general manager of said corporation the instrument which by such general manager conveyed to defendant all his title and interest in said reservoir and reservoir site.</p> <p>[4] Notice — Placing of Person on Inquiry.—Where a person had sufficient information to place him on inquiry, he is chargeable with notice of all facts which he might have ascertained by inquiry.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. J. ■ A. Plummer, Judge presiding. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Duty of Driver of Vehicle.—The driver of a vehicle must proceed carefully, and be on the alert lest he collide with others.</p> <p>[2] Id.—Driving of Vehicle Near School—Care Required.—Where a vehicle is being driven in close proximity to a school at an hour at which children might, with certainty, be expected to be using the street, there is imposed upon the driver a greater degree of caution than he would be required to use under ordinary circumstances.</p> <p>[3] Id.—Injury to Boy — Action for Damages — Statements of Driver Following Accident—Evidence—Admissions.—In an action against a bread company and the driver of one of its delivery wagons for damages for personal injuries to a boy who was run into and knocked down while on his way to school, evidence of conversations had with such driver shortly after the accident to the effect that a certain customer had called to him and he looked around to answer her question and while he was looking around he ran over the boy, and that he did not see the boy, is admissible against such defendant, being declarations and admissions concerning the happening for which he was responsible.</p> <p>[4] Id.—Detrimental Effect of Statements on Other Defendant— Exclusion of Evidence.-—While- such statements of the defendant driver, made shortly after the accident, giving his version as to how the accident happened, were not binding upon his eodefendant, his employer, the court could not properly exclude them for that reason. Evidence properly admissible upon the issue presented cannot be excluded because it may have ulterior or collateral effects detrimental to one of the parties.</p> <p>[5] Id.—Suggestion of Willingness to Dismiss as to Driver—Refusal of Court to Rule on—Absence of Error.—In an action against a bread company and the driver of one of its delivery wagons for damages for personal injuries to a boy who was run into and knocked down while on his way to school, refusal of the court to rule on a suggestion of counsel for plaintiff, made in the course of counsel’s argument, of a willingness to dismiss the action as to the defendant driver does not constitute prejudicial error justifying a reversal of the judgment against the defendants, where the latter did not take advantage of the incident at the time, either by filing their written consent to the dismissal or by insisting upon an order of court and entry in the minutes.</p> <p>[6] Id.—Action by Guardian — Appointment and Qualification — Pleading and Proof.—In an action by a minor, by his guardian, for damages for personal injuries, an allegation that the person by whom the suit is brought “is the duly appointed, qualified, and acting guardian of the person and estate of said minor” is a sufficient averment of the official capacity of the guardian in the absence of a special demurrer, and if admitted in the answer has the effect of a stipulation of the fact, which renders the allegation of more specific facts unnecessary.</p> <p>[7] Id.—Denial for Lack of Information and Belief—Public Record—Insufficient Pleading.—The denial, for lack of information and belief, of the allegation that the person bringing the action “is the duly appointed, qualified, and acting guardian of the person and estate of said minor,” is insufficient, the appointment of the guardian being a matter of public record.</p>

<p>[1] Principal and Agent — Representation oe Both Parties — Adverse Interests—Validity oe Contract.-—While an agent may, with their full knowledge and consent, represent both parties to a contract, and his contract under such circumstances binds each within the scope of his employment, where an agent, without the full knowledge and consent of his principal, represents the adverse party in a transaction, his contracts relating thereto are voidable • at the option of his principal.</p> <p>[2] Id.—Subject Matter oe Agency—Interests oe Agent—Assumption oe Duties.—An agent cannot, except with his principal’s full knowledge and consent, assume any duties or enter upon any transaction concerning the - subject matter of the agency in which he has individual interests, or represent interests adverse to those of his principal.</p> <p>[3] Corporations—Issuance of Stock not Fully Paid Up—Knowledge of Creditor—Evidence.—In this action by a creditor against the stockholders of a corporation to recover upon their liability for the amount remaining unpaid on the stock held by them, there was no evidence disclosing any information to plaintiff about the corporation or that the stock held by defendants was issued to them as fully paid-up stock.</p> <p>[4] Id.—Value of Property Conveyed to Corporation—Belief of Stockholders — Bights of Creditors.—Assuming that the stockholders believed that the property transferred to the corporation was worth an amount equal to the par value of the stock issued therefor and that among themselves it was binding as “fully paid up,” this is not the case as to creditors.</p> <p>[5] Id.—Adverse Interest of Agent—■ Knowledge not Imputed to Principal.—The fact that the agent of plaintiff knew, at the time he sold plaintiff’s goods to the corporation of which defendants were stockholders, that the stock held by defendants was issued by such corporation as fully paid up, in consideration of the transfer to it of certain property, did not charge plaintiff with knowledge of that fact, where it did not have actual knowledge, and such agent was also the agent of such corporation in the purchase of the goods and was, at the time, a stockholder therein.</p> <p>[6] Id.—Issuance of Stock not Fully Paid Up — Liability of Transferees.—The fact that the defendants were the owners of the stock which had been issued by the corporation without being fully paid up rendered them liable to creditors of the corporation for such unpaid balance, notwithstanding they had not subscribed to or purchased the stock.</p> <p>[7] Id.—Liability for Unpaid Subscriptions—Application of Bule to Mining Corporations.—The rule that where the stock of a corporation is issued without being fully paid up, the amount remaining unpaid is, so far as its creditors are concerned, deemed to be money due from the stockholders, and that a creditor, if the corporation becomes insolvent, may apply, in equity, to have the fund so deemed to be due to the corporation collected and applied • upon his debt, is applicable to mining corporations.</p> <p>3. Issuance of stock at discount as affecting stockholder’s liability for debts, notes, 5 Ann. Cas. 667; 8 L. B. A. (N. S.) 263; 51 L. B. A. (N. S.) 56.</p> <p>Effect of creditor’s knowledge that stock was improperly issued as fully paid up on his right to resort to holder of same, note, 8 L. E. A. (N. S.) 271.</p>

<p>[1] Contracts—Installation of Refrigerating Plant According to Specifications—Implied Warranty.—Where a contract for a refrigeration plant contains full and complete specifications therefor, there is no implied warranty that the machine will answer the particular purpose for which the buyers intend to use it.</p> <p>1. Implied warranty by manufacturer or vendor of machinery or apparatus, not in itself defective, of fitness for use under existing conditions, note, 6 L. R. A. (N. S.) 180.</p> <p>[2] Id.—Refrigeration Guaranteed to be Produced—Insufficiency of Evidence to Show Breach.—In an action to recover the agreed contract price for installing a refrigerating plant which was guaranteed by plaintiff to produce refrigeration equal to the melting of one ton of ice daily, if operated eight hours per day with the doors closed except when in actual use, evidence that the apparatus would not produce refrigeration sufficient to preserve commodities placed in the cooling-boxes is insufficient to justify a finding that the plant did not produce refrigeration in accordance with plaintiff’s guaranty.</p> <p>[3] Id.—Installation of Plant and* Boxes Under Separate Contracts — Payment for One not Contingent on Operation of Other.—Where two contracts, one for the installation of a refrigerating plant and the other for the installation of cold-storage boxes, are entirely distinct and separate and in the latter contract no mention is made of the former, in an action thereon, it is error for the court to find that payment for the installation of the cold-storage boxes was dependent upon the successful operation of the refrigerating plant.</p>

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

PROCEEDING in Prohibition to prevent the Superior Court of Sacramento County, and Malcolm C. Glenn, Judge thereof, from trying the petitioner for a violation of section 17 of the Motor Vehicle Act. Petition dismissed. The facts are stated in the opinion of the court.

<p>[1] Promissory Hote—Execution as Security—Action to Recover on—Parol Evidence.—In an action to recover on a promissory note executed by the defendant in favor of the plaintiff, parol evidence is admissible to show that the note was given to secure plaintiff against loss by reason of his having joined, as accommodation maker, in the execution of a certain other note; and if the latter note was paid or discharged and plaintiff suffered no loss or detriment, or if the liability of defendant was in any way affected by some act of plaintiff, the note of defendant was discharged and parol evidence is admissible to prove the facts.</p> <p>[2] Id.—Execution of Renewal Hote — Stipulation of Parties — Erroneous Finding of Payment.'—In an action to recover on a promissory note, a stipulation of the parties that a certain promissory note was given “as a renewal on the amount remaining due” on a promissory note previously executed is binding upon the parties and precludes a finding that the latter note was paid in full and discharged by the former note and certain payments of cash on account of principal and interest.</p> <p>[3] Id.—Payment of Original Hote—Erroneous Finding—Reversible Error.—In an action to recover on a promissory note given to secure plaintiff against loss by reason of Ms having joined, as accommodation maker, in the execution of a certain other promissory note, the question as to whether the latter note was paid in full and discharged is a material issue, and a finding thereon, contrary to the stipulated fact, that it was paid in full and discharged constitutes reversible error.</p>

<p>[1] Religious Corporations—Specific Performance of Contracts— Equity.—When a religious corporation neglects or refuses to carry out its contractual obligations by failing or refusing to do or perform certain acts which lie within its power to perform, an action for specific performance against it may be successfully invoked.</p> <p>[2] Id.—Sale of Real. Property by—Necessity for Court Order.— A valid sale of real property may not be made by a religious corporation until an order of court authorizing such sale is first had and obtained.</p> <p>[3] Id.—Denial of Order—Discretion of Court.—The provisions of section 598 of the Civil Code relating to the sale of real property by a religious corporation are not mandatory upon the court, requiring that the court shall in all cases grant an order to sell, but the court may, in the exercise of sound discretion, deny such order.</p> <p>[4] Id.—Agreement to Sell Real Property—Order Directing Sale to Another — Specific Performance.—Specific performance, of a written agreement by a religious corporation to sell certain real property to a given individual cannot be decreed while there is in force an order, duly made by the superior court of the county, upon proper petition and notice, in a proceeding instituted under section 598 of the Civil Code, directing that the property in question be conveyed by such corporation to another purchaser.</p> <p>[5] Id.—Fraud—False Testimony—Collateral Attack on Order.— An order, duly made upon proper petition and notice, in a proceeding instituted under section 598 of the Civil Code, directing the conveyance by a religious corporation to a given individual of certain real property, cannot be attacked on the ground of fraud by another purchaser in an independent action for the specific performance of a written agreement for the sale to him of the property; neither may such order be thus collaterally attacked on the ground that it was granted on false testimony, in the absence of a showing of lack of jurisdiction.</p> <p>[6] Id.—Order Directing Sale to Given Purchaser—Implied Denial op Sale to Another.—Where, in a proceeding instituted under section 598 of the- Civil Code, the court directs a sale of the real property of a religious corporation to a purchaser other than the one named by the corporation in its petition, and for a different consideration than that specified in said petition, such order constitutes a denial of the petition in so far as the purchaser thus presented by the corporation is concerned.</p>

<p>[1] Vendor and Vendee—Purchase or Interest in Mine—Statements or Vendor — Reliance upon — Recovery or Payments.— Where there was no legal relation of special trust between the parties to the sale of an interest in a mine, other than that they had been neighbors and friends, the vendor having had some experience in the mining business while the vendees had no such experience, which facts were known to all, the vendees, in order to be entitled to recover the payments made by them, must show not merely that they had confidence in the integrity of the vendor, but also that the vendor made false statements to them upon which they were entitled to rely and that without investigating the facts for themselves they relied upon those statements.</p> <p>[2] Id.—Cost op Mine—Sale PteiCE—Fraud.—Where the vendor made no representations to the vendees concerning the cost of the claims to him, and they did not make any inquiry on that subject, the fact that the vendor was selling a one-half interest in the claims for a sum greatly in excess of the sum he had paid for his option on the claims did not constitute fraud.</p>

<p>[1] Husband and Wife — Ownership oe Improvements.—Improvements made by the husband on property owned by the wife belong to the wife, notwithstanding such improvements are paid for with community funds.</p> <p>[2] Id.—Conveyance by Husband to Wipe — Separate Property — Presumption.—A husband may convey real or personal property to his wife, and whether the property conveyed be his separate or the community property, the presumption is that it thereby becomes, and is thereafter treated as, her separate property; and in in the absence of evidence of a contrary intent the transfer will vest the property in the wife as her separate property and estate.</p> <p>[3] Id.—Character op Ownership—Mode op Acquisition—Declarations op Parties—Presumption—Evidence—Finding.—The character of the ownership of property, whether separate or community, is to be determined by the proof showing the mode of acquisition, rather than by any declarations of one of the parties that the property was or was not community property; and when the controversy is between the husband and the legal representative of the wife the presumption may be controverted by other evidence, direct or indirect, and it is only where it is not so controverted that the court is bound to find in accordance with the presumption.</p> <p>[4] Id.—Bebuttal op Presumption — Conclusion op Trial Court — Appeal.—Whether or not the presumption that property conveyed by one spouse to the other is the separate property of-the latter is controverted or sustained is a question of fact for the trial court, and the conclusions of that tribunal are conclusive upon an appellate court, unless it be manifestly without sufficient support in the evidence.</p> <p>[5] Id.—Presumption as Evidence—Weight op Bebuttal Evidence— Burden gp Proop.—In an action by a husband against the devisees under the will of his deceased wife to have it determined that certain real property standing of record in the name of the deceased was community property, and upon her death vested absolutely in Mm, the property having been purchased with money and the proceeds of certain notes transferred by the plaintiff to Ms wife, the presumption that the property was her separate property, though disputable, is itself evidence, and it is for the trial court to say whether the evidence offered to support or overthrow the presumption has sufficient weight to effect that purpose, the burden being on the plaintiff to rebut the presumption.</p> <p>[6] Id.—Transfer of Monet and Notes to Wife—Gift—Subsequent Purchase of Lots—Character of Ownership—Evidence—Finding.—In this action by a husband against the devisees under the will of his deceased wife to have it determined that certain real property standing of record in the name of the deceased, and which had been purchased with money and the proceeds of certain notes transferred by the plaintiff to his wife, was community property, from all the circumstances the trial court may well have concluded, as it did, that the transfer of the money and notes in the first instance was a gift from the plaintiff to his wife, and that the subsequent purchase of the lots in question from that fund was a further consummation of a like intent, notwithstanding the testimony of the plaintiff that there was no intent or purpose on his part to give any of the money or any of the notes to his wife to be hers absolutely.</p> <p>[7] Id.—Character of Ownership—Declaration bt Wife in Will— Incompetent Evidence.—In such an action, the declaration of the deceased wife in her will that the property in question was her sole and separate property is not competent proof of such fact and should not be admitted over plaintiff’s objection.</p> <p>[8] Id.—Admission of Will—Reserve of Motion to Strike Out— Appeal—Presumption.—Where the trial court in such action admits the will of the deceased containing the declaration by her that the property in question was her sole and separate property, but at the time of doing so expresses the opinion that such declaration is not competent to prove that fact, and, in admitting the document, -reserves to itself the right to strike it out without motion if it sees fit, it will be assumed on appeal, in the absence of some showing to the contrary, that the trial court did strike out such evidence and disregarded the same in arriving at its judgment.</p> <p>[9] Id.—Letters to Wife — Res Gestae — Incompetent Evidence.— In such an action, letters written by the plaintiff to his wife, and offered by him as tending to show a friendly relation between them, are properly excluded, where they form no part of the res gestae and are in no way connected with the circumstances sur rounding the transactions involved in the action.</p> <p>[10] New Trials'—Granting or Refusal—Discretion of Trial Court —Appeal.—The granting or refusing a new trial rests so largely in the discretion of the trial court that its action in that regard will not be disturbed except upon the disclosure of a manifest and unmistakable abuse.</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>[1] Promissory Note—Action on—Consideration—Money Paid to Maker as Gist—Evidence.—In this action on a promissory note executed "by defendant to plaintiff's intestate, in which the defendant pleaded want of consideration, the testimony of the defendant, in connection with the testimony of the cashier of the bank from which the deceased obtained the money paid to defendant, was sufficient to warrant the inference that the deceased, when she delivered the money to defendant, delivered it either as a gift to him or in discharge of an obligation which she assumed rested upon her in connection with the distribution of property obtained from her mother.</p> <p>[2] Id.—"Want op Consideration—Payment—Parol Evidence.—While no evidence can "be admitted to prove that a written contract which is plain and unambiguous in its material terms was intended to impose greater or less obligations than those terms import, it is always permissible, however, to show the want of consideration for the making of a contract, or that the contract has been discharged by direct payment, accord, and satisfaction, or in any of the several manners by which parties may extinguish their contractual obligations.</p> <p>[3] Id.—Declarations of Payee — Declarations in Presence of Payee—Evidence.—In an action on a promissory note executed by defendant to plaintiff’s intestate, in order to prove want of consideration, evidence as to declarations of the deceased is admissible, under subdivision 2 of section 1870 of the Code of Civil Procedure, and evidence as to statements of the mother of defendant and the deceased, made in the latter’s presence during her lifetime, is admissible, under subdivision 3 of said section.</p>

<p>APPEAL from a judgment of the Superior C.ourt of Los Angeles County. John W. Shenk, Judge. Modified and 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>[1] Place of Trial—Motion fob Change—Residence of Defendant —Sufficiency of Affidavit.—In an action for divorce, a statement of an affidavit by the defendant on her motion for a change of place of trial at the time of the commencement of the action and from since a specified date, which was five days prior to the commencement of the action, and at the time of the making of the affidavit “she is a dona fide resident” of a county other than the county in which the action commenced, without other facts to support it, is one of a probative fact, and is sufficient of itself, if uncontradicted, to justify the granting of her motion.</p> <p>[2] Id.—Insufficiency of Counter-affidavit—Conflict of General Denial With Statement of Fact.—A denial by the plaintiff, in his counter-affidavits in such action, that the defendant is a resident of such other county, amounts to no more than his conclusion, and is not sufficient to raise a conflict, where the facts detailed in his affidavits do not support that conclusion but are consistent with defendant’s statement as to her residence.</p> <p>[3] Id.—Departure for Another County — Intention — Evidence — Failure to Take Belongings.—Neither the fact that defendant did not remove all her belongings from. the apartments of plaintiff when she separated from him and departed for such other county, nor the fact that the belongings she did remove were stored in the basement of the apartment house, can be taken as evidence of her intention to. return to the county in which they resided, in the face of her sworn statement that she is a dona fide resident of such other county.</p>

<p>[1] Promissory Note—Sectored by Mortgage—Negotiability—Innocent Purchaser for Value—Diligence—Equity.—While a note and mortgage are to be read together and are non-negotiable, and hence an assignee thereof takes them subject to all the equities and infirmities which could be urged by the makers thereof against the original mortgagee, if the assignee of the note and mortgage nses proper diligence and makes reasonable inquiry to ascertain what, if any, outstanding equities there are in favor of the mortgagor, and, finding no circumstances which would lead a reasonable person to believe that the full consideration had not passed for the execution of said note and mortgage, or that there were equities. outstanding in favor of the mortgagor, he takes the assignment of said note and mortgage, paying, in good faith, full value therefor, he takes the same free from such equities as the mortgagor might otherwise have asserted.</p> <p>[2] Id.—Execution as Security for Future Advances — Want of Notice to Innocent Purchaser—Equity—Estoppel.:—Where a person makes, executes, and delivers to another his promissory note for a given amount, secured by a mortgage, and neither such note nor the mortgage contains any recital o'r notice that they were given for advances yet to be made, he will be estopped to claim that the full amount of such advances have not been made as against an innocent purchaser who, after the exercise of proper diligence to ascertain if there are any outstanding equities has paid full face value therefor, he, upon inquiry being made of him by the purchaser and her agent, prior to her purchase of the note and mortgage, having failed to enlighten them as to the extent of the advancements which had been made upon such loan.</p>

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

<p>[1] Broker’s Commissions — Oral Contract of Employment — Recovery Barred.—Under subdivision 6 of section 1624 of the Civil Code, a broker cannot recover compensation for securing a purchaser for the real property of a mining corporation where his only contract with the corporation was an oral contract of employment entered into with a stockholder of the corporation.</p> <p>[2] Id.-—Broker Defined.—A person whose business is to bring buyer and seller together is a “broker,” within the meaning of subdivision 6 of section 1624 of the Civil Code, though he act as such in but a single transaction.</p> <p>[3] Id.'—Employment by Other Than Owner—Statute of Frauds— Application of.—The provision of subdivision 6 of section 1624 of the Civil Code that “an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission” is “invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by Ms agent,” is applicable to any contract whereby one, whether owner or not, employs another to effect a sale of real estate and agrees unconditionally to pay a stipulated sum for the performance of such services.</p> <p>1. Power of legislature to prohibit offering another’s real estate for sale without written authority, notes, Ann. Cas. 1913C, 727; 12 L. R. A. (N. S.) 707.</p> <p>Necessity that agent’s authority to purchase or sell real estate be in writing to enable him to recover compensation for his services, notes, 13 Ann. Cas. 977; Ann. Cas. 1915A, 1133; 44 L. B. A. 601; 9 L. B. A. (N. S.) 933.</p> <p>[4] Id.—Sale of Corporate Beal Property — Oral Agreement of Stockholder to Pay Commission—Sharing of Advantage—Personal Liability.—Where there is no evidence that the real property of the corporation contracted to be sold was not worth the agreed selling price, a stockholder owning a large part of the stock , of the corporation cannot be held personally liable for broker’s commission on an oral agreement he made with the broker for securing a purchaser for the property, on the theory that the agreement between him and the broker was to share an advantage, notwithstanding the purchaser subsequently forfeited all his first payment to the corporation to the stockholder’s advantage.</p> <p>[5] Id.—Agreement to Pay Definite Sum as Commission—Sharing of Advantage—Construction of Contract.—An oral agreement by a stockholder to pay a definite sum to a broker, as compensation or commission for securing a purchaser for the real property of the corporation, is not an agreement to share any advantage that, as a result of an advantageous sale, might indirectly accrue to the former as a stockholder in the corporation.</p>

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

<p>[1] Criminal Law—Assault With Intent to Commit Rape—Verdict —Sufficiency of Evidence—Appeal.—Where the testimony of the prosecutrix, a girl of the age of about eleven years, in a prosecution for assault with intent to commit rape, contains some evidence of every element of the crime, and it is not an irrational conclusion from the evidence in the case that the defendant is guilty as charged, the judgment of conviction will not be reversed on appeal on the ground of insufficiency of evidence to support the verdict.</p> <p>[2] Id.—Complaint by Prosecutrix—Evidence Admissible.—In a prosecution for assault with intent to commit rape, it is proper to permit a witness for the prosecution to testify that, shortly after the alleged occurrence, the prosecutrix made complaint to her, but such witness should not be permitted to go into the details of the affair.</p> <p>[3] Id. — Motive Influencing Witness — Objectionable Question— Harmless Error.—In such a prosecution, while the question, “Can you tell this jury here why they [the prosecutrix and her mother] told that story?” asked of the defendant on cross-examination, is objectionable in form, the error in overruling defendant’s objection thereto is not of sufficient gravity to justify a reversal of the judgment, particularly where, after the trial court, in overruling the objection thereto, gave his interpretation of the meaning of the question, the defendant expressed himself not averse to a question of that character, and his whole testimony showed that he did not know of any improper motive which might have influenced said witnesses.</p> <p>[4] Id. — Statements by Prosecutrix to Defendant — Evidence — Foundation for.—In such prosecution, the complaining witness having testified that at a given hour in the morning she and the defendant were in the hall of the rooming-house conducted by her mother and that he was the only man with whom she conversed, the trial court did not commit error in permitting a witness for the prosecution to testify that at about that hour, while occupying a room in such lodging-house, she heard the prosecutrix say: . “I am going to tell mamma,” notwithstanding it was not shown by that witness that the remark was made to the defendant or that he was present at the time.</p>

<p>[1] Criminal Law — False Pretenses — Sufficiency of Information.—In a prosecution for obtaining cattle under false pretenses, where it is clear from the allegations of the information that the defendant falsely represented in all his negotiations concerning the cattle mentioned in the information that he was acting as the agent of certain other persons, the fact that it is alleged that the cattle were delivered to the defendant does not render the information void in any respect, and a demurrer for uncertainty as to the offense charged is properly overruled.</p> <p>[2] Id.—Reliance upon False Representation—Evidence.—In such a prosecution, it is not error to overrule defendant’s objection to a question propounded by counsel for the people to the prosecuting witness, the purpose of which was to ascertain from the witness if he relied upon the false representations that defendant was the agent of certain named persons in the purchase of the cattle.</p> <p>[3] Id.—Weighmaster’s 'Certificates—Hearsay.—In a prosecution for obtaining cattle under false pretenses, based upon the alleged false representations of the defendant that he was acting as the agent of certain named individuals in the purchase thereof, a “Public Weigh Master’s Certificate of Weight and Measure” for the cattle, is clearly hearsay and inadmissible.</p> <p>[4] Id.—Acts of Third Party After Crime Consummated—Evidence.—In such prosecution, evidence of what the wife or some third party might have done after the crime had been fully completed and consummated by defendant is neither relevant nor material to the issue involved in the ease.</p> <p>[5] Id.—Intent of Defendant—Evidence—Error Without Prejudice.—Although the defendant in such a prosecution has the right to state to the jury his intent at the time he procured the cattle, the ruling of the trial court in sustaining an objection to a question asked the defendant concerning the intent with which he did the act does not constitute error prejudicial to defendant’s ease, where he testifies very fully as to the transaction and denies repeatedly ever having made the alleged fraudulent representations, and it is apparent from the evidence that a further statement by him to the effect that at the time he got the cattle from the prosecuting witness he did not intend to cheat or defraud him out of the cattle would not have changed the views of the jury or affected the result.</p> <p>5. Right of accused to testify as to his intent, notes, 12 Ann. Cas. 8; Ann. Cas. 1912D, 1045; 23 L. R. A. (N. S.) 367; 34 L. B. A. (IT. S.) 323.</p> <p>[6] Id.—Conflicting Evidence — Verdict — Appeal. — In this prosecution for obtaining cattle under false pretenses, based upon the false representations of the defendant that he was acting as the agent of certain named individuals in the purchase of the cattle of the prosecuting witness, the jury having disbelieved the story of the defendant, and the evidence against the defendant having been sufficient to support the verdict, that decision was final and conclusive on appeal.</p> <p>[7] Id.—Admission of Evidence Without Objection—Argument— Misconduct of District Attorney.—In such prosecution, evidence showing that the prosecuting witness received nothing from the defendant for his cattle having been received without objection, the prosecuting attorney was not guilty of misconduct in calling the jury’s attention to that fact in his closing argument.</p>

<p>[1] Bed-light Abatement Act—Conflicting Evidence—Credibility of Witnesses—Appeal.—In an action to abate a nuisance under the provisions of the Bed-light Abatement Act, the trial court having resolved a sharp conflict in the evidence as to the reputation of the place in favor of the plaintiff, and there having been sufficient testimony, if believed by it, to justify the conclusion, the appellate court cannot pass upon the credibility of the witnesses.</p> <p>[2] Id.—Single Act of Prostitution—Deductions from Attendant Circumstances—Existence of Nuisance.—In such an action, conceding that one act of assignation or prostitution does not constitute a nuisance under the provisions of the Bed-light Abatement Act, nevertheless the deductions to be drawn from a single act, when considered in connection with all the attendant circumstances, may properly form the basis for finding that the practice is habitual.</p> <p>[3] Id.—Judgment—Segregation op Portion op Premises Constituting Nuisance.—In such an action, where the premises proceeded against, consisting of a dining-room and grill and an inn above, are covered by one roof, and are under one management and conducted as one business, the trial court is not required to designate or segregate with particularity the portions of the establishment which constitute the nuisance but may include the entire premises in the decree.</p>

<p>[1] Red-light Abatement Act—Abatement of Nuisance—Sufficiency of Complaint.—In an action to abate a nuisance under the provisions of the Red-light Abatement Act, allegations that the defendants have used the premises,, “for the purpose of lewdness, assignation, and prostitution,” and that on a specified date the premises were occupied by certain named women “as lewd and dissolute persons, and then and there solicited acts of sexual intercourse,” are sufficiently clear and explicit to inform the defendants of the character of the charge against the property, and to tender an issue.</p> <p>1. Abatement of or injunction against bawdy-house, note, L. R. A. 1918D, 819.</p> <p>[2] Id.—Judgment—Sufficiency of Findings—Lewdness—Assignation—Prostitution—Scope of Terms.—In an action to abate a nuisance under the provisions of the Eed-light Abatement Act, a finding that the premises were used for purposes of lewdness, which was permitted and encouraged thereon, is sufficient to sustain a judgment in favor of the plaintiff, notwithstanding it is also found that no acts of prostitution or assignation were actually committed on the premises. The words “lewdness,” “assignation” and “prostitution” are not synonymous, the term .“lewdness” being of much broader significance than the other two words and including their meaning as well as all other immoral or degenerate conduct or conversation between persons of opposite sexes.</p> <p>[3] Id.—Conduct of Guests—Knowledge of Owner or Proprietor. In an action to abate a nuisance under the provisions of the Eed-light Abatement Act, it is not essential to the right of recovery that the owner of the premises or the proprietor of the business conducted have had actual knowledge of the vicious propensities and lewd conduct of the guests.</p> <p>[4] Id.—Use of Premises—Knowledge of Employee—Imputation to Proprietor.—In an action to abate a nuisance under the provisions of the Eed-light Abatement Act, the knowledge or gross negligence of the employees with reference to the use of the premises must be imputed to the proprietor.</p> <p>[5] Id.—Immoral Conduct at Other Places—Evidence—Harmless Error.—In an action to abate a nuisance under the provisions of the Eed-light Abatement Act, it is error to receive testimony of acts of prostitution at a neighboring hotel, but such error is without prejudice where there is ample evidence aside from that erroneously admitted to sustain the findings of the trial court.</p>

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

<p>[1] Common Carrier — Sale of Ticket — Means of Beaching and Alighting at Destination'—Duty of Carrier.—When a carrier of persons for hire sells a ticket entitling a passenger to ride on its train or other vehicle used for the transportation of passengers to a specified destination, it is the duty of such carrier to see that the. passenger is afforded all reasonable means for reaching and alighting at his point of destination with safety to himself.</p> <p>[2] Negligence — Failure of Carrier to Stop Train — Subjecting Passenger to Bisk—Liability fob Injury—Contributory Negligence.'—In failing to stop its train at the specified destination so as to enable a passenger to alight without subjecting him to some risk or danger to his personal safety and compelling him to leave the train while it is in motion, however slow the speed of the train is diminished at that point, the carrier is guilty of a violation of a duty which it owes to such passenger, and its negligence thus committed must be held to have been the proximate cause of the injuries received by such passenger in alighting, unless it can be held, upon a view of the evidence, as a matter of law, that such passenger was guilty of contributory negligence, without which the damage would not have occurred.</p> <p>[3] Id.—Contributory Negligence—Burden of Proof.'—Where contributory negligence is set up as a defense to an action for damages for personal injuries received through the alleged negligence of the defendant, the burden is upon the latter to prove such defense.</p> <p>[4] Id.—Alighting from Moving Train—Personal Injuries—Contributory Negligence.'—Whether one alighting from a moving train and thereby receiving personal injuries is guilty of contributory negligence is a question which must be determined from all the circumstances and conditions surrounding the passenger immediately prior to the injury.</p> <p>[5] Id.—Action for Damages—Injuries Deceived While Alighting from Train—Surrounding Circumstances—Negligence Per Se. In this action for damages fpr personal injuries "sustained by plaintiff in alighting from defendant’s train while it was in motion, in view of the facts that the train had slowed down to a rate of speed which would enable the average person of ordinary alertness to alight from it with safety, that another passenger had just alighted with safety, and plaintiff himself under like circumstances had on several previous occasions alighted safely from the same train while it was in motion, it could not be said that the act of plaintiff in jumping from the train involved such an act of imprudence or carelessness as to justify the declaration that it amounted to negligence per se or as a matter of law.</p> <p>1. Duty of carrier to see that passenger has alighted before starting train at station, note, 25 L. B. A. (N. S.) 217.</p> <p>[6] Id.—Failure to Stop Train—Alternative Courses Open to Passenger—Necessity for Instantaneous Decision—Injury-Liability.—"Where a passenger on a train finds himself suddenly placed in a position where he is compelled to decide in an instant of time whether he shall alight from the train while it is in motion and before its speed is increased or to go on to the next station, he is not to be expected to act with the highest degree of prudence, and if it happens that he has not exercised the best judgment or that degree of prudence which he would have shown under ordinary circumstances, particularly where his position has been brought about by the negligent or wrongful act of the railroad company, he should not be held to have been guilty of such negligence as would preclude him from recovery for such negligent or wrongful conduct of the company, where physical or other injury has resulted to him from the course he has, under such circumstances, elected to adopt.</p> <p>[7] Id—Inconsistent Testimony — How Considered — Province of Court and Jury.—In passing upon the testimony of a witness elicited on cross-examination, such testimony is not to be detached from his examination in chief or considered without reference to the latter; and it is for the court or the jury to determine how far, if at all, inconsistencies in the testimony of a witness go toward weakening such testimony or in impairing the credibility of the witness.</p> <p>6. Act in emergency as exonerating from charge of contributory negligence, notes, Ann. Cas. 1914D, 1217; 37 L. R. A. (N. S.) 43.</p>

<p>[1] Contracts Repurchase of Jennets — Breach — Action for Damages—Stipulation as to Testimony-—Evidence.—In an action for damages for breach of a contract whereby the defendant agreed to repurchase from the plaintiffs, if the latter decided to exercise their option to sell, “the same jennets” that were originally sold by defendant to plaintiffs, a stipulation, entered into between the parties that certain witnesses would testify that they made an examination of the animals on the date fixed by the option for the resale for the purpose of determining whether or not the jennets were the same animals sold by defendant to the plaintiffs, but that it could not be determined from such examination that the animals so shown to said witnesses were the same animals as were sold by defendant to plaintiffs, relates only to the particular examination of the animals made at that time, and while such stipulation is evidence, it is not conclusive proof of its contents.</p> <p>[2] Id.—Tender of Same Animals—Compliance With Bepurchase Agreement.—Where, according to the terms of such contract, the ■ defendant agreed to repurchase “only the same jennets that were in the original purchase,” the offer of the plaintiffs to return collectively the same animals received from defendant in the first instance constituted a sufficient compliance with the terms of their option for the resale, notwithstanding the inability- of the plaintiffs to specify each particular animal as demanded by defendant, according to the registration certificate.</p> <p>[3] Id.—Identity of Animals—Evidence—Finding.—In 'this action for damages for breach of a contract whereby the defendant agreed to repurchase from the plaintiffs, if the latter decided to exercise their option to sell “the same jennets” that were originally sold by defendant to plaintiffs, there was sufficient evidence to justify the conclusion of the trial court that defendant had the reasonable means of identification of the animals at hand, notwithstanding the hoof-marks on the animals had become obliterated from being worn off, and that the jennets offered to the defendant were the “same identical jennets” sold to plaintiffs by defendant.</p> <p>[4] Id.—Sale of Animals—Posting of Notice—Appeal—Presumption.—In such action, the plaintiffs having proved that notices of the sale of such jennets, after defendant’s refusal to repurchase the same, were posted in three public places for the required time, it will be presumed, on appeal, in the absence of evidence to the contrary, that the places where such notices were posted were within the township in which the sale took place.</p>

<p>EH Negligence—■ Automobile Collision — Injury to Passenger — Declarations of Driver—Evidence —■ Harmless Error. — In an action against an auto stage company for damages for personal injuries received by plaintiff, a passenger on one of its auto buses, as the result of a collision of the auto bus with another automobile, while testimony as to declarations made by the driver of defendant’s auto bus immediately after the accident is incompetent as against the auto stage company, such declarations not being part of the res gestae, its admission does not constitute reversible error where it does not differ materially from the testimony of the driver himself.</p> <p>[2] Id.—Cause of Accident—Evidence — Findings. — In this action against an auto stage company for damages for personal injuries received by plaintiff, a passenger on one of its auto buses, as the result of a collision of the auto bus with another automobile ■ at an intersection, under all the circumstances of the case—the rate of speed at which defendant’s bus was traveling, the fact . that the other automobile had the right of way, it having approached the intersection from the right, and that the vision of the approach of the latter automobile was obscured by a hedge— the trial court was justified in holding that the accident was the result of defendant’s negligence.</p> <p>[3] Id.—Damages not Excessive.—In this action for damages, in view of the "extent of the plaintiff’s injuries, the length of time he was confined to his bed, the expenses to which he was put, and the effect of the injuries on his earning capacity, it could not be said the damages awarded by the trial court was excessive.</p> <p>[4] Id.—Negligence of Driver of Other Automobile—Absence of Issue—Sufficiency of Findings.—In an action against an auto stage company for damages for personal injuries received by plaintiff, a passenger on one of its auto buses, as the result of a collision of the auto bus with another automobile, where the complaint alleges that the accident was due to the negligence of the defendant but no issue is presented respecting carefulness or negligence on the part of the driver of the other automobile, a finding of defendant’s negligence and that plaintiff’s injuries were proximately caused thereby is all that is necessary.</p> <p>1. Effect of speed and application of speed regulations on liability for collision between automobiles, or an automobile and another vehicle at or near corner of street or highway, note, L. B. A. 1916A, 747.</p> <p>Speed of automobile as negligence, notes, 25 L. B. A. (N. S.) 40; 38 Is. B. A. (N. S.) 488; 42 L. B. A. (N, S.) 1178; 51 L. B. A. (N. S.) 993.</p>

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

<p>[1] Forcible Entry and Detainer—Surrender of Possession on Demand—Evidence — Judgment — Immaterial Erroneous Findings.—In this action of forcible entry and detainer, the trial court having found that on the evening of a specified day plaintiff served defendant with written demand for possession of the premises in question and that “thereupon, pursuant to said demand, defendant surrendered possession thereof to plaintiff, and that defendant does not still unlawfully hold or continue in possession of same, against the form of the statute in such cases made or provided,” and such finding having been supported' by the evidence, judgment for defendant was proper, it being immaterial that the court’s findings in favor of defendant on the questions of the possession of the premises on and prior to that date and the unlawful entry thereon by defendant were contrary to the evidence.</p> <p>[2] Id.—Subsequent Entry, upon Premises—Absence of Demand for Possession—Judgment.—In such action, the trial court having found that, upon demand being made by plaintiff, defendant surrendered possession of the premises to plaintiff, properly ordered judgment entered in favor of defendant, notwithstanding the evidence showed that at a subsequent date defendant again went into possession of the premises and still remained there at the time of the commencement of the action, there being no showing that any subsequent demand was made on defendant to surrender possession of the premises.</p>

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

<p>[1] Trusts-—Assignment op Money Dub Under Contract—Receipt and Retention by Another—Knowledge op Assignment—Involuntary Trustee.—A .person who, with full knowledge of the title and. claim of another as assignee of the money due under a certain contract, wrongfully secures the money and wrongfully detains possession thereof, is an involuntary trustee of the money, under section 2223 of the Civil Code, for the benefit of such assignee, and the latter is entitled to recover the same from such trustee, irrespective of the willingness of Ms assignor to recompense him for the loss and without demand upon such assignor for that purpose.</p> <p>[2] Assignments — Rights op Assignee-—-P'ayment op Money to Prior Creditor.—A person, having assigned to another the money due under a certain contract, cannot thereafter satisfy an indebtedness to another which accrued prior to the assignment out of the moneys which he had thus assigned.</p> <p>[3] Trusts — Action Against Involuntary Trustee — Receipt op Money—Evidence—-Findings.—In this action against the director-general of railroads to recover certain moneys due under a contract which had been assigned to plaintiff, but which defendant had wrongfully secured, the evidence was sufficient to support the conclusion of the trial court that the allegations of defendant’s answer denying the delivery to him of the check covering the money due under such contract and denying that the check . or its proceeds were ever received by him or his officers or agents or retained by them, were not true.</p>

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

<p>[1] Trespass—Removal of Husband’s Property—Participation by Defendant—Evidence—Finding.'—In this action by the husband for damages for trespass alleged to have been committed by the attorney for the wife by wrongfully taking and removing from plaintiff’s house the furniture of the plaintiff and all of his personal property therein, the evidence was not sufficient to sustain the finding of the trial court that the defendant did not at all remove any of the plaintiff’s goods and chattels from said house.</p> <p>[2] Id.—Removal of Husband’s Property by Wife’s Attorney— Liability fob Damage.—In such action, plaintiff having proved that the property was his separate personal property left by him at his place of residence, and that during his absence it was taken away without his consent or knowledge, defendant having actively participated in the act of removal of the goods, plaintiff was entitled to recover compensation for - the damage resulting therefrom, unless by other evidence defendant was able to prove that his acts in the premises were not wrongful..</p> <p>[3] Id.—Marital Difficulties of Plaintiff and Wife—Irrelevant Evidence.—In such an action, the liability of the defendant arises from his acts wherein he took part in the removal of the property and not from any advice given by him to the wife as a counselor or attorney at law and, therefore, it is error to permit the defendant and other witnesses, over plaintiff’s objections, to testify to numerous statements made by the wife to the defendant concerning her difficulties with the plaintiff and the circumstances of his absence from home, upon which statements of fact the defendant based Ms advice to the wife.</p> <p>[4] Id. — Fitness of Place of Abode — Evidence — Presumption — Duty of Wife.—In such -an action, in the absence of evidence that the place and mode of living established by the plaintiff were either unreasonable or grossly unfit, the court must assume, in view of the provisions of sections 103 and 104 of the Civil Code, that the wife was under obligation to remain in the home so. established, or to leave her husband’s property there if she chose to go away.</p>

<p>[1] CORPORATIONS'—LIENS ON STOCK—-PRIORITY OE—PLEDGE OBLIGATION to Advance Money — Evidence—• Finding. — In this action against a corporation to determine the ownership of certain stock in that corporation, the plaintiff having purchased the stock on execution sale, the defendant having caused the stock to be sold as a pledge following .default by the stockholder in the payment of certain indebtedness to the corporation for which such stock ■was pledged, the evidence showed that notwithstanding the advances by the corporation for the payment of which the stock was pledged were not made until after the levy of the writ of execution, the corporation had, at the time of the creation of the pledge, which was prior to such levy, obligated itself to make such future advances; therefore, the trial court properly found that the lien created by the pledge of the stock to defendant was superior to the lien created by the levy of the writ of execution.</p> <p>[2] Id.—Validity oe Acts—Record not Essential.—A record of corporate acts and resolutions is not essential to their validity.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Liens—Payment oe Mortgage Under Order oe Court—Reversal oe Judgment—Subrogation to Lien oe Mortgage—Ownership—Evidence.-—In this action in which the court, under a supplemental complaint, decreed that plaintiff should be subrogated to the lien of the mortgage which had been paid by the clerk of the court out of funds deposited with him for that purpose pursuant to a judgment and decree of the court in the main case, which latter judgment and decree had been reversed on appeal, the evidence showed that the money which had been deposited with the clerk and paid on the mortgage was the money of plaintiff and not the money of her assignor and attorney.</p> <p>[2] Id.—Status oe Plaintiee—Litigation to Protect Rights—Return oe Original Investment — Equity. ■—The plaintiff having borrowed such money to invest in a perfectly legitimate transaction, which afterward developed into a complicated and seemingly endless subject of litigation, to deny her the amount of money originally invested by her in the transaction because of the part taken by her, upon the advice of counsel, in such litigation in an endeavor to protect her legal rights would be manifestly unjust and contrary to the established principles of equity and justice, particularly in view of the fact that the defendants, who had contributed nothing toward that fund but who would receive the benefit thereof if they were allowed to take the property free and clear of such lien, had received cash and credit sufficient to adequately compensate them for the use of the property during the years they were out of possession.</p>

<p>[1] Appeal—Findings—Sufficiency of Evidence.—If there is any substantial proof in the record to support the findings and decision of the trial court, the appellate court is bound by such findings, and the judgment of the trial court will not be disturbed.</p> <p>[2] Negligence—Overturning of Street-car—Action for Damages —Findings—Evidence.—In this action for damages for personal injuries sustained when a street-car of the defendant overturned, the evidence was sufficient to justify the findings of the trial court that defendant was not negligent in the operation of the car in the manner charged in the complaint.</p> <p>[3] Id.—Conduct of Motorman in Emergency.—Whether or not a motorman is negligent in adopting one of several courses open to him in an emergency is a question for the trial court.</p> <p>[4] Id.—Ultimate Fact—Sufficiency of Findings.-—In such action, the negligence pleaded in the complaint being the ultimate fact, the trial court, having found that defendant was free from all of the acts of negligence charged against it in the complaint, was not required to go further and find the facts which would explain the real cause of the overturning of the ear or to affirmatively find that defendant at the time of the accident was exercising the highest degree of care in the operation of the car.</p> <p>[5] Id.—Absence of Findings on Admitted Facts—Want of Prejudice.—In such an action, the plaintiff's are not prejudiced by the failure of the trial court to find on those facts about which there is no dispute, particularly where such facts are nc.t denied by the defendant’s answer.</p>

<p>[1] Negligence — Personal Injuries — Action for Damages — Release—Fraud—Proof by Circumstantial Evidence.—In an action against a street railway company for damages for personal injuries sustained while riding as a passenger on a street-ear of the defendant, it is error for the trial court to refuse to permit plaintiff to introduce evidence in support of her offer to prove by circumstantial evidence that a release signed by her was procured through the fraud and conspiracy of the agents of the company.</p> <p>[2] Id.—Practice of Fraud by Agent—Right to Accept Benefits. In such ease, it is immaterial whether the person who practiced the fraud upon plaintiff was an authorized or a self-constituted agent of the defendant, «because, in' either event, if an impecunious settlement was brought about through his trickery and falsehood, the defendant should not be allowed to take advantage of an unfair settlement thus made, accept the benefits thereof, and deprive plaintiff of a trial upon the real merits of the ease.</p> <p>[3] Id.—Release—Fraud—Question for Jury.—Where a release of a' claim for damages for personal injuries is tainted with fraud it should not be sustained, the question of whether or not such taint exists being one to be submitted to and decided by the jury.</p> <p>[4] Id.—Execution of Release by Neurasthenic.—A release of a claim for damages for personal injuries- executed by a profound neurasthenic should, under the law, be scrutinized with even more care than if she were in a normal condition.</p> <p>1. Right in an action at law to attack release for fraud, notes, 13 Ann. Cas. 756; 20 L. R. A. (N. S.) 915. '</p>

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

<p>APPLICATION for a Writ of Certiorari to review certain orders of the Superior Court of Sacramento County and C. 0. Busick, Judge thereof. Petition dismissed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>HI Judgments — Appeal—Reversal—New Trial — Res Adjudicata. The rule that the determination of the supreme court on a first appeal is not conclusive as to matters of fact which may be developed on a retrial applies only where new or additional evidence is received or offered on the second trial, the effect of which would or might be to change the ultimate facts or to show the inapplicability of the rules of law announced on the first appeal.</p> <p>[2] Attorney and Client — Negligence in Failing to Prosecute Action — Judgment on Former Appeal — • Damages — Instructions. Where the supreme court, on an appeal from a judgment in favor of the defendant in an action for damages for negligence of an attorney in failing to prosecute diligently a mortgage foreclosure suit which was dismissed for lack of prosecution after the statute of limitations had expired on the mortgage debt, decides as a matter of law that the defendant had been guilty, establishes the rule for the measurement of the damages, if any, and reverses the judgment, and on the retrial of the case no new or additional evidence is offered by the defendant on the question of its negligence, the jury is properly instructed that the only question to be passed upon by them is the amount of damages, the supreme court having passed on all other phases of the case.</p> <p>[3] Id.—Denial of Nonsuit—Failure to Make Proof of Payment —Error.—On the retrial of such action, even if there were technical error in the denial of defendant’s motion for a nonsuit on the ground that there was no proof that the note secured by the mortgage had not been paid, the judgment in favor of plaintiff will not be reversed where defendant had an opportunity and failed to make proof of the amount of any credit to which he might have been entitled.</p> <p>[4] Id.—Nonsuit—Statement of Ground.—On a motion for a non-suit, the ground of the motion should be stated, so that if the evidence is requisite, it might be offered by plaintiff and the oversight cured.</p> <p>[5] Id.—Estoppel to Maintain Action—Equitable Offsets—Rejection of Evidence.—Under the pleadings and the facts in this action for damages for negligence of an attorney in failing to prosecute diligently a mortgage foreclosure suit which was dismissed for lack of prosecution after the statute of limitations had expired on the mortgage debt, the trial court did not err in rejecting certain evidence offered by defendant which he claimed would have shown that plaintiff was estopped to maintain the action against him because the maker and the payee of the note and mortgage had so dealt with each other that it would have been inequitable for him to have sought to foreclose the mortgage, or because the maker of the note and mortgage had a valid claim against the payee thereof which might have been offset against the mortgage debt.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County and from an order setting aside a temporary restraining order. S. E. Crow, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Pleading—Denial on Information and Belief—Knowledge of Truth-—Judgment on Pleadings.—Denials in an answer on information and belief, with knowledge or means of knowledge of the truth or falsity of the allegations whether affirmative or negative in form, may he disregarded by the court, and where in such ease the answer fails otherwise to put in issue the material allegations of the complaint, judgment may and should be on motion duly presented, rendered, and entered on the pleadings.</p> <p>[2] Waters and Water Rights—Action for Injunction—Pleading —Issue—Immaterial Denial.—In an action for injunctive relief and damages against the defendants for the alleged wrongful interference with a water right to which plaintiff claims to be entitled, where the answer of the defendants admits that the plaintiff is entitled to the use of a certain designated quantity of the waters flowing in the creek in question, hut directly denies the allegation of the complaint that the plaintiff is -entitled to the quantity of water claimed by him in his complaint and then sets up a claim and right of the defendants to use one-half of the water of said creek, the issue as to the respective rights of the parties in the waters of said creek is squarely and directly made and tendered; and a further affirmative denial, on information and belief, that the plaintiff, and his predecessors, have never used more than a given amount of the waters of said creek, is wholly unnecessary and immaterial.</p> <p>[3] Id.-—Alternative Bse of Water—Evidence—Interlocutory Decree.—Where, on the trial of such an action, the evidence shows that for many years during the period of low water both the plaintiff and the defendants have been using the waters of the creek in question alternatively, one party using all of it for a time and then the other party all of it for a time,. the court may properly continue the further hearing of the case until after the summer months have passed, awarding to each of the parties the right to use all the waters of the creek for specified alternative periods during such months, in order to obtain additional and more satisfactory evidence by means of a practical test as to how the waters of the creek could be so used by the parties as to preserve to each their respective rights thereto.</p> <p>[4] Id.—Use of Water in Rotation—Evidence—Judgment.—Where, ■in such an action, the evidence shows that, in the low-water seasons, there is not a sufficient quantity or flow of water in the creek to permit a diversion of the stream and a simultaneous use of part by both parties without injury and it is clear from. the evidence that both parties are entitled to the use of the waters of the creek, the plaintiff’s rights being prior and superior to those of the defendants, the court is justified in finding that each is entitled to the use of the waters, in proportion to their respective rights, at different times, and in fixing the times when and the periods during which the parties should each have the exclusive right to use said waters.</p> <p>[5] Id. •— Relief Asked — Judgment Authorized. — Where the issue made by the pleadings in such action is as to how much of the water of the creek, if any, each of the parties. is entitled to take and use, it is within the power or discretion of the court to award to either party all -or less than their pleadings claimed and asked for, according as the evidence warranted.</p> <p>[6] Id.-—Costs—Rights of Parties.—Such an action being in fact and effect one for the determination of' adverse or conflicting claims to water rights, and, therefore, one involving the title to real property, both the plaintiff and the defendants, each having asked for affirmative relief, and each having secured in part by the decree some of the relief for "which they respectively asked, are entitled to costs as a matter of right; and it is error for the court to adjudge that neither the plaintiff nor the defendants should recover costs.</p> <p>[7] Id.—Rights of Upper and Lower Riparian Owners—Effect of Use or Disuse.—As between upper and lower riparian owners in the waters of a common stream, each has the right to the reasonable use of the stream on his own land and this right is neither gained by use nor lost by disuse, but constitutes a part and parcel of the land and of the ownership thereof. (Opinion of supreme court on denial of hearing.)</p> <p>[8] Id.—Unreasonable Use by Upper Owner—Injunction.—A lower riparian owner cannot complain of the use by an upper riparian owner, except by showing -that the upper owner uses an unreasonable quantity of the stream, having* regard to the needs of the lower owner, and, consequently, the lower owner cannot enjoin the use by an upper owner unless he alleges such unreasonable use to his injury. (Opinion of supreme court on denial of hearing-)</p> <p>7. Effect of nonuser on rights note, 30 L. R. A. 265. of prior appr ; ir; ators of water,</p> <p>Correlative rights of upper and 41 L. R. A. 737. lower proprieto i generally, note,</p> <p>[9] Id.—Use op Lower Owner—Rights Acquired.—A lower riparian owner gains nothing as against an upper riparian owner by the mere use of the water upon his own land, as- the upper owner is not concerned with the use made of the water after it passes beyond his boundary. (Opinion of supreme court on denial of hearing.)</p>

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

<p>[1] Mortgages—Foreclosure—Reasonableness op Attorneys’ Fees. In this action for the foreclosure of a mortgage on real property, there having been fifty-odd defendants, and the activities of the appellants, who were junior encumbrancers, having been most diligently carried forward, their counsel having presented to the court practically every technical problem the law permitted, and the judgment for plaintiff having been for nearly $6,500, the allowance by the court of attorneys’ fees in the sum of $250 was reasonable.</p> <p>[2] Id.—Service op Original Complaint—Waiver op Notice op Further Proceedings—Filing Nunc Pro Tunc—Want op Injury.— In an action for the foreclosure of-a mortgage on real property, an order made after judgment permitting the filing, nunc pro tunc, of a waiver by the mortgagors of notice of further proceedings after the service of the original complaint, if erroneous, is without injury to defendants who were junior encumbrancers.</p> <p>[3] Id.—Service op Amendment to Complaint—Recitals op Decree —Appeal—Presumption.—Where the decree in such action recites the service of tlie original complaint and the default of the mortgagors, but contains nothing to show whether or not the amendment to the complaint was served, it must be presumed on appeal —in the absence of affirmative showing to the contrary—that the amendment was regularly served and that evidence thereof was before the court when it made its decree.</p> <p>[4] Id.—Default in Interest—Election to Declare Debt Due— Exercise by Bringing Suit.—Where a mortgage provides that on default of interest the mortgagee might declare the entire debt due, and default iu the payment of interest is made, the mortgagee cannot more effectively exercise her option of declaring the debt to he due than by suing for it.</p> <p>[5] Id.—Cross-complaint ■—■ Irrelevant Pleading — Order Striking Out.—In an action to foreclose a mortgage on real property, a cross-complaint, filed without leave of the court by certain defendants, who were junior encumbrancers, is properly stricken out on motion of the plaintiff, where the matters set forth therein are not in any way responsive to the cause of.action of the plaintiff for the foreclosure of her mortgage and do not affect in any way the rights of such defendants in the matter of priorities as between themselves and plaintiff, or as between themselves and the other parties named in such eross-eomplaint.</p> <p>[6] Id.'—Affirmative Allegations of Answer—Failure to Introduce Evidence—Effect of General Finding. Against.—Where the defendants, sued as junior encumbrancers, in an action to foreclose a mortgage, allege that they are the owners of the mortgaged land under a conveyance from the original mortgagors subsequent in date to the mortgage sued upon, but on the trial they refuse to introduce any evidence, a general finding that the allegations of the answer are untrue does not constitute a determination that they did not receive the conveyance they alleged under oath they did receive, but merely that they did not prove what they alleged under oath.</p>

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

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

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

<p>[1] Appeal—Alternative Method—Reporter’s Transcript—Failure to File Notice oe Request and Undertaking.—On an appeal from a judgment under the alternative method, the appellate court will not regard the reporter’s transcript as a part of the record on appeal, where it was not on file at the time of the filing of appellant’s brief or during the entire, time allowed by the rules of court for filing of respondent’s brief, and no notice of request for such transcript was filed with the clerk of the superior court within the time prescribed by section 953a of the Code of Civil Procedure, and no undertaking to secure the reporter’s fees for the transcript was ever filed.</p> <p>[2] Id.—Expiration op Six Months—Jurisdiction to Grant Relief. After the expiration of six months from the default of the appellant in filing notice of request for a reporter’s transcript, the superior court is without jurisdiction to grant relief under section 473 of the Code of Civil Procedure.</p> <p>[3] Id.—Statute op Limitations—Pleading—Waiver.—The contention that a complaint in intervention did not state a cause of action because it showed on its face that it was barred by the statute of limitations cannot be considered on appeal, where the record on appeal does not show that such defense was raised in the trial court, either by demurrer or answer. (On denial of rehearing.)</p>

<p>[1] Estates op Deceased Persons—Sale op Assets—Power op Legatee or Administratrix.—A person has no authority, either as legatee under a will or as administratrix of the estate 'with the will annexed, to sell the assets of the estate, and, therefore, cannot delegate such authority to another.</p> <p>[2] Id.—Unauthorized Sale op Bond—Conversion—Power op Attorney—Evidence.-—-In an action for the conversion of a nonnegotiable mortgage bond which had been part of the assets of an estate, oral evidence of the contents of an alleged power of attorney to sell personal property, claimed to have been made by the person to whom such bond was bequeathed and who was the administratrix of the estate to her attorney, is properly excluded, such bond not having been sold in accordance with the provisions of section 1517 of the Code of Civil Procedure, before its amendment in 1919.</p> <p>[3] Id.—Delay in Commencing Suit—Laches.—Such legatee 'having died within four months after the discovery of the loss of the bond, the executor of her estate having been appointed a month later, and he having commenced suit to recover the bond within two and a half months thereafter, and nothing having occurred prior to the discovery by the deceased of the loss to put her upon inquiry, neither the plaintiff nor his testatrix was guilty of laches barring the action. .</p> <p>[4] Id.—Conveyance as Security por Return op Property—Ratification op Wrongful Sale—Evidence.—In such action, the trial</p> <p>court having found upon sufficient evidence that the deeds executed to plaintiff’s testatrix by the attorney who wrongfully sold such bond were executed for and intended as security for the redelivery of the bond within a reasonable time, and not in satisfaction or settlement of her claim against the attorney arising out of his sale and disposition of said bond, the acceptance of such deeds did not constitute a ratification and confirmation of such wrongful sale, so as to estop her" executor from suing the purchaser for the conversion of the bond.</p> <p>[5] Do.—Action Against Purchaser for Conversion—Section 726, Code op Civil Procedure, Inapplicable.—The provision of section 726 of the Code of Civil Procedure, providing that but one action can. be maintained for the enforcement of an obligation secured by a mortgage, is not applicable to an action against the purchaser of converted property for the return thereof or for its value in case delivery thereof could not be had, notwithstanding the person who committed such conversion has given the owner of the property security for the return thereof within a reasonable time.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Sacramento County. Chas. O. Busicb, Judge. Granted. The facts are stated in the opinion of the court.

<p>PROCEEDING- in Mandamus to compel the members of the plumbers' examining board of Alameda County to ex-</p> <p>amine petitioner. Petition denied and alternative writ discharged.</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>[1] Husband and Wipe—Divoboe—Mortgage Greater Than Value • op Community Property—Subsequent Acquisition by Husband Free prom Encumbrances — Interest op Former Wipe.—Where at the time of divorce the community property was subject to a valid mortgage executed to secure money used by the husband in the conduct of his business, which business was, presumably, conducted for the benefit of the community, and the rights of the parties therein were not adjudicated by the divorce decree, the fact that such property thereafter came into the hands of the husband clear of encumbrances under the distribution of the assets of a given corporation, representing an asset of the estate left by his father, cannot give the divorced wife a right to a one-half interest therein free and clear of the encumbrance it carried at the time of the divorce.</p> <p>[2] Id.—Dissolution op Community—Property to be Distributed— Excess op Indebtedness Over Value op Property—Bepresentation as to Existence op Community Property.—The community property to be distributed upon a dissolution of the community by divorce is the residue which remains after the discharge of the community obligations; and, inasmuch as all community property is liable for the husband’s debts, and subject to his control and disposition, where the total indebtedness of the husband exceeds the aggregate value of all of the community property, a representation by him to his wife that there is no community property is substantially correct.</p> <p>[3] Id.—Falsity op Bepresentation—Absence op Damage — Bight op Bescission.—Conceding that, under a strict technical construction, the representation of the husband that there was no community property was false, inasmuch as there was in existence some community property, although the same was of a value considerably less than the amount of the debts for which it was liable, the wife was not damaged by reason of her having entered into a separation agreement under which she received no part of the community property, in reliance upon such representation; and, under such circumstances, there is no right of rescission.</p> <p>1. Power of legislature to restrict husband’s right to alienate or encumber community property, note, 36 L. B. A, (N. S.) 1040.</p> <p>Liability of community property for debts, notes, Ann. Cas. 1913A, 319; 19 L. B. A. 233.</p>

<p>[1] Building Contracts—Substantial Performance — Recovery by Contractor—Recoupment by Owner.—A substantial performance of all the essential parts of a building contract, had in good faith, will entitle the contractor to recover the contract price, less compensation to the owner by way of recoupment for any damage resulting from trivial defects and imperfections due to inadvertence and not affecting substantive parts of the work, and this is especially true where the owner has received the benefit of what has been done and is enjoying the fruits of the work.</p> <p>[2] Id.—Probative Findings of Substantial Performance—Proof of Full Performance.—Where probative findings, made in an action to foreclose a mechanic’s lien for material furnished and labor performed under and pursuant to a written contract, show a substantial performance, had in good faith, they are not ineonsistent with but are in full accord, with and support an allegation and finding of full performance.</p> <p>[3] Id.-—Inconsistency Between Probative and Ultimate Findings —Construction op.—In such action, even though the probative findings of substantial performance were inconsistent with the ultimate finding of completion in accordance with the contract, the latter would control.</p> <p>[4] Id.—Substantial Performance—Question of Fact—Evidence.— The question as to what constitutes substantial performance of a building contract is one to be determined in each ease, having regard to the circumstances and facts thereof; and in this action to foreclose a mechanic’s lien for material furnished and labor performed pursuant to the terms of written contract, the evidence was sufficient to sustain the probative findings of a substantial performance of the contract, had in good faith.</p> <p>[5] Id.—Accusation of Wrong Acts — Evidence. — In an action to foreclose a mechanic’s lien, in which the defendant cross-complained for damages, the fact that one of plaintiff’s employees was charged with pouring grinding compound into the urinals and slop-hoppers, which caused a stoppage of the plumbing, necessitating repairs which cost defendant'a stated sum of money, constitutes no evidence in support of .an allegation that plaintiff committed such act.</p> <p>[6] Id. — Substantial Performance —: Recoupment for Defects — Measure of Damages.—Where the contractor in doing the work acts in good faith and performs it substantially in conformity to the plans and specifications, but there are some defects and imperfections by reason of which the value of the work is diminished, the owner is entitled to be recouped therefor by an allowance of damages, but he is not entitled to be compensated in damages for the removal and reconstruction of the work.</p> <p>6. Measure of damages for defective work- under a building contract, note, Ann. Gas. 1913B, 781.</p>

<p>[1] Municipal Corporations—Regulation op Operation op Elevators—Licensing op Operators.—An elevator being a dangerous instrumentality unless properly managed, it is within the province of a city council to safeguard the public against injury resulting from the incompeteney of those who are to be entrusted with the operation thereof; and to that end it may impose reasonable restrictions upon the right to enter that employment, by requiring a person seeking to engage therein to- procure a certificate that .he is skilled in that class of work.</p> <p>[2] Id.-—Los Angeles—Creation of Board of Mechanical Engineers—Usurpation of Bowers of Board of Public Works.— The ordinance of the city of Los Angeles providing for the creation of a board of mechanical engineers, to be appointed by the city council, and prescribing, among other things, that it shall be unlawful for any person to operate an elevator without first obtaining a license from such board, in so far as it provides for toe licensing of elevator operators by the board of mechanical engineers, is not in conflict with the provision of section 117 of the charter of that city giving the board of public works charge of the “use and operation of all . . . electrical and mechanical appliances” in buildings and structures in that city.</p> <p>[3] Id. — Appointment of Board by City Council — Violation of Charter—-Absence of.—Such ordinance, in providing for the appointment of the board of mechanical engineers by the city council instead of by the mayor, does not violate the charter of the city of Los Angeles or invade the jurisdiction of the mayor.</p> <p>PROCEEDING in Habeas Corpus to secure the release of petitioner from custody after conviction of violation of a city ordinance. Writ discharged and petitioner remanded.</p>

<p>[1] Criminal Law—Embezzlement—Habeas Corpus—Surplusage— Effect of Failure to Dent.—In a petition for a writ of habeas corpus in which it is alleged, among other things, that the petitioner “is imprisoned, detained, confined and restrained of his liberty” by the sheriff “by virtue of an indictment charging him with embezzlement under section 506 of the Penal Code of the State of California, as amended in 1919, a copy of which is herewith attached and made a part hereof,” the words “under section 506 of the Penal Code of the State of California, as amended in 1919” are mere surplusage and at most but an averment of a legal conclusion; and the failure of the sheriff in his return to deny such averment cannot be treated as an admission thereof.</p> <p>[2] Id.—Possession of Monet.—Appropriation to Own Use—Violation of Trust.— Sufficienct of Indictment. — An indictment charging that on or about a given date the accused was a contractor by virtue of a contract entered into with certain named individuals for the erection and construction 'of a dwelling-house, and he “was then and there by virtue of said contract relation and contractor, entrusted with and there came into the possession, care, custody, and control of him” certain money, the personal property of the persons with whom he entered into such contract, and that he did “unlawfully, fraudulently and felonious convert, embezzle and appropriate” a 'designated part of said money “to his own use, and to uses and purposes not contemplated by his said contract, contrary to his trust and contract and contractor’s relation as such contractor, servant and agent,” alleges, substantially, the crime denounced by section 503 of the Penal Code.</p> <p>[3] Id.—Sufficienct of Indictment — Surplusage — Discharge on Habeas Corpus.—Such indictment having stated facts showing the commission of an embezzlement, contrary to the provisions of section 503 of the Penal Code, the accused was not entitled to be discharged on habeas corpus, notwithstanding the indictment charged him with a violation of section 506 of said code.</p> <p>PROCEEDING on Habeas Corpus to secure the discharge of a person arrested under an indictment for embezzlement. Writ discharged and prisoner remanded.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Industrial Accident Commission. Petition denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Industrial Accident Commission. Writ denied.</p> <p>The facts are stated in the opinion of .the court.</p>

PROCEEDING on Habeas Corpus to secure the release of petitioner from custody on a charge of violating section 636 of the Penal Code. Writ discharged and petitioner remanded. • The facts are stated in the opinion of the court.

<p>[1] Divorce—Custody of Minors—Power of Court to Modify Decree.—In a divorce action, the trial court has the power to vary and modify its decree as to the custody of the minor children from time to time as circumstances change.</p> <p>[2] Id.—Welfare of Child—Controlling Consideration.—The controlling and paramount consideration in directing the custody of a minor child is the welfare of the child, and this the court must decide from all the facts of which it has obtained knowledge in a competent manner.</p> <p>[3] Id.—Modification of Decree—Discretion of Trial Court—Appeal.—An application for the modification of a decree as to the custody of a minor child is addressed to the sound and legal discretion of the trial court, and although it may award the care and custody of the children of a marriage to the guilty party, whatever may be the offense, its conclusion will not be disturbed on appeal unless it should clearly appear that its discretion has been abused.</p> <p>[4] Id.—Order Awarding Custody — Appeal —• Evidence — Jurisdiction of Appellate Court.—If the record on appeal discloses substantial evidence to support a rational inference that the order of the trial court awarding the custody of a minor child to one or the other parent is for the best interests of the child, and such evidence does not appear incredible, and there is nothing to impeach the fairness or good faith of the decision, the appellate court is without jurisdiction to disturb the determination of the trial court.</p> <p>2. Modification of provision in divorce decree as to custody of children in ease of refusal to permit access to or visitation of children as provided by decree, note, L. E. A. 1917B, 290.</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>[1] Street Law—San Francisco—Limitation of Assessment—Installment Provision — Construction of Charter and Ordinance.—Where street improvement work is done pursuant to the provisions of the San Francisco Street Improvement Ordinance of 1913, and it is declared in the resolution of intention to do such work that the assessment therefor may be paid in a given number (not exceeding ten) of annual installments, neither the amount of such assessment nor the amount of each installment is subject to the fifty per cent limitation found in subdivision 3, section 8, article FT, chapter 2, of the charter or in section iG of said ordinance.</p> <p>[2] Id. — Improper Items in Bid — Bemedy of Property Owner.— An objection to a street assessment, made for work performed pursuant to the provisions of such ordinance, on the ground that the contractor’s bid included certain sums for printing, engineering, and inspection, should be made before the board of supervisors.</p> <p>[3] Id.—Action to Foreclose Lien—Pleading—Defects Cured by Answer.—In an action' to foreclose a street assessment lien for work done pursuant to the provisions of the San Francisco Street Improvement Ordinance of 1913, the failure of the complaint to show on its face that the assessment was divided into installments and that the assessment exceeded the fifty per cent limitation is cured by the setting out of those facts in the answer.</p>

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

<p>[1] Deeds — Grant fob Railroad Purposes — Reversion fob Nonuser—Title Conveyed.—A grant deed conveying to a corporation “and to its successors and assigns, for the purpose of a railroad and the uses incidental thereto,” all the right, title, and interest of the grantor in a given strip of land, but providing that if any portion of such land “shall not be continuously used for such purposes and uses, then such portions ceased to be so used shall be excepted from this grant and revert to the grantor,” conveys title to such strip of land, and not merely an easement, and the proviso clause constitutes a condition subsequent.</p> <p>[2] Id.—Breach of Condition—Reserved Bight Transferable.—The right of the grantor to take advantage of a breach of such condition subsequent is a right capable of transfer, either before or after breach of the condition.</p> <p>[3] Id. — Conveyance of Surrounding Property — Reservation of Railroad -Strip.—The right of the grantor to take advantage of a breach of such condition subsequent is not transferred to his grantees of the surrounding property, where the deeds to such grantees expressly reserve or except the strip theretofore granted for railroad purposes.</p> <p>[4] Id.—Forfeiture of Right of Way—Statutory Provision Inapplicable.—Statutory provisions looking to a forfeiture of a railroad right of way cannot be applied in aid of a forfeiture claimed under a contract or condition created before the enactment of the statute.</p>

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

<p>[1] Street Law — San Francisco — Separate Improvements — One Resolution op Intention—Validity op Proceedings.—Proceedings for street work under the provisions of the 1913 San Francisco Street Improvement Ordinance are not void "by reason of the fact that more than one work is included in the resolution of intention and that crossing work is not separated from the street work; nor is a property owner thereby deprived of the right or power to protest the work.</p> <p>[2] Id.—Increased Costs—Remedy—Appeal to Supervisors.—If increased costs result from the fact that more than one work is included in a resolution of intention to do street work under the provisions of the 1913 San Francisco Street Improvement Ordinance and that crossing work is not separated from the street work, the remedy of the property owner is by appeal to the board of supervisors.</p> <p>[3] Id.—Division op Assessment into Installments—Number Required.—Division of an assessment into six installments is in accordance with the provisions of the San Francisco charter and 1913 Street Improvement Ordinance requiring annual installments covering a term not to exceed ten years.</p> <p>[4] Id. — Limitation op Installments — Application op Charter Amendment.—'"Where the proceedings for street work under the provisions of the 1913 San Francisco Street Improvement Ordinanee had not only commenced, but had continued up to the letting of the contract, before section 33 of article VI, chapter 2, of the charter, as amended so as to prohibit installments in excess of twenty-five per cent of assessed value of the property, went into effect, that limitation is not applicable.</p>

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

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

<p>[1] Criminal Law — Attempting to Escape from State Prison — Conviction—Appeal — Evidence ■— Insufficient Assignment of Error.—On appeal from a judgment of conviction of the crime of attempting to escape from a state prison, alleged errors in the trial court’s rulings respecting certain evidence cannot be reviewed where the assignments are in general language, the particular rulings objected to, or wherein any- rulings were erroneous, not being specifically pointed out.</p> <p>[2] Id.—Misconduct of District Attorney—Insufficiency of Specification.—On such appeal, alleged misconduct of the district attorney in his trial of the case will not be reviewed where the alleged misconduct is not specifically referred to and brought to the attention of the appellate court by the defendant.</p> <p>[3] Id.—Trial—Exclusion of Witnesses—Exception to Order—Abuse of Discretion.—In a prosecution for the crime of attempting to escape from a state prison, it is not an abuse of discretion to allow, over objection by defendant, the captain of the guard at the prison at the time of the attempted escape to remain in the courtroom during the progress of the trial, although an order had been made excluding all witnesses pending their being called to testify.</p>

<p>[1] Misrepresentations — Distinction Between Law and Fact — Knowledge op Facts—Advice of Counsel.-—Where a person does not conceal from another the facts constituting a cause of action, but only declares that those facts, well known to both parties, do not give rise to a cause of action, this is a representation of law and not of fact; and. the further representation by such person that he has been so advised by his attorney is not to be considered as a representation of fact, when distinguishing between representations of fact and law.</p> <p>[2] Id.—When Misrepresentations op Law Actionable—Fiduciary Delations—Superior Knowledge—Estoppel. — The general rule that misrepresentation of law is not actionable fraud and will not work an estoppel does not apply to transactions between parties holding fiduciary or confidential relatipns, or where one who has had superior means of information possesses a knowledge of the law, and thereby obtains an unconscionable advantage of another who is ignorant and has not been in a situation to become informed.</p> <p>[3] Id.—Meaning op “Confidential Delations.”—While the term “confidential relations” is ordinarily understood to apply to the relations established by law between attorney and client, husband and wife, guardian and ward, and other legal relations of this character, it is not confined to the strict fiduciary relationship existing between those having certain definite, well-recognized legal relations of trust and confidence, and so far as is germane to the subject of estoppel by fraudulent misrepresentations, this relationship can mean nothing less than that the one setting up the estoppel had the right to rely upon the representations. 0</p> <p>[4] Id.—Pleading—Confidential Delations — Sufficiency op Complaint.—The mere statement in a complaint that the plaintiff</p> <p>had .unlimited confidence in and relied upon the defendant is not a sufficient statement of the facts to show a confidential relation, but the facts must be alleged, from which the court can see that a confidential relation does in fact exist.</p> <p>[5] Bate—Action for Damages—Hostile Relationship — Statute of Limitations.—In an action for damages for assault or rape, the defendant is not estopped from pleading the statute of limitations in bar, where the complaint read as a whole shows that the relationship between the parties subsequent to the assault was not one of confidence, but one of hostility.</p> <p>[6] Estoppel—Absence of Confidential Relation—Reliance upon Representation—Diligence—Negligence.—Where no confidential relation exists, it is the duty of one setting up the estoppel to show, not only reliance upon the fraudulent misrepresentations, but also diligence in using the means at command or by inquiry, to ascertain the truth; and in this connection it must appear that in relying upon it he acted as a reasonably prudent person would act, and was not guilty of negligence or carelessness.</p> <p>[7] Rape—Action fob Damages—Pleading — Negligence — Statute of Limitations—Estoppel.—In an action for damages for assault or rape, where the complaint shows on its face negligence on the . part of plaintiff in taking no action of any kind to redress her known wrong for a period of two and one-half years after the assault, or to make inquiry concerning the truth of the representations by defendant that she had no right of action against him, the defendant is not estopped from pleading the statute of limitations.</p>

PROCEEDING in Certiorari to review an order of the Superior Court of Riverside County, and J. W. Curtis, Judge thereof, quashing a service of summons. Writ discharged. The facts are stated in the opinion of the court.

<p>[1] Criminal Law—Larceny—Misconduct of Prosecuting Officer —Admonition to Jury—Appeal-—Presumption. — In a prosecution under an information charging defendant and another with the crime of stealing hogs, the statement by the prosecuting officer, in his argument to the jury, that it is his theory that the defendant is one of a band of hog thieves does not constitute misconduct requiring a reversal of the judgment of conviction where, upon the defendant’s taking exception thereto, the court admonishes the jury to disregard such statement; and, upon an appeal from such judgment, the appellate court is bound to presume, in the absence o„f showing to the contrary, that the jury obeyed and heeded such instruction and admonition.</p>

<p>[1] Broker’s Commissions—Construction op Contract—Intention op Parties—Absence op Parol Evidence.—On an appeal from an adverse judgment in an action to recover a commission agreed to be paid in connection with the consummation of an exchange of real properties, the defendant cannot successfully contend that the parties themselves placed a construction on the contract differing from that adopted by the trial court and that a clause which had been stricken from the contract should be read into it, where on the trial of the case he introduced no testimony, either as to any oral negotiations prior to the contract or that the parties intended the contract to express anything else than was actually contained in the completed contract.</p> <p>[2] Id.—PArtial Assignment—Equity'—Pleading.—While an' assignment of part only of an entire demand is void, at law, unless done with the consent of the debtor, it is valid in equity; and the complaint in an action to recover part only of an entire demand, which fails to contain an allegation of such consent, is not demurrable for lack of facts.</p> <p>[3] Id.—Assignor as Party Dependant—Piling op Cross-complaint —Pleading — Sufficiency op Parties. — Where the assignor of part only of an entire demand declines to join with the assignee in an action thereon, but it is made a party defendant and responds by filing a cross-complaint, concurring in the allegations of the assignee’s complaint and joining in the prayer for relief, neither the complaint nor the cross-complaint is demurrable for want of parties.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Awárd canceled.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Justice’s Court Appeal—Failure op Sureties to Sign Undertaking—Eppect op.—Where the sureties sign only the affidavit of qualification attached to a form of undertaking on appeal from a judgment of a justice’s court, but not the undertaking itself, the undertaking is fatally defective and insufficient to confer jurisdiction upon the superior court.</p> <p>[2] Id.—Unwarranted Transmission op Record and Fees to Superior Court — Legal Eppect. •— Where the undertaking is not signed it is, in legal effect, no undertaking; the appeal is a mere nullity and, although the papers and records have been transmitted to the superior court, they are, as a matter of law, still in the office of the justice; and the fees paid for the purpose of perfecting the appeal, and which were also transmitted to the superior court, must be deemed to have remained in the hands - of the justice.</p> <p>[3] Id.—Second Appeal—Repayment op Fees—Duty op Superior Court Clerk.—In such a case the filing of a second notice of appeal within the time required by law, accompanied by a sufficient undertaking, is effectual to confer jurisdiction upon the superior court, although the fees are not again paid; and the record and fees having been previously (although prematurely) transmitted to the clerk of the superior court, all that remains for the justice to do is to transmit the additional papers, together with a complete copy of his docket, and it is the duty of the clerk of the superior court to refile the papers received on the first appeal as accompanying the second appeal.</p> <p>[4] Id.—¡Failure to Enter Judgment on Verdict—Premature Appeal.—Where a ease in a justice’s court is tried by a jury and no judgment is entered on the verdict, an attempted appeal from a purported judgment is prematurely taken and the superior court acquires no jurisdiction thereby.</p> <p>[5] Id.—Void Judgment—Uncertainty as to Judgment Debtor.— An entry in the docket of a justice’s court as follows: “Judgment entered for $74.00 and costs of suit,,” is void for uncertainty, in that it cannot he ascertained therefrom in whose favor the justice intended to enter judgment. (On denial of rehearing.)</p>

PROCEEDING in Mandamus to compel the Superior Court of Alameda County and Dudley Kinsell, Judge thereof, to set aside an order dismissing a Justice’s Court appeal. Writ issued. The facts are stated in the opinion of the court.

<p>[1] Broker’s Commissions—Unauthorized Contract by Uorbobation Officer-—Personal Liability.—Where an officer of a corporation assumes to act for the corporation and enters into a written agreement, in the name of the corporation, employing a real estate ^broker to sell certain real property of the corporation, knowing he has not the authority to do so, such real estate broker has the right to recover from such officer the reasonable value of the services he performs under the contract, if otherwise entitled thereto, in the same manner as he could were such officer the real principal in the transaction.</p> <p>[2] Id.—Presentation of Offer—Failure to Object—Liability for Commissions.—Such real estate broker having presented to such officer a written offer to purchase for the amount specified, accompanied by a deposit on account of the purchase price, and no objection of any kind having been made, such officer having accepted the offer as full performance, by plaintiff, of bis contract, and assured the broker that he had earned, and would be paid, the agreed commission, it became a binding obligation and neither the corporation nor such officer could defend against the broker’s claim for the agreed commission upon the ground that he had not produced a purchaser ready and willing to enter into a binding contract on the terms and conditions authorized by his contract of employment.</p> <p>[3] Id.—Reason for Conduct—Right to Change After Litigation Begun.-—Where a party gives a reason for his conduct as to anything involved in a controversy, he cannot, after litigation has been begun, change Ms ground and put Ms conduct upon another and different consideration.</p> <p>1. Liability of officer of corporation for corporate contract other than negotiable paper, notes, 48 Am. St. Rep. 913; Ann. Cas. 1913B, 902.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts—Sale of Automobile — Time of Essence — Acceptance of Past Due Installments—Waiver of Forfeiture Provision.—Where the contract for the sale of an automobile, the purchase price of which is payable in installments, expressly provides that acceptance by the owner of any payment after the same is due shall not constitute a waiver of the provision making time the essence of the contract, by accepting installments when • they are past due the owner does not waive its right to retake possession of the automobile upon further default, in accordance with the express terms of the contract.</p> <p>[2] Id.—Default of Vendee—Action for Bepossession—Status of Collateral Agreements—Immaterial Issues.—In an action by the vendee of such automobile to determine its rights therein, after default had been made in the payment of certain installments as provided in the contract and the vendor’s assignor had retaken possession thereof, the trial court having properly found and determined from the evidence that such assignor was authorized by the contract to retake possession of the automobile, it was not necessary to find further the amount, if any, owed to plaintiff by its vendee; neither was it necessary for the trial court to find whether a contract for the sale of the automobile entered into between such assignor and another, after the former had retaken possession of the automobile following the - default by plaintiff, was canceled or forfeited.</p> <p>[3] Id.—Bight of Possession—Pleading—Judgment — Interest.— In such action, the plaintiff having obtained possession of the automobile after the assignor of its vendor had retaken possession thereof, and such assignor, by way of a cross-complaint, having sought its return and at some stage of the proceedings having gotten possession thereof, which it had at the time of trial, the inclusion in the judgment of a specified sum “as interest upon the money invested in said automobile during the time plaintiff was wrongfully in possession thereof” is erroneous, there being neither allegation, finding, nor conclusion of law to which it responds.</p>

<p>[1] Criminal Law—Child-stealing—Intent—Conflicting Evidence —Verdict—Appeal.-—In a prosecution for the crime of child-stealing, under section 278 of the Penal Code, where there is direct conflict as to the intent of the defendant as to both the taking and detaining of the minor, the verdict of the jury cannot be disturbed on appeal.</p> <p>[2] Id.—Consent of Child—When Immaterial.—In such prosecution, the jury having found, upon a conflict of evidence, the presence of an intent by defendant as to both the taking and detaining of the minor, the question whether she accompanied the defendant of her own volition is immaterial.</p> <p>[3] Id.—ENticing Away Minor—Domination Over "Will Unnecessary.—Under section 278 of the Penal Code, one who maliciously or fraudulently “entices” away a minor child is guilty of child-stealing, and the minor may be “enticed” away without any domination over his-or her will.</p>

<p>[1] Estates op Deceased Persons—Special Administration—Functus Ofpicio Orders—Certiorari.—Where certain orders, under which it is assumed that a special administrator claims authority to pay out certain sums of money for the harvesting and marketing of a crop of grapes belonging to the decedent and for the satisfaction of a chattel mortgage on said crop, have served their purpose and become functus officio, the writ of review will not be granted, upon the application of an heir of the deceased, to annul them, notwithstanding they were in excess of the court’s jurisdiction.</p> <p>[2] Id.—Void Orders—Wrongful Payments — Settlement op Account—Appeal.—If such orders are beyond the jurisdiction of the court, they will afford no protection to the special administrator because of tie payment of those sums; and if such payments are made by the special administrator wrongfully and without authority and the same are allowed by the superior court in the settlement of his account, an heir has a plain, speedy, and adequate remedy by appeal from the order settling such account.</p>

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

<p>[1] Municipal Corporations — Construction ox Pipe-line — Extra Work — Noncomfliance With Contract — Liability ox City.— Where a contract with a municipal corporation for the construction of a water-pipe line for the city’s water supply specifies the precise conditions under which alone it will be obliged to pay for extra work, but this method is not followed by the contractor, there can be no recovery for such extra work under the contract.</p> <p>[2] Id.—Implied Contract.—An implied contract does not arise for work done for a municipality under an ultra vires contract.</p> <p>[3] Id.—Powers ox City Engineers—Ordering ox Extra Work— Liability ox City.—Where city engineers are not permitted to contract on behalf of the city under the terms of the contract defining and limiting their powers, they cannot by their conduct give rise to an implied contract; and the city cannot be held liable to a contractor for the acts of such engineers in ordering extra work.</p> <p>[4] Id.—Powers ox Oxxicers ox Corporation—Implied Knowledge.— - One dealing with a municipal corporation is chargeable with knowledge of the limitations of power of its agents and officers.</p>

<p>[1] Deeds—Parent to Child — Fraud or Undue Influence — Presumption-—Prima Facie Case—Burden of P'roof.-—While there is no presumption that a deed by a parent conveying property to a child is invalid or void and, when such a deed is attacked on the ground of fraud or undue influence, the burden is cast upon the parent to prove such fraud or undue influence, when a prima facie case of fraud or undue influence in the procurement of the conveyance is made by the parent, it then rests with the defendant to produce sufficient evidence to so weaken or destroy the effect of the evidence presented by the plaintiff as. that the latter’s evidence cannot longer stand as establishing a prima facie case either of fraud or undue influence, or both.</p> <p>[2] Id.—Preference of One Child to Exclusion of Others—Absence of Fraud or Undue Influence—Duty of Courts.—Where property is obtaiped without a valuable consideration by a child from its parent, particularly where one child, to the exclusion of other children of the parent, receives from the latter, without a valuable consideration, a very large part of the patrimony to which all the children would in equal shares succeed under the law of descent or succession in ease of intestacy, the courts are required to scan or examine the transaction serutinizingly and to require the defendant, where fraud or undue influence is prima-facie established as against him in the transaction, to make very satisfactory proof that the showing on the part of the plaintiff is wholly without foundation for its support.</p> <p>[3] Id.—Action to Set Aside—Ultimate Fact—Proof by Circumstantial Evidence.—In an action to set aside a deed made by an aged parent to her son to the exclusion of her other adult children on the grounds that the same was procured from the grantor by the grantee through imposition upon the former or misrepresentation and undue influence, the ultimate fact may be established by circumstantial evidence; and in this action, while there was no direct testimony showing coercion -or the exercise of undue influence by the grantee, the appellate court could not say, as a matter of law, that the findings upon which the judgment rested were not so fortified evidentially as to render them entirely immune from successful attack.</p> <p>1. Presumption and burden of proof as to undue influence respecting gifts inter vivos from parent to child, notes, 17 Ann. Cas. 989; Ann. Cas. 1915D, 711; Ann. Cas. 1918B, 457; 35 L. R. A. (N. S.) 944.</p> <p>[4] Id.—Conversation With Grantor After Execution—Admission Against Interest—Evidence.—In an action to set aside a deed made by an aged parent to her son on the grounds that the same was procured from the grantor by the grantee through the imposition upon the former of misrepresentation and undue influence, evidence of a conversation between the grantor and the grantee, after the deed had been executed and delivered, in which the former accused the latter of misrepresentation in procuring the execution and delivery of the deed, which accusation the latter did not at the time deny, is admissible.</p>

<p>[1] Adverse Possession — Dedication to Public Use — Evidence-Finding.—In this action by a county to quiet title to a strip of land acquired by it for the purpose of a public road and ferry crossing, but to which the defendant claimed title by adverse possession and user for a period of upward of thirty years, from the evidence showing that the land in question has been in use by the public as a road, and that appraisers appointed by the supervisors had prepared a map showing the location of land to be acquired, and had designated the land in question “New Road,” followed by a deed of conveyance to the county, for a money consideration, the trial court was justified in finding that the land had been accepted and used as a public road and ferry crossing.</p> <p>[2] Id.—Accretion—Application op Law to County Property.— The law of accretion applies to the property of a county as well as to that of an individual.</p> <p>[3] Id.—Discontinuance op Public Use—Acquisition by Adverse Possession.—Property once dedicated, set apart, or held for a public use cannot be acquired by a private owner by adverse possession, even while its public use may be discontinued.</p> <p>[4] Id.—Abandonment of Public Use—Intention — Nonuser. — To effect an abandonment of an easement or public use of property acquired by grant to the public authorities, the intention to abandon must be clearly manifest. Mere nonuser of an easement acquired by grant does not amount to an abandonment.</p> <p>[5] Id.—Intention to Abandon—Evidence of.—Neither the action of the board of supervisors in releasing the ferryman who was operating a ferry across the river from the land which had been dedicated to public use as a road from the obligation of operating such ferry, and a year later granting a license to a new man to operate a ferry at that point, nor the fact that the latter operated the ferry in whole or in part between new lands, and used different approaches to the landings, showed an intention on the part of the public authorities to abandon the road, such events being merely evidence of a nonusor of the land in question by the public as a highway.</p> <p>[6] Id.—Clearing and Cultivation—Profit — Estoppel. — The fact that the county allowed defendant to clear and cultivate the land . in question will not estop it from asserting title to such land, particularly where the defendants profited by the use of the land in excess of the expenditure made in clearing it.</p>

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

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

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

<p>[1] Contracts—Sale of Lambs—Offer of Performance by Seller — When Sufficient. — The obligation of the seller of certain lambs to deliver them to the purchaser at a designated station on a specified day is extinguished by an offer of performance only when such offer is made in' accordance with the rules prescribed in sections 1485 to 1505 of the Civil Code.</p> <p>[2] Id.—Oral Modification of Written Contract—Reliance upon Representations of Seller—Estoppel.—Regardless of the rule requiring modifications of written contracts to be evidenced by writing, ■ one party to a contract may not, on the pretense of desire on his part to depart from the exact performance of a nonessential detail, induce the other party to believe that delivery of goods sold will not be made either at the time or place specified in the contract, and then take advantage of the other’s reliance upon Ms representations.</p> <p>[3] Id.—Action for Damages—Error in Admission of Evidence-Miscarriage of Justice—Appeal.—In this action for damages for breach of a written contract for the sale by defendant and purchase by plaintiff of certain lambs, conceding that the trial court committed error in admitting evidence of an oral agreement changing the time of delivery, there was sufficient other evidence to support the findings of the trial court in favor of the plaintiff and, there not appearing to have been any miscarriage of justice, the case was peculiarly within the constitutional restriction on the power of appellate courts to reverse judgments for error in the admission of evidence, unless the court is of the opinion that there has been such a miscarriage.</p>

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

<p>[1] Fraudulent Conveyances—Judgment Against Grantor—Admissibility Against Grantee.—In an action by a judgment creditor to recover from the wife of the judgment debtor the net amount which she had received from the sale of certain real property which had been transferred to her without consideration by her husband at a time when he was indebted to plaintiff and at a time, when he was insolvent, the judgment against the husband in the prior action is admissible against the wife, although she was not a party to that action.</p> <p>[2] Id. — Judgment as Prima Facie Evidence. — Where a judgment creditor attacks his debtor’s conveyance as fraudulent, his judgment against the debtor is prima facie evidence of his claim as against the grantees of the debtor.</p> <p>1. Conveyance from husband to wife in fraud of creditors, note, 90 Am. St. Rep. 499.</p> <p>[3] Id.—Insolvency op Grantor—Hulla Bona Return on' Execution —Evidence.—The conveyance to the wife having been made without valuable consideration, after demand had been made upon the husband, the grantor, for payment of the indebtedness he had guaranteed and which was then past due, and just a month before action was commenced against him upon said demand, the return nutta bona of an execution on the judgment against him in such action made out a prima facie case of insolvency at the time of the transfer to the wife.</p> <p>[4] Id.—Effect op Transfer—Remedy op Creditor—Sale by Sheriff.—So far as existing creditors are concerned, the title and ownership of the property conveyed with intent to defraud creditors remains in the fraudulent grantor as fully as though no transfer had been attempted, and the transfer being void as against them, a creditor may seize and sell the property under execution, and the sheriff’s deed thereto transfers the legal title itself, and not a mere equity.</p> <p>[5] Id.—Action to Enforce Trust—Investment op Funds—Lien— Equity.—’Where the creditor chooses to treat the fraudulent grantee as a trustee of such property, holding it for its debtor for the benefit of his creditors, and brings an action in equity to enforce such trust, he has the right to follow the trust property, regardless of the form in which it is found; and where the trust property has been sold and the funds invested in improvements upon other property of the fraudulent grantee, a court of equity may decree a lien upon such property to the extent of such investment.</p> <p>[6] Id.—Void Deed—Sale and Investment op Funds—Declaration of Homestead.—The deed to the wife having been void ab initio, and, as to the creditors of the husband, she never having acquired any title to the property, by turning the same into money, and by reinvesting this money, she could not improve this condition; neither could she make the .void title good by filing a declaration of homestead covering the property in which the money was invested.</p> <p>[7] Id.—Bankruptcy Proceedings—Jurisdiction op Property.—Such property having been acquired by the husband before his marriage and, as to the creditors of the husband, the wife never having acquired any title thereto, the property could not be set aside to her as exempt in bankruptcy proceedings dealing with her estate.</p>

<p>[1] Abatement-—Action fob Damages—Death of Plaintiff.—Where the plaintiff in ah action for damages for personal injuries dies after rendition of judgment, and such judgment is not vacated or set aside, the action does not abate.</p> <p>[2] Negligence — Concurring Acts of Codefendants — Recovery Against Either or Both.—Where the injury to plaintiff resulted either from the negligence of one defendant or the other, or from the negligence of both, the plaintiff may recover against either, or both of the defendants, whose concurring acts of negligence united in producing the injury.</p> <p>[3] Id.—Degrees of Negligence Immaterial—Concurrent Liability. In an action for damages for personal injuries sustained in an automobile collision, if it is established to the satisfaction of the jury that the plaintiff’s injuries were caused by the concurring negligence of the two defendants, either defendant is liable without regard to the negligence of its codefendant, notwithstanding the fact that one may have been wanton and reckless and that the other simply manifested want of ordinary caution.</p> <p>[4] Id.—Burden of Proof—Refusal of Proper Instruction—Lack of Prejudice.—In this action for damages for personal injuries . sustained by plaintiff in a collision between an automobile owned by a film company and that owned and operated by a stage company, a requested instruction “that the burden of proving the negligence of defendant American Eilm Company rests upon plaintiff and in order for plaintiff to recover against defendant American Film Company it must establish such negligence by a preponderance of the evidence” contained a correct statement of law, and, while it was error to refuse it, in view of other instructions given, the error was not prejudicial.</p> <p>2. Concurrent negligence of two or more persons resulting in injury to a third person, note, 16 Am. St. Rep. 250.</p> <p>[5] Id.'—Bight to Becover—Erroneous Instruction Immaterial.— In such action, it was error for the court to instruet the jury that “plaintiff is entitled to recover of at least one of these defendants and perhaps both of them. That is a question for you to determine. There is no question of contributory negligence or unavoidable accident involved,” but, as the entire record clearly established the fact that a verdict for both the defendants would have been contrary to the evidence, the error was immaterial.</p> <p>[6] Id.—Form op Verdict 'Submitted—Form Omitted Without Prejudice—Such action having been tried upon the theory that plaintiff was entitled to recover of either one or both of the defendants, each of whom endeavored to fasten the liability upon the other, the court properly submitted but three forms of verdict to the jury: one for damages against both defendants; the second for damages as against the defendant stage company and in favor of the defendant film company; and the third for damages against the defendant film company, and in favor of the defendant stage company; and in view of the record, no prejudicial error resulted from its failure to submit a form of verdict finding in favor of both defendants.</p> <p>[7] Id.—Weight op Evidence—Interest op Witnesses—Unnecessary Instruction.—In this action, the court having instructed the jury that they might, in weighing the evidence and determining the credibility of the witnesses, consider “their relation to the parties” and “their interest, in the case,” it was not necessary that it give the further instruction: “Plaintiff, of course, is interested" in Ms case and the employees of both defendants are interested. You are not on that account, however, solely to disbelieve any of them. You are merely to consider that interest in passing upon their credibility,” but as this latter instruction included witnesses on all sides of the case, the giving of it was not prejudicial error.</p>

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

<p>[1] Criminal Law—Assault With Intent to Commit Eape—Separate Acts Committed on Same Day—Failure op Election by District Attorney—Absence op Proper Instruction—Prejudicial Error.—In a prosecution for the crime of assault with intent to commit rape, it is prejudicial error to permit the district attorney to prove several distinct and separate acts of the defendant committed on the same day, either one of which might have been included within the charge made by the indictment, and to fail in the instructions to the jury to point out the particular act of those shown as being the one at which the charge in the indictment was directed.</p>

<p>APPEAL from a judgment of the Superior Court of San Mateo County. George H. Buck, Judge. Affirmed in part; reversed in part.</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>[1] Criminal Daw — Withdrawal of Plea — Discretion of Tbial Court—Appeal.—An application to withdraw a plea of guilty and substitute a plea of not guilty is addressed to the discretion of the trial court, and its ruling thereon will not be disturbed in the absence of a clear abuse of discretion.</p> <p>[2] Id.—Murder—Determination of Deoree of Crime—Second Arraignment — Sufficiency of Prior Determination, — The trial court, following the defendant’s plea of guilty, having taken evideuce and having determined therefrom prior to the pronouncement of judgment that the defendant was guilty of murder in the first degree, but such judgment having been vacated on motion, on the second arraignment of the defendant it was not necessary that the trial court again examine into the evidence and determine anew the degree of the crime prior to pronouncing the second judgment.</p> <p>[3] Id.—Degree op Crime—Evidence—Finding.—In this prosecution for the crime of murder, in which the defendant pleaded guilty, the evidence before the trial court was such as to justify it in determining that the defendant was guilty of murder in the first degree.</p>

<p>[1] Judgments—Payment and Satisfaction—Contribution—Credit on Independent Judgment — Procedure for Enforcement. — Where one defendant in an action pays and satisfies a judgment which in equity and good conscience should be paid by his codefendant, but the former does not comply with the provisions of section 709 of the Code of Civil Procedure as to the manner of enforcing contribution by the latter without resort to suit, the former is not entitled, on motion, to have such judgment, or the payment made in satisfaction thereof, credited on a judgment obtained against him in an independent action in which such codefendant was plaintiff.</p>

Angeles County denying a motion to set aside a judgment. 'J. P. Wood, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Lewis W. Andrews, Thomas O. Toland, A. V. Andrews and Andrews, Toland & Andrews for Appellant Outer Harbor Dock & Wharf Company.</p>

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

<p>[1] Appeal—Reversal op Judgment—Striking Out op Cost Bill— Review op Order—Time.—The effect of a reversal of a judgment suspending an attorney at law from practicing his profession upon the ground that the same was not warranted by the evidence is to remand the ease for a new trial; therefore, an appeal will not lie directly from an order striking out a bill for costs and disbursements at the trial and on appeal, served and filed upon the going down of the remittitur following such reversal of the judgment, but a review thereof can be had only upon an appeal from the judgment entered upon the retrial of the case.</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 Mandate to compel the San Francisco Police Commissioners to honor petitioner’s demand upon the police relief and pension fund. Writ granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Excessive Speed op Train—Pleading.—Where it is alleged that a train was negligently operated at an excessive rate of speed, special facts must also be alleged to show why the high speed was negligent in the particular case.</p> <p>[2] Id.—Pleading in General Teems.—Negligence may be pleaded in general terms, without stating the facts constituting such negligence.</p> <p>[3] Id.—Collision op Train With Automobile—Cause of Accident —Besultant Injury—Action for Damages—Pleading.—In an action for damages for the death of plaintiff’s wife as the result of a collision of one of, defendant railway company’s electric trains with an automobile in which the deceased was riding, an allegation in the complaint that the train was negligently operated in such a manner that those charged with its management did not see the' automobile, which was stalled on the tracks, raises an issue of fact on the question of negligence, and where it is further alleged that “by reason of the accident, due to the negligence and carelessness of the defendants herein as aforesaid,” plaintiff’s wife “was struck by said train,” etc., the complaint is sufficient as against general demurrer.</p> <p>1. Speed of train as. negligence in absence of prohibitory statute, notes, 7 Ann. Cas. 988; Ann Cas. 1914B, 602.</p> <p>Bight of recovery of traveler crossing in front of train as affected by speed of train, note, 21 Ann. Cas. 1174.</p>

<p>[1] Habeas Corpus—Infection With Communicable Disease—Evidence—Finding.—On this application for a writ of habeas corpus to secure the release of a woman imprisoned by a city health officer on the ground that she was infected with a certain communicable disease, the finding of the commissioner appointed by the court to take the evidence that two distinct, infectious, and communicable diseases were present at the time of the issuance of the writ was supported 'by the evidence presented, and was conclusive; and there was no evidence that either of those diseases had been eradicated since- that time.</p> <p>[2] Id.—Submission to Examination — Duress — Effect of Police Court Methods.-—The fact that on the hearing of the charge of vagrancy on which the petitioner was arrested the police judge stated that in every such case the woman is sent to be examined by the clinical officer, and if she passes, the case is dismissed, did not render such method of releasing persons thus charged, as a matter of leniency, the basis of a charge of duress, the petitioner having, after such hearing, voluntarily submitted to the examination.</p> <p>Eight of one detained pursuant to quarantine to habeas corpus, note, 2 A. L. E. 1542</p> <p>[3] Id.—Discharge oe Writ — Jurisdiction to Grant Rehearing.— After the alternative writ of habeas corpus is discharged and the petitioner is remanded to custody, the court has no jurisdiction to grant a rehearing. (On denial of rehearing.)</p> <p>PROCEEDING on Habeas Corpus to secure the release of a person imprisoned on the ground that she is infected with a communicable infectious disease. Writ discharged and petitioner remanded.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge. 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>[1] Criminal. Daw—Homicide—Self-defense — Bad Beputation of Deceased—Evidence.—In cases of homicide where the plea of self-defense is interposed and the evidence before the jury leaves it in doubt whether the deceased was the aggressor, or where the . circumstances attending the homicide render it doubtful or equivocal whether the defendant was justified in believing himself in imminent danger at the hands of the deceased, evidence as to the bad reputation of the deceased is admissible.</p> <p>[2] Id. — Opportunity to Present Defense •—• Becord on Appeal.— On this appeal from the judgment of conviction of manslaughter, in a prosecution for murder in which the killing was admitted but the defendant attempted to justify it on the ground of self-defense, the record did not sustain the appellant’s contention that he was not given an opportunity to present in Ms defense evidence as to the bad reputation of the deceased.</p> <p>1. Evidence of character and reputation of deceased on trial for homicide, notes, 124 Am. St. Eep, 1018; 4 Ann. Cas. 338; 8 Ann. Cas. 357; 11 Ann. Cas. 229; 2 L. R. A. (N. S.) 102; 3 L. R. A. (N. S.) 352. '</p>

<p>[1] Deeds—Signature by Persons not Named as Grantors—Effect of.—A deed signed and acknowledged by persons named therein as grantors, and by others as well, is not the deed of those not mentioned in the body of the instrument as grantors.</p> <p>[2] Id.—Nature of Instrument—Conveyance in Praesenti—Intention of Parties—Determination of.—To determine whether a written instrument is in itself a conveyance or an agreement to convey, it is necessary to inquire for and ascertain, if possible, from the whole instrument, just what the intention of the parties was; and in determining the intention, the first rule is to ascertain whether the language imports a present conveyance, or whether, collecting all its parts, it contemplates a further assurance to pass the title.</p> <p>[3] Id.—Agreement to Convey—Construction of Instrument.—A written instrument containing a provision by which the parties of the second part, after complying with certain prerequisites, “bind' themselves to give a good and sufficient deed,” etc., and which is signed by both parties thereto, constitutes an agreement to convey and not a conveyance in praesenti, notwithstanding such instrument commences with the recital that, for a specified consideration, the parties of the second part “have this day bargained, sold and delivered” to the party of the first part the property in question.</p> <p>[4] Pleading—Amendment After Trial—Absence of Evidence to Support.—After trial of an action to quiet title, it is error to permit the plaintiffs to strike from their complaint an allegation that certain named individuals “entered into an agreement, whereby they agreed to sell” certain property rights to one of plaintiffs’ mesne grantors, and insert in the place and stead thereof that said individuals “bargained and sold and delivered” such property rights to said mesne grantor, where there is no legal evidence before the court justifying the same.</p>

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

<p>[1] Bed-light Abatement Act — Action to Abate Nuisance — Knowledge of Owner Unnecessary.—In an action brought to abate a nuisance under the Bed-light Abatement Act, a judgment supported on findings that acts of lewdness, assignation, and prostitution were conducted and maintained on the premises in question, regardless of the knowledge of the owner thereof, is sufficient.</p> <p>[2] Id.—Bight to Jury Trial.—In an action brought to abate a nuisance under the Bed-light Abatement Act, it is not error to deny defendants a jury trial.</p>

<p>[1] Evidence—Conflicting Testimony—Province of Trial Court— Appeal.—In an action for money claimed to have been loaned by plaintiff to defendant, if the testimony is conflicting, that of plaintiff showing that the money was advanced to defendant purely as a loan and that of defendant tending to prove the money was paid as a part of the purchase price for an interest in a certain business, it is the province of the trial court to determine which one of these witnesses is entitled to belief, and it having resolved the conflict in favor of the plaintiff, such determination is conclusive on appeal.</p> <p>[2] Findings—Service of.—Where the trial court does not direct the preparation of findings, service of proposed findings is not necessary.</p>

<p>APPEAL from an order of the Superior Court of Kings County dismissing an action for failure to serve the summons within three years. M. L. Short, Judge. Affirmed.</p> <p>The facts are the same as in People v. Kings County Development Co., ante, p. 72, [191 Pac. 1004.]</p>

<p>[1] Fish and . Game — Extent op State Sovereignty — "Validity op Section 636, Penal Code. — Writ discharged and petitioner remanded on the authority of Matter of Mm'incovich, ante, p. 474.</p>

<p>[1] Elections — Becall—Suppiciency op Petition. — Petition denied and alternative writ discharged on the authority of Fraser v. Cummings, ante, p. 504.</p>

PROCEEDING in Mandamus to compel a city clerk to certify a recall petition. Petition denied and alternative writ discharged. This case presents the same issues as those involved in Fraser v. Cummings, ante, p. 504.