Volume 5 — California Appellate Reports

<p>Account—Pleading—Bill of Particulars—Purpose of Code Provision.—The purpose of the provisions of section 454 of the Code of Civil Procedure, that "it is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand therefor in writing, a copy of the account, or be precluded from giving evidence thereof," is to give the adverse party reasonable notice of the items constituting the claim he is required to meet, so that he may prepare for trial.</p> <p>Id.—Nature of Bill of Particulars—Amplification of Pleading— Further Order—Amendment.—The bill of particulars required is in the nature of an amplification of the pleading to which it relates, and it is to be construed as part of it for certain purposes; and when the court or judge orders "a further account wnen the one delivered is too general, or is defective in any particular,” as the section provides, the further or amended account is to be construed as an amended pleading for certain purposes.</p> <p>Id.—Waiver of Objection to Amended Bill—^-Motion at Trial—Objection to Evidence.—Where, after the furnishing of an amended bill of particulars by order of court, the defendant made no objection to its items for over five months, and until the very moment of trial, objection thereto was waived, and a motion then made for a further bill of particulars came too late, and was properly denied. The defendant cannot object at the trial to any evidence coming within the general scope of the complaint and the amended bill of particulars.</p> <p>Id.—Effect of Amended Bill—Prior Bills Superseded—New Items —Waiver of Objection.—The amended and last bill of particulars ordered by the court superseded former bills, and it may include items of the general account for services not before specifically mentioned in previous bills, and where evidence relating thereto was given without objection, and no motion was made to strike it out as a whole, the evidence as to such items must stand.</p>

<p>Action fob Indebtedness—Pleading—Legal Conclusion Implying Fact—Judgment by Default.—A complaint averring that defendants "within two years last past became indebted to the plaintiff” in a specified sum, followed by other proper averments, though it states a legal conclusion as to the indebtedness, merely implying the material fact, is sufficient, in the absence of a demurrer, to support a judgment by default.</p>

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

<p>Negligence—Contributory Negligence—Instruction—Applicability to Evidence.-—In an action to recover for injuries alleged to have been sustained by defendants’ train while plaintiff was crossing the track, where the evidence clearly shows that if plaintiff and defendant were both negligent, their negligence was contemporaneous and concurrent, and extending up to the very time of the accident, an instruction to the effect that if the jury believe that plaintiff did not exercise reasonable and ordinary care to prevent the injury he cannot recover, notwithstanding defendant’s negligence, unless it was gross, willful and intentional, is not objectionable, for not using the words ‘ proximate .contributory negligence, ’ ’ nor for not stating the rule of “the last clear opportunity.”</p> <p>Id.—“Proximate Contributory Negligence’’—Definition.—“Proximate contributory negligence” is that negligence of plaintiff which in a natural and continuous sequence, unbroken by any independent cause, contributes to the injuries, and without which the injuries would not have occurred.</p> <p>Id.—Contributory Negligence of Traveler Crossing Track—Failure to Look and Listen.—It is the duty of a traveler when attempting to cross a railroad track to look and listen for an approaching train, and it is contributory negligence for him to expose himself to danger without making any effort to ascertain whether a train was approaching by which he was injured.</p> <p>Id.—Instructions to be Bead Together—Proximate Contribution.— Instructions are to be read together; and where an instruction was embodied in the charge as to the negligence of plaintiff, cautioning the jury that they must find whether “plaintiff was guilty of negligence which proximately contributed to his injuries,” the omission of “proximate contributory negligence” in the particular instruction objected to was not prejudicial.</p> <p>Id.—Inapplicable Instruction—“Last Clear Opportunity”—Actual Knowledge of Peril Essential.—An instruction as to the “last clear opportunity” was wholly inapplicable where there was nothing in the evidence to support it. It is essential to the applicability of the doctrine of later negligence of the engineer that he must have been actually aware of plaintiff’s danger in time to have obviated it; and where the evidence shows that after his discovery of plaintiff’s peril and inattention to danger the engineer did all he could to prevent the accident, no later negligence on his part existed.</p> <p>Id.—Instruction as to Willful Injury not Prejudicial.—Though defendant would have no right in any event to injure the plaintiff wantonly, willfully and with an intentional purpose to hurt him, and though an instruction on that subject might have been eliminated, owing to the fact that there was no issue or evidence as to wanton and intentional injury, its presence could not prejudice the appellant.</p>

George E. Church, Judge. The facts are stated in the opinion of the court. Pillshury, Madison & Sutro, and Johnston & Jones, for Appellant. The complaint was uncertain, and the court erred in overruling the demurrer. (Mallory v. Thomas, 98 Cal. 644, 33 Pac. 757; Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623.) The custom as to the delivery of the grapes was a proper defense, and the defendant should have been allowed to prove it.

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

<p>Criminal Law—Passing Fictitious Bill of Nonexistent Bank— Sufficiency op Information.-—An information which charges the defendant with passing a fictitious bill of a bank not in existence with intent to cheat and defraud the complaining witness, and with knowledge of the false and fictitious character of the bill and of the nonexistence of the bank named in the bill at the time he passed the bill, sufficiently sets forth every essential element of the offense for which punishment is provided in section 476 of the Penal Code.</p> <p>In. —Sufficiency of Evidence—Immaterial Facts—Original Genuineness—Incompleteness.—Evidence showing that the bill as passed by defendant was double, and that the two bills as pasted together were in effect a simulation of a current bank note, and were evidently prepared' with the purpose of concealing their real character, and as passed were not “genuine,” but were “false” bills of a nonexistent bank, and were intended to defraud arid deceive the complaining witness, and had that effect, is sufficient to warrant the jury in convicting the defendant. In view of such evidence, it is not material whether the bills may have been originally genuine when they left the bank, nor whether they were originally incomplete and illegally issued.</p> <p>Id.—Evidence—Similar Crimes—Knowledge of Character of Bill— Fraudulent Intention—Systematic Scheme.—Evidence of similar crimes to show knowledge of the character of the bill alleged to have been fraudulently uttered must be confined to prior passage of other fraudulent hills; hut on the question of fraudulent intention, and to show a systematic scheme to defraud, similar offenses subsequent to the utterance of the bill in question may be proved.</p> <p>Id.—Bemoteness of Evidence—-Doctrine of Probabilities—Question for Court.—Conceding that the evidence of similar offenses is based upon the doctrine of chances or probabilities, their remoteness in time and similarity of the instrument become matters affecting the weight rather than the admissibility of the evidence. If the evidence has any application under the rule, whether or not it has sufficient weight to entitle it to be submitted to the jury is a question for the determination of the trial court.</p> <p>Id.—Question of Alibi—Proof of Subsequent Offense—Identity.— If the evidence of another offense tends to establish an intent to defraud, and is admissible for that purpose, it will not he rejected merely because it may also tend to prove the identity of the per-son who committed the crime being tried; this rule is not affected by the fact that the defense is an alibi.</p> <p>Id.—Construction of Penal Code—Amendment.—The amendment of section 470 of the Penal Code in 1895 did not affect section 476 thereof, under which the defendant was prosecuted.</p>

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

<p>Checks—Payment—Conditional Payment.—A check drawn tona fide on a bank having funds of the drawer is primo facie payment, if accepted as cash; but, in the absence of an agreement, the acceptance of it is merely conditional payment or satisfaction of the debt if and when paid.</p> <p>Id.—Presentment—Implied Undertaking op Diligence—Loss by Want op Diligence—Actual Payment.—The acceptance of such a check from the drawer implies an undertaking of due diligence in presenting it for payment; and if the drawer sustains loss by want of such diligence the check will be held to operate as actual payment.</p> <p>Id.—Time for Presentment.—At common law the payee of a check, when drawn on a bank in the same place where it is given and received, has until the following day after its receipt to present it for payment as between himself and the drawer. When drawn on a bank in a different place, the payee has the same time and such additional time as will be required to transmit it to the place of payment by due course of mail.</p> <p>Id.—Agency for Presentment—Effect of Mailing Check to Drawee Bank.—For the purpose of presenting and collecting the cheek the collecting bank must employ a suitable subagent. The mailing of a cheek to the drawee bank is not a proper presentment or demand for payment, in the absence of proof of usage or custom among banks to do so. The drawee cannot be deemed a suitable agent in contemplation of law to enforce in behalf of another a claim against itself, and such bank may hold it for any time without incurring the obligation of an acceptance.</p> <p>Id.—Construction of Civil Code—Limit of Time—Reasonable Diligence in Proper Presentment.—Section 3213 of the Civil Code, which merely fixes a limit of ten days after which delay in presentment of a cheek will exonerate the drawer and indorsers thereof, unless the delay be for one of the reasons expressly provided by statute, still requires reasonable diligence in making the presentment, which must be made by a proper agent prepared to treat with the drawee bank at arm’s-length.</p> <p>Id.—Loss Occurring After Delay of Ten Days.—Where it appears that the loss occurred after a delay of ten days from the receipt of the cheek by plaintiff without lawful presentment thereof, the loss must fall upon the plaintiff, whatever view of the law may be taken.</p>

<p>Criminal Law—Rape—Cross-examination of Prosecutrix—Complaint Under Threat of Imprisonment.—Upon a prosecution for rape by sexual intercourse with a girl under sixteen years of age, it was prejudicial error to refuse to allow the defendant to show upon cross-examination of the prosecutrix, as affecting her credibility, that at the time of making the complaint she was under arrest for vagrancy, and had been threatened with imprisonment if she did not swear to the complaint, and that acting under fear thereof she was induced to swear thereto.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a motion for new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Strother & Strother, and Harris & Perkins, for Appellant.</p>

<p>Negligence—Contributory Negligence—Questions of Fact and Law. Where the facts are such that reasonable men may fairly differ as to whether there was negligence or contributory negligence or not, in a case of personal injury, the determination of the matter is a question of fact for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is one of law for the court.</p> <p>Ib.—Mixed Question of Law and Fact.—Usually the consideration of negligence, including contributory negligence, involves a mixed question of law and fact, in which it devolves upon the court to say, as matter of law, what is or amounts to negligence, and upon the jury to say, as matter of fact, whether or not in the particular case the facts proved show negligence.</p> <p>Id.—Motion for Nonsuit—Question of Contributory Negligence— Facts Taken as Proved—Inferences Against Defendant.—Upon a motion for a nonsuit on the ground that contributory negligence is shown by the plaintiff’s evidence, every fact that plaintiff's evidence proves or tends to prove must be taken by the court as proved, and must be taken in the strongest light against the defendant, and interpreted most strongly against him.</p> <p>Id.—Motion Properly Denied—Question for Jury.—Held, that plain-. tiff's evidence, admitting that his testimony was somewhat inconsistent and partly absurd, does not show as matter of law that he was guilty of contributory negligence, and that it was proper to deny the motion, and to submit the question of contributory negligence to the jury.</p> <p>Id.—Costs—Legal Percentage in San Francisco'—Statute not Repealed.—The act of February 9, 18.66 (Stats. 1865-66), regulating the recovery of a percentage in litigated cases in the city and county of San Francisco to be included in the judgment against the- adverse party, was not repealed by the fee law of 1895, and the percentage allowed by that act is still recoverable;</p>

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

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

<p>Estates of Deceased Persons—Claims—Sufficiency of Affidavit on Behalf of Claimant.—An affidavit to a claim against the estate of a deceased person, made by some other person, acting on behalf of the claimant, must state the reason why it is not made by the claimant; and if it fails to do so, it is insufficient.</p> <p>Id.—Affidavit by Official on Behalf of Corporation.—An affidavit to a claim on behalf of a corporation must state that it is a corporation, and the averment of that fact shows a sufficient reason why it is not made by the corporation. Where that fact is not stated, the claimant cannot be assumed to be a corporation; but if it is stated, the affidavit by an official should show that the person acting in its behalf is an officer of the corporation presumed from his official position to have sufficient knowledge of its affairs.</p> <p>Id.—Affidavit for Corporation by Other" Person.—An affidavit on behalf of a corporation by other than such official must contain averments tending to show, when he swears that there are no offsets to his knowledge, that the nature of his relation to the company is of a character calculated to place him in possession of requisite information on that subject.</p> <p>Id.—Affidavit by or on Behalf of Individual.—When the affidavit is made by an individual who bases his claim upon transactions with the deceased, the law imputes to him knowledge of the truth of the averments made therein. When made by another on his behalf, the affidavit must, in addition to averring that he has no knowledge of any offsets, aver facts showing that hq was in a position to know of them if any existed.</p>

<p>Injunction—Dissolution op Temporary Order—Abortive Appeal— Appeal prom: Judgment upon Demurrer.-—A notice of appeal from an order denying plaintiff's motion for a temporary injunction, where the record shows that the temporary injunction was granted, is abortive as an appeal from an order dissolving the same; but where a general demurrer to the complaint was sustained, and final judgment was rendered thereon, from which an appeal is taken, it is immaterial whether or not an appeal was intended to be taken from the order dissolving the temporary injunction, because, if the facts stated are insufficient under the general demurrer to warrant final relief, they are insufficient to warrant the continuance of the temporary restraining order.</p> <p>Id.—Insufficient Complaint for Injunction—General Conclusions.—A complaint for an injunction which does not state facts sufficient to determine how plaintiff's property will be permanently injured by the acts complained of, and which states merely general conclusions as to multiplicity of suits and irreparable injury, not warranted by any pleaded facts, does not state facts sufficient to constitute a cause of action for equitable relief to enjoin the acts complained of.</p> <p>Id.—Suspension op Ladders and Falls with Hopes Attached prom Adjoining Building—-Basement.—When the acts complained of consist in the suspension of ladders and falls with ropes attached from an adjoining building, over and above plaintiff's roof, and the complaint fails to state the purpose thereof or to show how the continuation thereof would injure plaintiff's property, the mere averments that the continued trespass "will ripen into a right and easement on plaintiff’s property” and will "constitute and create an obstruction to the free and peaceable use of the aforesaid property” are only the conclusions of the pleader.</p> <p>Id.—Reason Assigned bt Court Below-—-Damnum Absque Injuria.— Where it cannot 6e determined from the complaint whether or not the alleged acts are excusable under the rule of damnum absque injuria, applied by the court below, and the facts pleaded do not amount to a conjecture as to the purpose of the acts, we are not concerned with that particular reason assigned by the court for its ruling. It is sufficient that the ruling sustaining the demurrer was correct.</p>

<p>Prohibition—Remedy by Appeal—Jurisdiction to Try Action in Justice’s Court.—A writ of prohibition will not lie to prevent the trial of an action where there is a plain, speedy and adequate remedy by appeal from the final judgment rendered therein. Whether a justice’s court has or has not jurisdiction to try an action, where it appears that the summons was not served or returned within three years from the commencement of the action, the method of appealing from the judgment of the justice's court is simple and expeditious, and an appeal may be taken upon questions both of law and of fact; and prohibition will not lie in the superior court to prevent the trial of the action.</p> <p>Id.—Appeal—Stipulation of Parties—Moot Question.—Upon appeal to this court from a judgment of the superior court denying a writ of prohibition to the justice’s court, the parties cannot by stipulation limit the inquiry in this court to the moot question, not arising upon the record, whether section 581 of the Code of Civil Procedure applies to justices ’ courts.</p>

<p>Receiver—Ex Parte Appointment—Basis for Determining Validity —Subsequent Proceedings Immaterial.—The validity of an ex parte order appointing a receiver must be determined by the proceedings upon which it was based; and, aside from any imperfection in the bond, any proceedings taken subsequently to the making of the order when a motion to vacate the order was noticed and heard, including an amended complaint then allowed to be filed, are wholly immaterial.</p> <p>Id.—Insufficient Complaint—Object of Action—Appointment of Receiver of Insolvent Corporation—-Want of Notice.—Where the original complaint on which the order was based did not state a cause of action, and had for its object merely to appoint a receiver of a corporation, alleged on information and belief to be insolvent, and a receiver was appointed upon the verified complaint to take possession of all of the assets of the corporation without notice, the order has no validity and must be reversed.</p> <p>Id.—Appointment must be Ancillary to Pending Cause of Action.— There is no such thing as an action brought merely for the appointment of a receiver. Such an appointment, when made, must be ancillary to a pending and independent cause of action, and its purpose is to preserve the property pending the litigation, so that the relief awarded by the judgment, if any, may be effective.</p> <p>Id.—Jurisdiction of Equity—Insolvent Corporation.—A court of equity has no inherent power to appoint a receiver of an insolvent corporation merely because of its insolvency, or to wind up its affairs, in the absence of a statute; and no statute authorizes a private person, either as stockholder or creditor, to maintain an action to dissolve a corporation upon the ground that it is insolvent, or to place its property in the hands of a receiver.</p> <p>Id.—Notice Requisite as a Rule—Irreparable Injury—Temporary Injunction.—As a general rule, the appointment of a receiver to take property out of one’s possession without a trial will not be indulged in by a court without previous notice to the defendant. It would be unjustifiable, except where it clearly appeared that irreparable injury would be done during the few days necessary for a hearing on notice; and even in such extreme ease a temporary injunction would usually be sufficient.</p>

HEARING on writ of habeas corpus to test the validity of cumulative commitments from the justice’s' court for Montezuma Township, in Solano County. A. W. McDonald, Justice of the Peace. The facts are stated in the opinion of the court.

<p>CORPORATIONS'—DISPOSITION OP PROPERTY—AUTHORITY OP DIRECTORS— Power op President.—A corporation can only act in relation to the control and disposition of its property through its board ef directors, or some one authorized by the board. Its president has no power, merely by virtue of his office, to buy or sell the property of the corporation or to make an executory contract to sell its property binding upon it.</p> <p>I'D.—Unauthorized Executory Contract op Sale—Corporation not Estopped.—The corporation is.not estopped to deny the validity of an unauthorized executory contract of its president to sell its property, to which the corporate seal is not attached, and from which it has derived no benefit and which was not authorized by any course of business between the parties nor ratified by the board of directors.</p> <p>16.-—Evidence—By-laws op Corporation.—Where a corporation is sought to be charged for breach of an agreement executed by its president which has not been performed, and there is no question ef estoppel or ratification, the by-laws of the corporation are admissible in evidence to show that the president was only authorized to execute instruments in writing which have been first approved by the board of directors.</p> <p>Id.—Broker's Commission not Allowable—Procuring op Purchasers Who do not Contract.—A broker's commission upon the unauthorized contract of sale made by the president of the corporation is not chargeable against the corporation nor is it allowable under the terms of the contract made by the president by reason of the mere finding of purchasers ready, able and willing to purchase, where there was no agreement to purchase and no sale was negotiated.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Charles G. Lamberson, and J. L. C. Irwin, for Appellant.</p>

<p>Criminal Law—Obtaining Money Under False Pretenses—Sufficiency of Information.—An information for obtaining money under false pretenses from a person alleged to be its owner, with intent to cheat and defraud him, and with original intent to cheat and defraud another person named, is not defective, because it does not appear that he accomplished his purpose as to such other person, nor because it does not allege the purpose for which the owner paid the money to the defendant. It is sufficient that the information contains every allegation necessary to charge the defendant with the commission of the offense against the owner of the money.</p> <p>Id.—False Pretense of Ownership of Restaurant.—Where, to obtain the money, the defendant falsely represented that he owned a restaurant, and the personal property therein, which he did not own, it is immaterial what other person owned it.</p> <p>ID.—Purpose and Mode of Defrauding Owner—Question for Proof.— The question as to how the false pretense was calculated to defraud the owner of the money, whether by a loan of money or by a purported sale, was a matter to be shown by the evidence.</p> <p>Id.—Possession of Restaurant by Defendant—Value Immaterial.— When the defendant was in charge of the restaurant when the false pretense was made, the court properly excluded evidence of its value as being immaterial, the only important question of value being that of the money obtained by the false pretense of ownership.</p> <p>ID.—Conflict of Evidence—Support of Verdict.—Where the evidence is conflicting as to whether the defendant was the owner of the restaurant,. and as to whether he was authorized by the owner to sell it, the appellate court will not disturb the verdict of the jury against the defendant or the ruling of the court in denying Ms motion for a new trial.</p> <p>Id.—Form of Verdict—Surplusage—Use of Synonymous Terms— Form not Prejudicial.—A general verdict finding “the defendant guilty as charged” is sufficient, and the words appended thereto, “and that the property obtained was of the amount of $200,” might be eliminated as surplusage; yet, where the offense charged was the obtaining of $200 lawful money of the United States, the word “amount,” used with reference thereto, is synonymous with “value”; and the form of the verdict shows no substantial error prejudicial to the rights of the defendants.</p>

<p>Negligence—Punitive Damages.—Simple negligence, unaccompanied with oppression, fraud or malice, cannot justify an award of punitive damages for the resulting injury.</p> <p>Id.—Negligent Construction or Bulkhead—Breakage in Wet Weather—Slight Injury—-Excessive Damages—New Trial.— In an action for damages arising from the negligent construction of a bulkhead by defendant on his premises, which, after standing for two years, gave way in wet weather and damaged slightly the rear end of plaintiff’s premises, where there is no evidence that the injury was willfully or wantonly done, or of gross negligence in the construction or use of the bulkhead, or of any oppression, fraud or malice, a verdict for punitive damages is excessive, and a new trial should be granted therefor.</p> <p>Id.—Neglect to Repair Damages After Bequest—Oppression not Shown.—-The mere neglect of the defendant, after request, to repair the damage, which was unintentionally, though negligently, done, cannot be said to show oppression by subjection of the plaintiff to cruel and unjust hardships. The plaintiff had an immediate legal remedy for his damages,' which only interfered with the use of a small part of his lot, to a trifling extent. ,</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, entered on the report of a referee in proceedings supplementary to execution. John M. Eshelman, Referee. James M. Trout, Judge Appointing Referee.</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, annulling a judgment of the justice’s court of said city and county. John R. Daniels, Justice of said court. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

WRIT of habeas corpus to the Sheriff of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>Municipal Ordinance—Police Power—Bestriction of Liquor Traffic.—The law-maMng power of a municipal corporation has the right, under the police power, to restrict the sale of intoxicating liquors; and a municipal ordinance prohibiting the sale of all intoxicating liquors therein, excepting a specified permission to hotel-keepers to sell vinous and malt liquors served in the dining-room .thereof as part of a regular meal, is a valid exercise of the police power of the municipality.</p> <p>ID.—CONSTITUTIONAL LAW—UNIFORMITY IN OPERATION.—The constitutional requirement with reference to the uniformity in operation of all laws of a general nature has no application to ordinances enacted in pursuance of the police power to regulate the liquor traffic, in which there is an unjust discrimination,</p> <p>in.—No Inherent Bight to Engage in Liquor Traffic—Operation of Exception.—There is no inherent right in a citizen to engage in the sale of intoxicating liquors; and where an exception to the ordinance prohibiting such right is based upon a reasonable distinction, and applies alike to all hotel-keepers of the class excepted, one not belonging to that class, who is imprisoned for a violation of the ordinance, has no just cause of complaint, by reason of the exception.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, admitting a will to probate, and from an order appointing a corporation executor without bond. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco appointing a receiver. Thomas F. Graham, Judge. The facts are stated in the opinion of the court.

<p>Estates op.,Deceased Persons—Invalid Trust Under Will—Suspension op Power op Alienation—Title op Heirs.—A trust under the will of a deceased person providing for an absolute continuance thereof for the period of twenty-five years may by possibility suspend the power of alienation beyond lives in being, and is invalid and void under sections 715 and 716 of the Civil Code; and the title became vested in the heirs of the deceased testator.</p> <p>Id.—Distribution—Conveyance by Widow to Son.—Where the deceased left surviving him his wife and two sons, and the widow, during administration, conveyed all of her interest in the estate to one of the sons, her interest in the estate vested in him, regardless of whether the property was community property or separate property, and the estate was properly distributed to the two sons, according to their respective interests in the estate.</p>

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

<p>Order Granting New Trial—Review upon Appeal—Insufficient Record—Presumption.—Upon appeal from an order granting a new trial, the appellant must present a record which affirmatively shows error in the granting of the motion. In the absence of a bill of exceptions showing the grounds of the motion and what was used upon the motion, where the record does not establish the contrary, it will be conclusively presumed in favor of the order that it was in part based upon some ground upon which affidavits could be used, and that such were used, and were sufficient to justify the order.</p> <p>Id.—Statement on Motion for New Trial.—A statement on motion for a new trial which may be sufficient on appeal from an order denying the motion may be wholly insufficient to show error in the granting of the motion. It is the duty of the party who would show such error to see that the record establishes it.</p>

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

<p>Criminal Law—Robbery—Evidence—Declaration op Conspirators— Circumstantial Evidence op Conspiracy.—Upon a trial for robbery, where the prosecution sought to prove a conspiracy to commit the crime, so as to justify evidence of the declaration of a eo-conspirator that the prosecuting witness had "lots of money," the conspiracy need not be established by direct evidence of the common design, but may be shown by circumstantial evidence sufficient to establish a prima facie case of an agreement to commit the crime.</p> <p>Id.—Order of Proof of Declaration and Conspiracy—Discretion of Court—Code Provision not Mandatory.—The order in which the proof of the declaration of the eo-eonspirator and of the existence of the conspiracy may be admitted rests largely in the discretion of the trial court, which may permit the declaration to be first proved, under a proposal of the prosecution to supply proof of the conspiracy to rob. The provision of subdivision 6 of section 1870 of the Code of Civil Procedure allowing proof of the act or declaration of a conspirator, after proof of the conspiracy, is not mandatory.</p> <p>Id.—Evidence Tending to Show Conspiracy—Question for Jury— Instruction—Conclusiveness of Verdict.—Where all the evidence bearing upon the question of the alleged conspiracy tends to prove it, its existence is a question of fact for the determination of the jury; and where, under proper instructions as to the effect of reasonable doubt on that question, the jury found that the agreement of the conspirators to rob was made, its verdict is conclusive ■ of that fact.</p> <p>Id.—Dual Function of Evidence of Conspiracy—G-unzr of Defendant.—The evidence of the independent facts and circumstances which show the conspiracy to rob may at the same time supply evidence tending to prove the guilt of the defendant on trial; but the fact that it performs such dual function is no reason for excluding it.</p> <p>Id.—Existence of Money Bobbed—Knowledge by One Conspirator Imputable to All.—The existence of the conspiracy to rob the prosecuting witness being proved, the knowledge of one of the conspirators, however acquired, that he had a large sum of money, if acquired at any time before the consummation of the crime, was imputable to all of the conspirators, including the defendant on trial.</p> <p>Id.—Impeaching Evidence—Foundation not Laid.—Witnesses for the prosecution cannot he impeached by their evidence given on a former trial where no foundation was laid for such impeachment as required in section 2052 of the Code of Civil Procedure.</p> <p>Id.—Admission by Defendant not Amounting to Confession—Preliminary Proof not Bequired.—An admission made by the defendant in conversation with the sheriff while in custody, not involving a confession of the crime, which was negatived by him, but tending in connection with other facts proved to show his guilt, was admissible in evidence against him, without any preliminary proof that the admission was voluntarily made.</p> <p>Id.-—-Error not Affecting Substantial Bights.—Any error in the admission of evidence or in any ruling of the court, not appearing to affect the substantial rights of the defendant, must be disregarded.</p> <p>Id.—Delay in Passing Sentence—Postponement—Jurisdiction not Lost.-—The delay in passing sentence upon the defendant at the time fixed therefor, and the postponement thereof for thirty-five days, shows no loss of the jurisdiction of the court to pronounce sentence.</p> <p>Id.—Judgment of Sentence No Part of Trial.—Pronouncing judgment, which is the formal declaration of sentence, is not the trial, nor any part thereof, within the meaning of section 13, article I of the constitution.</p> <p>Id.—End of Trial—Verdict.—The trial ended with the announcement of the verdict of the jury upon the issue of fact submitted to it for its decision.</p>

<p>Preliminary Injunction—Limit of Continuance—Construction of Amendment to Code.—The amendment of 1895 to section 527 of the Code of Civil Procedure, fixing the limit of twelve months beyond which a preliminary injunction will cease to operate if certain conditions do not exist, applies equally, whether the injunction is granted after notice or ex parte, and involves no question of remedy by appeal, or of res adjudieata. At the expiration of the twelve months, if the conditions stated do not apply, the injunction becomes inoperative and the parties beneficially interested are entitled to have the court so declare.</p> <p>Id.—Proper Exercise of Jurisdiction.—It is a proper exercise of the court’s jurisdiction to ascertain and find the facts as to the conditions; and declare by its order that the injunction is no longer in force, if the facts warrant such deduction. The only thing before the court is the ascertainment of the facts upon which the right depends.</p>

<p>Negligence—Master and Servant—Independent Contractor—Question op Fact por Jury.—In an action by a servant for damages caused by the negligence of defendant as his employer in failing to furnish safe appliances, where there is a dispute whether plaintiff was the servant of the defendant or of independent contractors, and it appears that plaintiff was paid by defendant, and the evidence is such that the existence of the relation of independent contractors is in doubt, its existence is a question of fact for the jury, and a verdict for the plaintiff will not be disturbed upon appeal.</p> <p>Id.—Instruction Submitting Question op Fact—Detail op Evidence.—Where the court, in submitting to the jury the question of fact whether the persons claimed to be independent contractors were such or mere servants of the defendant, properly instructed them as to the law of the case, though it may have been unnecessary to detail the evidence, the action of the court in calling attention particularly to the evidence which must be the basis of the jury’s finding cannot be successfully assailed.</p> <p>Id.—Unsafe Appliance—Evidence of Negligence—Support of Verdict.—Where the evidence shows that the machine on which plaintiff was injured was originally unsafe, and that an appliance was put thereon to make it less dangerous, in respect to which the master was negligent in failing in his duty to keep it secure, or to inspect the machine and appliance, and in failing to warn plaintiff, who, in ignorance of the manner in which it was fastened, was requested by an inexperienced workman to adjust the loosened appliance, to his injury, the evidence of negligence is sufficient to support the verdict for damages.</p>

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

The facts are stated in the opinion of the court, and in the opinion rendered upon a former appeal in 129 Cal. 293. Edward Sweeney, and Rohinson & Robinson, for Corporation, Appellant. Campbell, Metson & Campbell, and S. D. Woods, for Intervener, Appellant.

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

<p>APPEAL from a judgment of the Superior Court of Santa Cruz County, and from an order denying a new trial. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>W. T. Jeter, C. M. Cassin, and L. T. Hatfield, for Appellant.</p>

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

<p>Divorce—Interlocutory Judgment—Disposition op Homestead on Separate Property—Jurisdiction.—Where the complaint by the husband for divorce alleged the selection of a homestead on the separate property of the husband therein described, the court had jurisdiction, and it was its duty, under section 131 of Civil Code, at the time of the hearing and granting of the interlocutory judgment that plaintiff is entitled to a divorce, to hear and determine the issue tendered as to the title to the homestead property, and to include in the interlocutory judgment an assignment of the homestead to the husband, as its former owner, in pursuance of sections 146 and 147 of the Civil Code.</p> <p>Id.—Right to Final Judgment—Death op Plaintipp Pending Motions.—WTiere, after the lapse of the year without appeal, the plaintiff properly moved for a final judgment, the death of the plaintiff pending the disposition of the motion and of counter-motions of the defendant relating to the question of property rights did not impair the power of the court to render final judgment for the plaintiff, under the express provisions of section 132 of the Civil Code and of section 669 of the Code of Civil Procedure.</p>

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

<p>Judgments—Vacation—Mistake of Law by Attorney—Relief in Equity—Insufficient Complaint.—Though a complaint in equity to vacate a judgment may disclose a sufficient ground for relief by motion under section 473 of the Code of Civil Procedure, addressed to the discretion of the court, for a mistake of law on the part of the defendant’s attorney, had such motion been made in time, yet, the time having elapsed for such motion, the mere averment of such mistake of law in the complaint, not occasioned by any act of the defendant causing the plaintiff to default in an action brought by the defendant to quiet title to a water right against the plaintiff, states no cause of action for relief in equity against the judgment in such action.</p> <p>Id.—Mistake in Accepting Opinion of Attorney—Riparian Rights— Claim of Water Right by City.—Where the complaint shows no mistake of fact on plaintiff’s part, and the only mistake, if any, was in accepting the opinion of plaintiff’s own attorney, as matter of law, that the claim of a water right on the part of the city was superior to that of the plaintiff as a riparian owner on the stream, which alone led it to make default in an action to quiet the city’s title to the water against the adverse claim of the plaintiff, the rule is applicable that “neither the ignorance, the blunders, nor the misapprehension of counsel, not occasioned by the adverse party, is any ground for vacating the judgment or decree.' ’</p> <p>Id.—False Claim of City—Issue Tendered by Complaint—Conclusiveness of Judgment—Conceding that the city’s claim to the entire water of the stream was false and fraudulent as against the plaintiff, as a riparian owner, and might have been successfully defended, yet as an issue was tendered upon the claim, and the plaintiff, as defendant, was called upon to set forth any adverse claim on its part, the claim of the city was in no sense collateral to the merits of the action; and the judgment declaring the adverse claim is conclusive, where there was no concealment or imposition upon the court, and no extrinsic or collateral fraud is shown on the part of the city to prevent a fair submission of the controversy.</p> <p>Id.—Judgment Upon Evidence—Presumption—Inconsistent Averment of Void Judgment.—Where the judgment set forth in the complaint shows that it was not merely rendered by default, but that it was ordered in accordance with the prayer of the complaint, the presumption is that it was rendered upon competent evidence, and the plaintiff cannot be heard in this proceeding in equity to question the sufficiency of the evidence presumably before the court, which was by it determined to warrant the judgment, and an inconsistent averment that it was, an unauthorized and void judgment by default is controlled by the judgment set forth.</p>

<p>Irrigation District—Proposed Bid for Work—Certified Check— Forfeiture—-Injunction—Findings Against Evidence—Invalid Proceeding—Support of Judgment.—In an action to restrain the managers of defendant bank from paying a certified check, indorsed ‘ ‘ not to be paid unless forfeited,'' which was delivered to the irrigation district defendant, with a sealed bid for proposed work on its canal system, the check to be returned if the bid was not accepted, and forfeited if the bid was accepted, and not complied with by plaintiff, where issue was joined as to the acceptance of the bid and noneompliance therewith by the plaintiff, and the court found against evidence as matter of fact that the averments of the complaint were true, and the denials and averments of the answer were untrue, a judgment for the plaintiffs can only be supported upon the theory that the court found, as matter of law, that the whole proceeding was invalid, and that the attempted, acceptance and award were nugatory.</p> <p>Id.—Failure of Officers of District to Comply with Essential Proceedings—Void Contract—Bidder not Estopped.—Where the ofiicers of the irrigation district, which is a public municipal corporation, have dispensed or failed to comply with any of the essential proceedings prescribed by statute for investing them with power to contract, no liability is imposed upon the corporation by the contract, and the bidder, whose offer is a mere naked one, without consideration, is not estopped, by reason of his failure to comply therewith, from claiming the return of the cheek deposited with his bid, or from enjoining the payment thereof.</p> <p>Id.—Advertisement of Less Than Whole Work—Omissions in Description—Insufficient Notice.—Where the advertisement under section 53 of the Wright Act was for less than the whole work, it is essential that the notice must describe the particular work to be done, as required in that section, so as to correspond with the plans and specifications thereof, which must relate to the same work, so as not to mislead bidders to their disadvantage, and the failure properly to describe the work rendered the notice insufficient.</p> <p>Id.—Uncertainties Affecting Competition in Bidding.—Any uncertainties affecting competition in bidding, either as to the substantial terms of the proposed contract, or a substantial variance as to such terms between the notice to bidders and the plans and specifications, or in the plans and specifications, or as to the reserved power of the engineer to change the plans and require extra work without providing for compensation, rendered the whole proceedings invalid.</p>

<p>Criminal Law—Charge of Murder—Issue as to Death from Abortion—Error in Instruction—Conviction of Manslaughter— New Trial.—Where a defendant charged with murder was tried for the crime of death caused by abortion, and convicted of manslaughter, under an improper instruction on that question, for which error the cause was remanded for a new trial by the supreme court, the conviction for manslaughter, though held erroneous, was an acquittal of the charge of murder, and the new trial must be limited to the charge of manslaughter.</p> <p>Id.-—Prohibition Against Second Trial for Murder—Limitation of Penalty.-—The writ of prohibition will lie to prevent a second trial upon the charge of murder caused by abortion, notwithstanding a proposed limitation of the penalty to manslaughter.</p> <p>Id.—Limitation of Evidence.-—The charge of manslaughter is not included in the charge of death procured by abortion, and cannot be proved by evidence of that offense. It can only be proved by evidence of facts included in the legal definition of manslaughter.</p>

<p>Injunction—Preliminary Order—Purpose—Merits not Involved.— A preliminary injunction is granted before a hearing on the merits has been had, and its purpose and sole object is to preserve the subject in controversy in its then existing condition, and, without determining any question of right, merely to prevent a further perpetration of wrong or the doing of any act whereby the right in controversy may be materially injured or endangered until a full and deliberate investigation of the case is afforded to the party. Cases are not tried on their merits on pleadings and affidavits.</p> <p>Id.—Controverted Eight as to Pipe-line—Destruction op Eight— Discretion.—Where the defendant admits the existence of a pipeline used by plaintiff as a trustee for other owners of lands irrigated thereby, to be used by plaintiff on his own lands and those of other beneficiaries in trust for irrigation and domestic use, and the plaintiff asserts a user adverse to defendant for "more than six years, and defendant claims that it existed under her license, which has been revoked, for the court to have allowed the destruction of the rights claimed by plaintiff preliminary to a hearing on the merits by regular trial in court would have been an abuse of discretion.</p> <p>Id.—Appeal—Eestraining Order—Merger in Preliminary Injunction.—It seems that an appeal will not lie from an order denying a motion to dissolve a restraining order, or from an order denying a motion to discharge the same. Dpon the hearing of the order to show cause why a preliminary injunction should not be granted, the restraining order falls with a denial of the injunction, and is merged in it if granted.</p>

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

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

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

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

<p>Specific Performance—Contract to Convey Real Estate to Corporation—Sufficiency of Complaint.—In an action by an oil company to enforce specific performance of a contract by defendant to convey three lots of land thereto, where the complaint shows that, in consideration of a purchase of land from the defendant, including the three lots afterward acquired by him for the purpose of erecting the refinery thereon, it had issued its capital stock, which defendant accepted and retained, and that it has erected valuable improvements on the three lots, which defendant had refused to convey, and alleged that the contract to convey the three lots was reasonable and just as to the defendant, it states a cause of action, and a demurrer thereto was properly overruled.</p> <p>Id.—Rule as to Pleading Value of Land Inapplicable.—The well-recognized rule that in actions for specific performance the complaint must state the value of the land, or other facts showing that the consideration is adequate, is not applicable to the facts existing in this case.</p> <p>Id.—Estoppel of Defendant to Question Adequacy.—After accepting and retaining the agreed consideration for the whole purchase, the defendant cannot question the adequacy thereof.</p> <p>Id.—Parol Contract—Part Performance—Improvements.—Though the contract to convey the land was by parol, a specific performance of it may be enforced, when the payment therefor has been accompanied not only by a change of possession, but by a large expenditure of money upon the lots by way of improvements thereon, consisting of a number of tanks constituting a part of the plant of its oil refinery.</p> <p>Id.—Pleading and Proof as to Improvements.—Where the contract did not in terms call for an improvement, it was not necessary to allege or prove that the improvements upon the property were made pursuant to the agreement.</p> <p>Id.—Documentary Evidence—Error not Disclosed.—Where no error in the admission or exclusion of documentary evidence is shown, for the reason that no copy thereof is included in the record upon appeal, it must be concluded that the ruling of the court thereon was correct.</p> <p>Id.—Original Book Entry Showing Contract.—The original book entry showing the contract between the corporation and the defendant for the purchase of the land and lots described at a certain price, to be paid for in stock, was properly admitted as showing the terms of the agreement with defendant as the president.</p> <p>Id.—Improper Evidence—Understanding and Intention op Depend-ant—Conclusion.—Questions on direct examination of the defendant as to his understanding and intention to convey the lots in question were properly disallowed as calling for the conclusion of the witness.</p> <p>Id.—Disposition op Stock Immaterial—Aid op Company.—The subsequent disposition of the stock received in consideration of the purchase of the land and lots, by placing it in the hands of the trustees to aid the company in tiding over the financial, distress, could not, in the absence of an agreement so to do, release appellant from his obligation to convey the property, and was immaterial.</p> <p>Id.-—Advancement op. Money to Corporation—Position op Creditor.— The advance of money by the defendant to the corporation only placed defendant in a position in common with other creditors thereof, and could not entitle him to withhold the conveyance of the lots unless his claim was paid.</p> <p>ID.—Contract op Sale—Support op Findings.—Eeld, that the evidence in the record conclusively supports the findings that the defendant entered into an agreement to sell the lots in controversy, and that Ms conduct was such as to estop Mm from claiming the contrary.</p>

<p>HEARING on habeas corpus to the sheriff of the city and county of San Francisco, to test the validity of a commitment for contempt by the Superior Court of said city and county. F. H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Peter F. Dunne, Frank P. Murphy, Henry Ach, Robert Ferral, and Charles H. Fairall, for Petitioner.</p>

WRIT OF REVIEW to set aside proceedings upon commitment for contempt by the Superior Court of Los Angeles County. B. N. Smith, Judge. The facts are stated in the opinion of the court.

<p>Judgment—Res Adjudicata—Mode of Proof—Collateral Attack— Recitals of Jurisdictional Facts—Certified Copies of Judgment, Findings and Pleadings.—Where a judgment is offered as an estoppel, jurisdiction to render it must appear. The usual manner of proof of jurisdictional facts is to offer the judgment-roll; but where the attack upon a judgment rendered in the superior court is collateral, its recitals showing acquisition of the jurisdiction of the parties are evidence of the facts recited, and every intendment must be indulged in favor of the judgment. In such case, certified copies of the judgment, findings and pleadings are admissible to show what issues were concluded by the judgment, as against the parties and their privies, though unaccompanied by the judgment-roll.</p> <p>Id.—Judgment Against Intestate—Heirs and Widow Concluded.— A judgment binding upon an intestate is binding upon his heirs at law, and a judgment which would estop him in life would bar an action for the same cause by his widow, who stands in his shoes, after his death.</p> <p>Id.—Identity of Issues—Action by Privy in Estate—Estoppel by Former Judgment.—For the purpose of determining whether the issues determined by the former judgment are the same as those presented in an action by a privy in estate of the losing party, resort may be had to the pleadings and findings introduced in evidence in connection with the former judgment, and where it appears that the issues are the same, and that the same evidence would be required to support the former action which would be required in the one at bar, the plaintiff is estopped by the adjudication therein had.</p>

<p>Principal and Agent—Authority op Traveling Salesman—Warranty op Quality op Goods—Adjustment of Breach on Second Order.—Though a traveling salesman and soliciting agent has authority to bind his firm as principal by a warranty of the quality of goods sold under his order by the firm, he has no authority, after such goods have been sold and paid for, to determine a breach of warranty and adjust the breach by agreeing that the goods so sold may be retained, and their price deducted from a second order. His authority to sell is limited to a sale for cash only.</p> <p>Id.—Bemedy for Breach Against Principal.—The remedy for the breach of the warranty of quality by the agent is an action by the buyer to recover damages therefor against the principal whose goods were sold through the agent to the buyer.</p> <p>Is.—Action upon Second Order by Assignee—Bindings Against Evidence—Authority—beatification.—In an action by an assignee upon the second order obtained by the agent which was filled by the principal, findings that the agent was authorized to receive the former goods in exchange, and that the principal ratified the adjustment of the breach of warranty by the agent, are held to be against the evidence.</p>

<p>Deeds—Conditions—Waiver of Forfeiture—Grants Without Restriction.—A forfeiture provided for in a deed upon breach of conditions or restrictions against the carrying on of specified business thereon is waived by grants of adjoining portions of the tract by the same grantor, containing no conditions or restrictions.</p>

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

<p>Negligence—Future Damages Eesulting prom Injury—Expert Evidence op Physicians.—In an action for an injury resulting from negligence in order to justify a recovery for future consequences, the evidence must show with reasonable certainty that such consequence will follow. Where the injury was to the base of the brain, the testimony of experienced physicians is admissible to show that with reasonable certainty future evil consequences will result from the injury.</p> <p>Id.—Collision—Concurring Negligence of Railway Companies— Rule of “Last Clear Opportunity” Inapplicable.—Where the plaintiff was injured by a collision resulting from the concurring negligence of two street railway companies, the plaintiff may recover against either or both of them, and the rule of “the last clear opportunity to avoid the injury” is inapplicable, there being no contributory negligence of the plaintiff. In such case, the plaintiff, while in pursuit of her rights against both defendants, cannot be involved in a litigation to determine the respective rights of the defendants as against each other.</p>

<p>Banks—Custom as to Collection of Paper—-Knowledge Imputed to Depositor—Contract of Agency.—A reasonable custom of all the banks of a place that none of them shall be liable for commercial paper deposited with any one of them for collection elsewhere, until the proceeds thereof in actual money shall come to their possession, must be conclusively deemed known to the depositor, and to be binding upon him as an implied condition of the contract of agency, without reference to his knowledge or want of knowledge of the custom.</p> <p>Id.—Draft Forwarded for Collection—Failure of Collecting Bank —Loss of Drawing Bank.—-Where such a custom existed in the banks of San Francisco and Los Angeles, and a bank of the former city sent a draft to a bank of the latter for collection in Arizona, and the collecting bank in Arizona failed after collection, the loss must fall upon the San Francisco bank, which drew the draft.</p>

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

<p>Criminal Law—Preliminary Examination for Grand Larceny— Jurisdiction of Justice of the Peace—Trial for Petit Larceny. Where a justice of the peace, acting as a committing magistrate, conducts a preliminary examination upon a charge of grand larceny, he has no jurisdiction in the same proceeding, without the interposition of the formal complaint required by section 1426 of the Penal Code, to order the defendant to appear before him upon a trial for petit larceny. Such action is a mere attempted usurpation of power and is wholly nugatory and void.</p> <p>Id.—Indictment for Grand Larceny—Dismissal by Justice of the Peace not a Bar.—Where, upon the subsequent finding of an indictment for grand larceny, the justice of the peace, upon motion of the district attorney, dismissed the proceeding before him for petit larceny, the defendant cannot plead such dismissal as an acquittal of the lesser offense and a bar to prosecution under the indictment.</p>

<p>Criminal Law—Murder—Expert Evidence—Hypothetical Question. In a prosecution for murder, a medical expert testifying for the prosecution may be asked a hypothetical question based upon the evidence for the prosecution. It was not necessary that it should include all of the evidence in the case.</p> <p>Id.—Waiver of Objection to Hypothetical Question—Improper Objection.—An objection to the form of a hypothetical question as involving a conclusion, which was not urged in the superior court, and which could not prejudice the defendant, is waived and a general objection that the question was a “hypothetical question not warranted by law,” raises no issue and amounts to nothing.</p> <p>Id.—Instructions—Burden of Proof as to Elements of Crime.— An instruction that “each and every fact and circumstance relied upon by the prosecution must be proved by the evidence beyond all reasonable doubt, and if the jury are not satisfied beyond a reasonable doubt that each such fact and circumstance has been proven, it is your duty to find a verdict of not guilty,” is not prejudicial to the defendant, and is to be construed with other instructions given wherein the people’s duty to prove beyond a reasonable doubt all the elements of the crime charged was clearly set forth.</p> <p>Id.—Presumption of Innocence—Instruction Bequested by Defendant.—The defendant cannot complain of an instruction requested by himself, “that the presumption of innocence attaches at every stage of the case and to every fact essential to a conviction, and remains with the defendant throughout the trial until the contrary is established beyond a reasonable doubt.”</p> <p>Id.—Homicide by Officer—Eefusal of Instructions—Presumption of Official Duty.—Where an officer was charged with murder, the court properly refused to instruct the jury “that the law presumes that, if the defendant was an officer and acting as such at the time of the alleged homicide, he was doing his duty,” as it conveys the misleading suggestion that if the defendant was an officer he had the right to kill the deceased.</p>

<p>Appeal—Dismissal—Failure to File Transcript in Time.—An. appeal from a judgment must be dismissed for a failure to file the transcript on appeal within forty days after the appeal is perfected if no proceeding is pending for the settlement of a bill of exceptions or statement to be used on the appeal.</p> <p>Id.—Dismissal op Pending Proceedings—Lapse op Time.—Where all pending proceedings to settle a statement on motion for a new trial and all proceedings on the motion were dismissed, and more than forty days thereafter had elapsed without filing a transcript on appeal from the judgment, and no appeal from the order was taken within the time prescribed by law, and there is no answer to the motion to dismiss the appeal from the judgment, it must be dismissed.</p>

<p>Bond op Building Contractor—Validity at Common Law—Appeal— Law op the Case.—Where, upon a former appeal, the question was raised whether section 1203 of the Code of Civil Procedure, under which a contractor’s bond was given, was constitutional, and it was held that the bond, having been voluntarily given, was valid and enforceable as a common-law bond, said decision is the law of the case upon a second appeal, where the voluntary issue of the bond does not appear to have been in issue.</p> <p>Id.—Purview op Law op the Case.-—The law of the case is not confined, in this state, to that portion of the opinion of the appellate court which can be said to be strictly essential to the disposition made of the case.</p> <p>Id.—Changes Made Pursuant to Building Contract—Pleading— Findings.—Where, pursuant to the decision made on the former appeal, the complaint was allowed to be amended, to set forth changes made pursuant to the terms of the contract, in an action against the sureties on the contractor's bond, and issues were joined thereupon, a finding that the changes were made pursuant to the contract conforms to the amended complaint.</p> <p>Id.—Statute op Limitations—Amended Complaint.—The amended complaint setting out the change provided for in the contract did not state a new cause of action, foreign to the case, made in the original complaint, on the contractor’s bond, so as to allow a plea of the statute of limitations thereto.</p>

<p>Action for Monet Loaned—Evidence—Error in Nonsuit.—In an action for money loaned by a corporation, where the plaintiff’s evidence showed that the corporation had authorized its president officially, as such, to draw checks for the moneys; that he had no money in bank to his own credit; that the checks of the corporation were signed by him officially in favor of the defendant for the amount of the alleged loan, and were cashed by defendant and returned to the secretary, after the president's death; that defendant had admitted receiving the money; that it had not been repaid; and that the deceased president had stated to the secretary that the money had been loaned to the defendant—the court erred in granting a nonsuit.</p> <p>Id.—Effect of Motion for Nonsuit—Demurrer to Evidence—Question of Law—Inferences of Fact.—A motion for a nonsuit cannot be granted where plaintiff’s evidence tends to establish the material averments of the complaint. The motion operates practically as a demurrer to plaintiff's- evidence, and assumes the truth of the facts proved and of all reasonable presumptions and inferences of fact therefrom, and presents a pure question of law for the court.</p> <p>Id.—Incompetent Evidence—Hearsay—Cross-examination.—Where hearsay evidence which had been excluded in chief was brought out by the defendant on cross-examination of the secretary, as to declarations made by the deceased president, effect must be given to it on the motion for nonsuit. Error in admitting evidence for the plaintiff cannot be reviewed on motion for a nonsuit.</p> <p>[d.—Inappropriate Findings on Motion—Credibility of Witnesses— Probative Power.—It was inappropriate for the court to make findings of fact on the motion for a nonsuit. The question of the credibility of witnesses cannot arise upon such motion except to give to the testimony for plaintiff its full probative power.</p> <p>Id.—Trial by Court—Immaterial Distinction as to Nonsuit.—There is no difference in the power and duty of the court, when sitting as a jury, and when trying a case by jury, as regards the decision of a motion for nonsuit, the rules for the decision of which are the same in either case. The only question to be decided is whether plaintiff’s evidence has made a prima facie ease.</p>

<p>Action fob Services—Amendment to Answer—Discretion—Settlement with Partnership—Refusal not Prejudicial.—In an action for services, although a proposed amendment to the answer to set up a settlement between plaintiff and a partnership of which defendant was a member, and payment in full, might well have been allowed so as to present the case upon its merits, yet it cannot be held that the court abused its discretion in refusing it, where its action was not prejudicial, it appearing that the action was tried upon the theory that the settlement was in issue.</p> <p>Id.—Individual Action—Evidence—Partnership—Joint Obligation— Instruction—Material Variance.—In an action for services against a defendant individually, where defendant’s evidence, received without objection, tended to prove that any liability in favor of plaintiff was against a partnership of which defendant was a member, the defendant was entitled to an instruction that if the jury found that the services were rendered at the request of the defendant acting as a member of the partnership to the plaintiff’s knowledge, their verdict should be for the defendant. In such case the obligation would be joint, and the instruction is addressed to the question of a material variance between the complaint and the evidence.</p> <p>Id.—Hearsay Evidence—Prejudicial Error.—It was prejudicial error to admit hearsay evidence either to prove the value of plaintiff’s services, or to corroborate the testimony of plaintiff that he was employed by the defendant, or to show a conversation with the register of the state land office, to excuse delay in a suit for years that should have been dismissed on motion.</p>

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

<p>PETITION for writ of prohibition to the Superior Court of Nevada County. F. T. Nilón, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>State Reform School—Improper Commitment of Adult—Habeas Corpus.—Only minors between the ages of eight and eighteen, when found to be incorrigible, can be committed to the Whittier State Reform School. Where an adult female has been committed thereto, as being incorrigible, she must be discharged upon writ of habeas corpus.</p>

<p>MOTION to dismiss appeal from a judgment of the Superior Court of Orange County, and from an order denying a new trial. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mechanics’ Liens—Foreclosure—Money Due Contractor—Deposit by Owner to Abide Judgment—Appeal—Stay Bond—Mandamus. In a consolidated mechanics' lien suit for foreclosure of liens against the owner of the property and the contractors, where the owner deposits in court the amount due to the contractors to abide the judgment therein, and to be applied in satisfaction thereof as the court may direct, the deposit must be construed to refer to the judgment finally rendered; and where an appeal is taken by the owner, upon a stay bond, he is not entitled, pending the appeal, to a writ of mandate to compel a return of the deposit, in the absence of an order of the court to that effect and a refusal to obey it by the custodian of the money.</p>

<p>Action to Quiet Title—Evidence—United States Patent—Record of Certified Copt—Recorder’s Copt.—In an action to quiet title, where plaintiff deraigns title under a patent from the United States, a copy of which, certified by the commissioner of the general land office, was recorded in the proper county, the record of such copy has, under section 1160 of the Civil Code, prima facie, the same force and effect as the original for title or for evidence “until the original letters patent be recorded," and under section 1833 of the Code of Civil Procedure, the copy of such record certified by the recording officer is prima facie evidence.</p> <p>Id.—Tax Title—Objections to Evidence—Reservation of Rulings bt Court—Reasons not Stated.—Where the defendant relied upon a tax title derived from the state, objections to the introduction of which were formally stated, and the defendant had full opportunity to answer them, and rulings thereupon were reserved with the consent of both parties, it cannot be held that the defendant was prejudiced by the final ruling excluding the title without stating the reasons for such ruling.</p> <p>Id.—Invalid Certificate of Sale—Failure to Recite Years of Assessment—Void Deed.—Under section 3776 of the Political Code requiring a certificate of sale by a tax collector to the state for delinquent assessment to recite the year of the assessment, a certificate which recites that the property was assessed in the year 18— is void and a deed issued thereunder to the state conveyed no title.</p> <p>Id.—Recital oe Year in Caption.—The recital of the year in the caption of the certificate is immaterial. The caption is no part of the certificate to which the tax collector certified, and cannot be referred to in aid of the certificate in a matter required by the statute to appear therein.</p> <p>Id.—Proceedings on Tax Sale in Invitum—Strict Pursuit op Statutes.—Proceedings on tax sale are in invitum, and to be valid must be strioti juris. The power exercised is purely statutory, and the steps directed by the statute must be strictly pursued.</p>

<p>APPEAL from a judgment of the Superior Court of Tehama County, and from an order dismissing a proceeding upon writ of review. John F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

. APPEAL from a judgment of the Superior Court of Tehama County, and from an order denying a new trial. Wm. M. Pinch, Judge presiding. The facts are stated in the opinion of the court.

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

<p>New Trial—Statement—Omission of Specifications—Refusal to Allow Amendment—Discretion—Review upon Appeal.-—Though an order refusing to allow a supplemental amendment to the statement on motion for new trial to add thereto specifications wholly omitted therefrom by oversight and excusable neglect, under section 473 of the Code of Civil Procedure, is reviewable upon appeal therefrom, yet such order was addressed to the discretion of the trial court, and where the review upon appeal shows no abuse of discretion, the order refusing to grant the relief will be affirmed.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a motion to dissolve an attachment. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Habeas Corpus—Conviction upon Plea of Guilty of Burglary in First Degree—Determination of Degree—Jurisdiction—Presumption—Upon a petition for habeas corpus the attack upon a judgment of conviction in the superior court upon a plea of guilty of burglary in the first degree is collateral, and every intendment is in favor of the judgment. Though it seems that, in such case, no substantial right of the defendant would be invaded by failure of the court to determine the degree, yet the only question upon habeas corpus is as to the jurisdiction; and if it be supposed necessary that the court should determine the degree, it must be presumed, where the record does not affirmatively show the contrary, that the court determined the degree upon sufficient evidence notwithstanding the plea.</p>

<p>Action fob Maintenance—Equity Case—Order fob Allowance Pending Suit—Appeal—Jurisdiction of Supreme Court—Transfer.— One who has a cause of action for divorce may, without suing for a divorce, maintain a separate cause of action for maintenance, addressed to the equity jurisdiction of the superior court. An appeal from an order granting an allowance pending such action should he taken directly to the supreme court. When taken to this court, it cannot he dismissed, hut must he transferred to the supreme court under section 4 of article "VT of the constitution.</p>

<p>Habeas Corpus—Criminal Law—New Information—Error not Be-viewable.—Any error in the exercise of the jurisdiction of the superior court in allowing a new information to be filed, based upon a correction by the magistrate of his order of commitment, without a re-examination, after a first information has been set aside as not warranted by the commitment, or any irregularity in the action of the magistrate, affecting the substantial rights of the defendant, is not reviewable upon habeas corpus, and can furnish no ground for his discharge.</p> <p>Id.—Information not Based on Order of Commitment—Setting Aside.—An information upon a commitment which held the petitioner for an offense different from that charged in the information has no proper basis on which to rest. The district attorney was not authorized to file it, and it was properly set aside.</p> <p>Id—Power of Superior Court—New Information—Correction of Irregularity by Magistrate.—The superior court has power, upon setting aside an information because not charging the offense for which the prisoner has been committed, or because of any irregularity in the order of commitment, to order a new information to be filed, or to direct any irregularity in the order of commitment to be rectified by the magistrate, and a new information based thereon to be filed.</p> <p>I'd.—Irregularity in Commitment—Assault with Intent to Murder—Omission of Words—“Malice Aforethought.”—Where it is clear that the magistrate intended to hold the defendant to answer for an assault with a deadly weapon with intent to commit murder, and the attempt was merely ineffectual for want of the technical words “with malice aforethought,” necessary to the complete description of the crime, it appears that the omission amounts only to an irregularity, which it is within the power of the magistrate to correct, upon being ordered to do so by the superior court.</p> <p>Id.—Lapse of Thirty Days After Examination—“Good Cause” fob Delay.—It seems that section 809 of the Penal Code requiring an information to be filed within thirty days after the order of commitment has no reference to a new information filed, upon a corrected order, after the original has been set aside; but if that section should be deemed applicable the conditions which gave rise to the necessity for the filing of the new information more than 'thirty days after the original order constitute “good cause” for the delay contemplated by section 1382 of the Penal Code.</p> <p>Id—re-examination not Required upon Correction of Commit-, ment.—Where the magistrate is directed by the court to correct an irregularity in the order of commitment after an information has been set aside, it is unnecessary for the magistrate to go into a re-examination of the charge in order to make the correction which would justify a new information upon the original charge.</p>

<p>. Action Against Municipal Corporation—Torts Ultra Vires—Injuries to Property—Insufficient Complaint.—A complaint in an action against a municipal corporation, setting forth acts of tort on the part of the defendant, willfully and wantonly causing injury to plaintiff’s property, and preventing the plaintiff from continuing its lawful business, to the plaintiff’s damage alleged, states acts of tort ultra vires to the municipal corporation, for which it cannot be held responsible, and states no cause of action against it'.</p>

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

PETITION for discharge upon writ of habeas corpus under a judgment imposed in the justice’s court of Berkeley, Alameda County. The facts are stated in the opinion of the court.

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

MOTION to dismiss an appeal from part of a judgment of the Superior Court of Los Angeles County. W. P. James, Judge. The facts are stated in the opinion of the court.

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

<p>Municipal Incorporation Act—Amendment—Towns ot Sixth Class —Repeal ot Code Provisions.—By the amendment of the municipal incorporation act, March 9, 1903, section 3366 of the Political Code was repealed by implication, as far as regards towns of the sixth class.</p> <p>Id.—Municipal Ordinance—Prohibition ot Liquor Traftic—Police Power.—By the re-enactment of subdivision 10 of section 862 of the municipal act of 1883 in the amended municipal incorporation act of 1903, as respects towns of the sixth class, a town of that class has police power under section 11 of article XI of the constitution to pass a municipal ordinance prohibiting the liquor traffic. Id.—Habeas Corpus—Sufficiency of Complaint.—A complaint charging conjunctively in the language of the ordinance all of the alternative prohibitions therein contained, as having been unlawfully and willfully done on a date specified must be deemed, upon habeas corpus, to be certainly a sufficient statement of the offense intended to be charged.</p> <p>Id.—Sufficiency of Judgment—Recital of Violation of Ordinance —Designation of Offense.—A judgment of conviction reciting that the petitioner was duly convicted of violating an ordinance of a town named of the sixth class, designated by its number and title, and adjudging the offense of violating the same, as charged in the complaint, and that it be punished by a suitable fine, contains a sufficient designation of the offense charged.</p>

<p>State Lands—Recession of Lake—Truth of Affidavit—Subsequent Agreement to Sell Before Certificate.—Where it appears that at the time of an application to purchase state lands uncovered by the recession of a lake, in pursuance of the act of 1893. that the prior applicant truthfully stated in his affidavit that he desired to purchase the land “for his own use and benefit, and for the use and benefit of no other persons whatsoever,” a subsequent agreement to sell the land ' to another person about forty days after the application and’before the issuance of the certificate of purchase is not forbidden by that statute, nor by any statute of the state for the sale of state lands.</p> <p>Id.—Statute Allowing Sale of Certificate—Constructive Policy of Law—Restraints upon Alienation.—The express statutory grant of the right to sell “certificates of purchase and all rights acquired thereunder,” in section 1315 of the Political Code, cannot be construed as an expression of legislative intent that one who agreed to sell after filing his application, and before the issuance of his certificate of purchase, should lose his right to purchase. The policy of the law is to discourage restraints upon alienation. Id.—Effect of Subsequent Contracts of Sale as Evidence—Conflict of Evidence—Support of Finding.—Assuming that contracts to sell made subsequently to an application to purchase state lands, before the issuance of a certificate, would constitute any evidence tending to show the falsity of the affidavit, which would defeat the purchase, yet where it appears that there was nevertheless a conflict of testimony upon the issue as to whether or not defendant, at the time he made the prior application to purchase, did so for his own use and benefit, the finding of the court in his favor on that issue cannot be disturbed upon appeal.</p>

<p>Lease—Lien of Lessee for Advances—Prevention of Crops—Act of God—Recovery Back of Advances.—Where, by the terms of a lease, the lessees were to farm the land leased for crops of grain and hay, and to make a specified advance to the lessors, and thereafter a monthly sum on demand, and all advances made were to be a lien on the lessors’ share of the crops with interest when harvested, and where, after using all possible endeavor to raise crops thereon, the crops were prevented and wholly destroyed by the act of God, through the agency of floods, the lessees were not bound to make any further advances on demand, and were entitled before the expiration of the lease to sue to recover back the amount of advances made with interest.</p> <p>ID.-SUDEICIENCY OF FINDINGS-PASTURAGE OP STOCK-COUNTERCLAIM BY Lessors.—Held, that the findings for the plaintiffs sufficiently cover all of the material issues raised by the pleadings; and when the court found that no crop of hay could be raised or cut upon the land, and that, after the flood, a very small quantity of grass grew thereon, mixed with weeds, on which sheep and cattle could be and were pastured by plaintiffs for a limited time, the plaintiffs were entitled to such pasturage, and findings that plain-, tiffs were entitled thereto, and that defendants take nothing by their counterclaim for the alleged value thereof, sufficiently respond to the issues raised by the counterclaim.</p>

<p>Action fob Breach of Contract—Sale of Land—Assumption of Chattel Mortgages—Claims of Defendant—Burden of Proof— Bindings.—In an action to recover damages for a breach of contract by the defendant, in consideration of a sale and conveyance ef land to him by the plaintiff, to assume and pay two chattel mortgages on the orange crop growing on the land conveyed and also upon plaintiff’s remaining land, where the defendant by answer and cross-complaint alleged that it was agreed that the entire crop was to belong to defendant, and that the crop taken by the mortgagee was removed by plaintiff without defendant’s consent, the burden of proof was upon the defendant to prove Ms allegations, and where he failed to do so, the court properly found against him in that regard.</p> <p>Id.—Single Cause of Action—Elements of Damage—Misjoinder not Shown.—Where the complaint counted on a cause of action for damages for breach of the contract in an.aggregate sum, but divided the aggregate amount of the two chattel mortgages assumed by defendant into two elements of damage—the first, for partial failure of the consideration of the conveyance, measured by the proceeds of oranges belonging to plaintiff, wMeh were applied toward payment of the chattel mortgages so assumed; and second, the unpaid balance necessary to clear plaintiff’s remaining land from the lien of the mortgages—it states but one cause of action for breach of the contract to plaintiff’s injury, and shows no misjoinder of causes of action.</p> <p>Id.—Uncertainty or Ambiguity not Misleading.—Where there is no uncertainty or ambiguity wMeh could mislead the defendant in pleading to the complaint, a demurrer on that ground was properly overruled.</p> <p>Id.-—-Parties—Mortgagee.—The mortgagee was neither a necessary nor a proper party to the action for breach of the contract made by the defendant with the plaintiff to assume 'and pay off the mortgages.</p> <p>Id.—Estoppel of Defendant—Assumption of Mortgage Made by Third Party—Direction to Mortgagee.—Where the larger crop mortgage was executed by a third party, and constituted a lien on all of plaintiff’s crops, its assumption by defendant, in consideration of the conveyance of land to him, estopped him from questioning whether plaintiff’s obligation to pay it was a legal or moral one; and having directed the mortgagee to apply the pro' ceeds of plaintiff’s oranges to its payment, he is estopped to deny the validity and enforceability of the obligation against plaintiff’s demand for a repayment of the money so applied.</p> <p>Id.—Construction of Contract—Evidence, Purpose and Circumstances.—In ascertaining the meaning of the language of the contract, evidence showing its purpose or object, and the circumstances surrounding its execution, was admissible, and must be taken into consideration in its construction.</p> <p>Id.-—Evidence—Exhibits and Records of Corporation Mortgagee— Identification.—Exhibits, copies of account sales check sheets of the corporation mortgagee showing particulars of oranges received and sold by it for account of plaintiff, also, a ledger sheet’ ’ and “weigher’s receiving account slip,’’ all of which were identified as original papers and records of the corporation by their proper custodian, were admissible in evidence.</p>

<p>Action fob Death—Nonsuit at Close of Evidence—Contributory Negligence—Constitutional Law—Jury Trial.—In an action for death, where it clearly appeared at the close of all of the evidence for both parties that the deceased was guilty of contributory negligence, and that if the case had been submitted to the jury it would be the duty of the court to set aside a verdict for the plaintiff, a nonsuit was properly granted. Such action of the court was hot violative of the constitutional right of trial by jury.</p>

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

<p>Criminal Law—Bape—Motion to Set Aside Information—Legality of Commitment.—Where the only ground of a motion to set aside an information for rape was that the defendant was not legally committed by a magistrate, evidence of a commitment indorsed on the complaint and signed by the committing magistrate, stating that “it appearing to me the offense, to wit, felony rape, in the within complaint mentioned has been committed and there is sufficient cause to believe the within Amadeo Bianchino guilty thereof, I order that he be held to answer the same,” etc., shows an order in strict accord with the requirement of section 872 of the Penal Code.</p> <p>Id.—Variance not Urged—Variance in Date Unimportant.—Where no ground of variance in the description of the offense was urged upon the motion, it cannot be considered as a ground thereof. But where it appears that only one offense was committed, a mere variance in the date thereof between the complaint and information is unimportant.</p> <p>Id.—Evidence—Bape of Child—Bemoteness of Complaint—Infection of Venereal Disease.—Where the rape was committed upon a child five years of age who was incompetent to testify, and the child became infected with a venereal disease as the result of the rape, the complaint of pain by the child, and as to the cause of it, was not too remote under the circumstances. The rule of corroboration does not apply where the child is of too tender an age to testify.</p> <p>Id__Befusal to Allow Defendant’s Physician to Examine Child— Harmless Buling.—Held, that the refusal of the court to allow defendant’s physician to examine the child was harmless in view of the facts.</p> <p>Id.—Order of Proof-—Corpus Delicti—Discretion.—The order of proof is largely within the discretion of the court. The corpus delicti should ordinarily be shown first; but unless it clearly appears that defendant was prejudiced by a ruling permitting other evidence before the corpus delicti was established, such ruling will not justify a reversal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. P. Laird, C. L. Claflin, H. L. Packard, G. W. Zartman, H. V. Kimberlin, and G. H. Smith, amicus curiae, for Appellants.</p>

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

<p>Ejectment—Unpatented Mining Claims—Issues—Pleading—Findings—Attack upon Plaintiffs’ Deraignment—Forfeiture—Relocation.—In an action of ejectment for unpatented lode mining claims, where the complaint tendered the usual issues as to ownership, right of possession and ouster, the defendants, upon issues joined thereupon, were entitled to make any proof which would defeat the plaintiffs’ title, and may introduce testimony assailing plaintiffs’ deraignment of title, without pleading it, and showing a forfeiture by failure of plaintiffs to do annual assessment work for three years, and a valid location and holding by one of the defendants as a qualified locator without specially pleading it; and findings against plaintiffs’ deraignment of title, and establishing plaintiffs’ forfeiture of title, and the validity of defendants’ relocation and holding upon sufficient evidence, cannot be assailed.</p> <p>Id.—Deed Fraudulently Obtained.—A deed to the plaintiffs, which was obtained by plaintiffs fraudulently and wrongfully and surreptitiously, without the knowledge, consent, or acquiescence of the grantor, is no more effectual to pass title to" them than if it were a total forgery, there being no principle of equitable estoppel applicable to the facts.</p> <p>Id.—Undelivered Deed from Corporation to Plaintiffs.—A deed from a corporation to the plaintiffs which was never delivered passed no title to them.</p> <p>Id.—Relocation by One Defendant—Plaintiffs’ Averment of Possession by All Defendants.—Where the formal relocation was made by one of the defendants, but the plaintiffs have made all defendants parties, and aver possession by all of the defendants, a finding as to that effect is supported.</p> <p>Id.-—Corporate Existence op Dependant.—Where the plaintiffs alleged the corporate existence of the corporation defendant, no proof of its corporate character is required.</p>

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

<p>Transfer of Stock—Right to Repurchase—Pledge.—Where it appears that a transfer of one-half of the stock in a corporation by plaintiff to defendant was contemporaneous with a right given to repurchase the same, that the stock had a substantial value, and that defendant neither paid nor agreed to pay'anything in consideration of its transfer to him, that none of plaintiff’s existing liabilities as a stockholder were canceled or assumed by defendant, and as a condition of the retransfer plaintiff was to pay one-half of the money which a bank had loaned or would loan the company, further security being given for future loans to the company, the transfer of the stock is to be deemed a pledge and not a sale thereof.</p> <p>Id.—Agreements—Single Transaction—Language op Sale not Controlling.—The agreements whereby the stock was transferred to the defendant and the plaintiff was given the right of repurchase constituted one and the same transaction, and are to be taken together in view of all the circumstances of the case. The use of the words “Sold, transferred, and assigned,” and the recital that defendant is the owner of the stock cannot change the character of the transaction. For the purpose of ascertaining the real contract between the parties, the court looks beyond the terms of the instrument.</p> <p>Ib.—Action to Redeem prom Pledge—Nonsuit.—In an action to redeem from the pledge, a motion for a nonsuit admitted the truth of plaintiff's evidence, and every inference of fact that can be legitimately drawn therefrom. Held, that a motion for a non-suit, in view of the evidence for plaintiff, was improperly granted, and that the judgment of nonsuit must be reversed.</p>

<p>Criminal Law—Grand Larceny-—Support of "Verdict.—Where, upon the trial of a charge of grand larceny, there was legal evidence tending to prove the charge, the verdict of conviction is absolutely final, and cannot be reviewed upon appeal on the sole ground of insufficiency of the evidence to support the verdict.</p> <p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Carroll Cook, Judge.</p>

<p>Justices of the Peace—Salaries in Los Angeles Township.— Under the act of March 18, 1907, establishing a new system of county and township governments, by amendments of the Political Code, the four justices of the peace provided for in Los Angeles township, in section 4114 thereof, are, by the provisions of subdivision 15 of section 4231 thereof, each entitled to receive a salary of $3,000 per annum, payable in like manner and out of the same fund and at like times as county officers.</p> <p>Id.—Constitutional Law—Compensation in Proportion to Duties.— Such provision does not violate section 5 of article XI of the state constitution, requiring the compensation of officers to be regulated in proportion to duties. The adjustment of compensation by salaries in large cities, and fees in smaller cities, towns, and nonurban communities, proceeds upon intrinsic differences.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County setting aside a sale of real estate of a deceased person, and ordering a resale. G. A. Gibbs, Judge.</p> <p>The facts are stated in the opinion of the court</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. D. K. Trash, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. Marion Brooks, F. B. Guthrie, and Henry E. Wills, for Appellant.</p>

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

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

<p>Goods Sold and Delivered—Pleading—Partnership ' Liability— Waiver oe Nonjoinder.—A recovery may be had upon a partnership liability against one of the partners sued individually, where he fails to jilead a nonjoinder of his copartner. Such failure operates as a waiver of objection.</p> <p>Id.—Evidence—Sale to Partnership.—In such case evidence is admissible for the plaintiff to show that a partnership existed between defendant and a third person, and that the goods sold and delivered were sold and delivered to such partnership; and it was error to refuse to admit such evidence.</p>

<p>Action fob Slandeb—Dismissal—Attobney’s Fees—Decision upon Fobmeb Appeal—Propeb Judgment upon Remittitub—-Notice.— Where the plaintiff brought an action for slander, and caused the clerk to enter a dismissal thereof after defendant had incurred costs in taking steps to procure a dismissal thereof, and had -included $100 for counsel fees in his cost-bill, and upon a former appeal from an order striking out the counsel fees the order was reversed, leaving the cost-bill as to attorney’s fees intact, upon going down of the remittitur, the court properly rendered judgment against plaintiff for $100 counsel fees, without further notice and hearing, as an incident to the judgment, and for the further sum of $32 costs upon appeal, to which no objection was taken.</p> <p>Id.—Constitutionality of Counsel Fees in Slandeb Cases—Law of Case.—No constitutional objection appears to the allowance of counsel fees to the prevailing party in an action for slander, under a law passed prior to the adoption of the present constitution; but without passing definitely upon that question, it is sufficient to say that the decision made upon the former appeal for the allowance of counsel fees to the respondent has become the law of the case, and this decision has become final.</p>

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

<p>Divorce—Adultery—Evidence—Good Character of Defendant.—In action for divorce on the ground of adultery of the defendant, the character of the defendant is not in issue, and the court properly refused to admit evidence of her good character, where her good character as a witness had not been impeached.</p> <p>Id.—Good Character of Corespondent.—The corespondent named with whom the adultery was charged is not a party to the action, and where he had not been impeached as a witness, evidence of the excellence of his character was properly rejected.</p> <p>Id.-—Custody op Minors—Discretion.—Where the only minor was a boy fifteen years of age, and the defendant was adjudged guilty of adultery, the court had discretion to award the custody of the boy to his father. Such custody is always a matter within the discretion of the trial court; the contention that the excluded evidence of good character should have been received on that question has but little merit.</p> <p>Id.—Ruling op Trial Court Rejecting Evidence—Objection Immaterial.—The ruling of the trial court in rejecting evidence will be upheld on appeal, if correct, whether the ground on which it was based was stated in the objection as to the evidence or not.</p>

<p>Action for Services of Architect—Plea of Accord and Satisfaction—Check in Satisfaction—Execution not Denied—Judgment on Pleadings.—In an action to recover for the services of an architect, on a specified contract, where the answer sets up a different contract, and sets up a check paid in full of all demands by way of accord and satisfaction, the execution of which cheek was not denied, the court did not err in denying the defendant’s motion for judgment on the pleadings. The admission of the execution and genuineness of the check did not admit the plea of accord and satisfaction set forth in the answer.</p> <p>Id.—Memorandum on Check—In Full for Fees—Parol Evidence— Effect of Terms.—Where the check set forth in the answer, the execution of which was not denied, contained the written memorandum, "In full for 9th and Grand Ave. fees,’’ and it appears that the services sued for were for the erection of a hotel on 9th street and Grand avenue' in Los Angeles, the plaintiff might, notwithstanding the failure to deny its execution, introduce parol evidence to controvert it by showing mistake, fraud or like defense, or that it had no connection with the contract sued on; but, in the absence of such evidence, the instrument stands as an exponent of the facts therein set out, and must be taken for what it purports on its face to mean.</p> <p>Id .—Presumptive Knowledge—Improper Instruction.—The plaintiff, having failed to controvert or explain the check by parol testimony, must be presumed to have had full knowledge of the existence and terms of the memorandum on the check, when delivered to him, and before it passed out of his possession; and it was error to instruct the jury in effect that, notwithstanding they found the cheek was intended to apply to the demand sued on, they must, nevertheless, in order to render a verdict for the defendant, find the further fact that plaintiff was aware of the memorandum written thereon, when delivered, or that he knew of the writing upon the check before it passed out of his possession.</p>

<p>Eminent Domain—Condemnation of Water Eights—Insufficient Complaint—Specified Towns and “Other Places” in County. A complaint by a water company in an action of eminent domain, against the owners of riparian rights to condemn the same to public use for the purpose of supplying two specified towns “and of other places in said county” with water, the term “other places” is too indefinite to embrace either the whole county, or any particular body of inhabitants thereof, nor can those words be regarded as surplusage; but the complaint must be held insufficient as seeking the aid of the statute for an unauthorized purpose, and as being indefinite and uncertain as to the uses for which the condemnation was sought.</p> <p>Id.-—Blending of Lawful and Unlawful Purposes.—Where the proceeding shows upon its face two distinct uses or purposes, one lawful and the other not, which are so inseparably blended in the petition and orders as not to be severable, it cannot be sustained; and an application to condemn property for purposes, part of which are within and part not within the act, will be bad in toto.</p> <p>Id.—Terms of Statute—Extent of Use.—The statute, besides allowing water to be condemned for public use in towns, villages, and incorporated cities, allows it to be condemned in behalf of canals, ditches, etc., for “conducting or storing water for the use of the inhabitants of any county,” not for the inhabitants of places in any county indefinitely described, or for the inhabitants of less than those of the entire county. All may not enjoy the use, but the use must be capable of enjoyment by all.</p> <p>Id.—Complaint—Public Use—Finding.—A complaint seeking to condemn water rights for public use must state facts showing that the use is one of those enumerated in the statute. A mere general averment that the use for which the property is sought to be taken is a public use is insufficient; and the trial court cannot obviate the requirement of pleading by a finding that the use is a public use.</p> <p>Id.—Measure of Damages—Depreciation in Value of Property.— The measure of damages for the taking of the rights of a riparian owner for a public use is the difference in what the property was worth immediately before the appropriation, and what it was worth affected by the appropriation. The single fact to be determined is the depreciation in the value of the property affected by the taking away from it the water sought to be condemned, to be ascertained by competent and proper evidence.</p>

<p>Judgment by Default—Vacation—Notice and Affidavits—Conjunctive Form of Grounds—Construction—Sufficiency.—The affidavits used on a motion to vacate a judgment ,by default are not to be construed with the strictness applied to a pleading in matters of form; and the fact that the grounds of the motion are stated conjunctively in the notice and affidavits filed, that “said defendant failed to answ.er in time through inadvertence, mistake, and excusable neglect, ’ ’ is not material. It is sufficient if the facts proved justify the action of the court in relieving the applicant on the ground of inadvertence, mistake, or excusable neglect.</p> <p>Id.—Sufficiency of Showing—Action fob Forcible Entry—Employment for Answering Defendant —Reliance upon Supposed Ownership—Discretion.—Where the moving party was in the employ of a codefendant who answered the complaint, and who informed him that an interurban railway company was the owner of the premises and would take care of the suit, and that he need not bother about it, and that relying thereupon he failed to answer, under the circumstances he had the right to rely upon the statement that the corporation whom he believed was the real party in interest would protect him, and the fact that his employer had answered was a circumstance to be considered by the court, and the court properly exercised its discretion in favor of a trial of the case on its merits.</p> <p>Id.—Affidavit of Merits—Verified Answer.—Although no sufficient separate affidavit of merits was embodied in the affidavits, yet where the verified answer to the complaint was filed with the affidavits, and a copy thereof was served with the notice and affidavits, such verified answer is of itself a sufficient affidavit of merits.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. ,W. P. James, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Drew Pruitt, Charles L. Batcheller, and Thomas C. Ridgway, for Appellant.</p>

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

<p>Mechanics ’ Liens—Void Contract—Prior Commencement of Work— Omission to Provide for Final Payment.—Where the work on a building to cost $3,100 was commenced and materials furnished prior to the execution, and record o£ the contract, and it omitted to provide for the final payment of twenty-five per cent of the contract price at least thirty-five days after completion of the building, the contract is void as to all persons performing labor or furnishing materials on the building.</p> <p>Id.—Statement fob Benefit of Contbactob—Statute not Complied With.—The mere statement in the contract, for the benefit of the contractor, that the owner might pay the whole amount, when receipts were produced, cannot be construed as a substantial compliance with the statute as to the last payment, or even an attempt in that direction, where it appears that the whole contract price was payable upon completion, and the last payment was treated by the parties as the completion payment, the amount of which was depleted by the expenses of completion made necessary by the contractor’s abandonment of the contract.</p> <p>Id.—Equality of Bights of Lien Claimants.—The court erred in refusing to award a lien for the full value of the material and labor to those who bestowed the same after the contract was filed. The constitutional provision which gives to mechanics, materialmen, artisans and laborers of every class a lien upon the property upon which they bestowed labor or furnished materials places such parties in the same class. Their equality is established by the constitution and cannot be impaired or destroyed by the legislature. One lien claimant cannot be preferred over others.</p> <p>Id.—Attorneys’ Fees not Allowable.-—Lien claimants cannot be allowed attorneys’ fees in an action to foreclose their liens.</p> <p>Id.-—Lien upon Structure and Land Constitutional.—It is no infringement upon an existing right of property in the owner of land upon which a structure is placed by his own act to cause the lien given upon the structure to extend to the land necessary for its use.</p> <p>Id.—Effect of Code Sections—Constitution—Bights of Owner of Property.—Sections 1183 and 1184 of the Code of Civil Procedure, regulating the terms required for the validity of building contracts in excess of $1,000, are not invalid, as impairing any existing right of the owner of the property. Those sections confer a right not previously existing, by which his liability is curtailed; if these sections did not exist or are not complied with, the constitution itself guarantees a lien to the full value of all labor or material bestowed or furnished. The owner cannot be injured, but is afforded security, if he honestly complies with those sections.</p>

<p>APPLICATION for writ of prohibition to the Superior Court of Kings County. John G. Covert, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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