Volume 51 — California Appellate Reports

<p>5. Law of the road as to crossings, note, 1 Ann. Cas. 164.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Peace Officers — Enforcement of Federal Statute by. — The federal government may-by statute avail itself, to a limited extent, where necessary, of the executive functions of state officers to assist in enforcing valid federal statutes enacted under the constitution to promote the public welfare.</p> <p>[2] Id. — Violation of National Prohibition Law — Issuance of Warrant to City Police Officer.—Under section 1014 of the Revised Statutes of the United States a valid warrant may be issued, directed to a city police officer, to make an arrest for a violation of the national prohibition law.</p> <p>[3] Id.—Agreement to Forego Official Action—Bribery.—Where an officer of the law becomes directly or indirectly vested with power to take or not to take some official action, he is guilty of bribery if he corruptly offers for a reward to forego official action.</p> <p>[4] Id.—Sale of Intoxicating Liquor—Agreement to Receive Bribe —Prosecution in State Court.—A police officer who agrees to receive a bribe, in consideration of which he promises not to arrest a certain person in the event that person should engage in the sale of intoxicating liquor in violation of the national prohibition law, may be prosecuted in the superior court of this state for a violation of section 68 of the Penal Code.</p> <p>[5] Id.—Enforcement of National Prohibition Law — Acceptance of Bribe by City Police Officer—Validity of State Statute— Jurisdiction of State Court.—To the extent that section 68 of the Penal Code, against bribery, regulates the duties of all persons who act under the law and prescribes penalties for the violation of such duties, it is a valid statute, assuming concurrent jurisdiction by the state in the enforcement of the national prohibition law, giving our state court jurisdiction to try a city police officer charged with bribery in agreeing not to arrest for a violation of the national prohibition law.</p> <p>[6] Prohibition—When Writ Available.—The remedy of prohibition is available only in a case of excess of jurisdiction. (Opinion of supreme court on denial of hearing.)</p> <p>[7] Id.—Agreement to Receive Bribe—Sufficiency of Indictment— Jurisdiction of State Court.—Where an indictment clearly attempts to charge the offense on the part of an executive officer of agreement to receive a bribe, a crime defined by section 68 of the Penal Code, it is for the superior court, in the exercise of its jurisdiction and subject to review on appeal from the judgment, to determine as to the sufficiency of the facts stated to show such crime; and an alleged defect in such indictment is not available as a ground for prohibiting the superior court from proceeding with the trial of the cause. (Opinion of supreme court on denial of hearing.)</p> <p>3. Bribery and solicitation of bribes, note, 116 Am. St. Rep. 38. 6. When remedy of .prohibition is available, notes, 12 Am. Dec. 604; 18 Am. Dec. 238; 111 Am. St. Rep. 929; Ann. Cas. 1913D, 595.</p>

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

<p>[1] Criminal Law — Manslaughter—Verdict—Evidence. — In this prosecution for the crime of murder, in which the defendant, a peace officer, was convicted of the crime of manslaughter, the verdict was amply supported by the evidence.</p> <p>[2] Id.—Appeal—Power of Appellate Court to Set Aside Verdict —Weight of Evidence.—The appellate court can interfere and set aside verdicts in criminal cases only when it can be justly declared, as a proposition of law, that the verdict is without the necessary evidentiary support; and the fact that there is a conflict in the evidence, or that certain witnesses stated facts in giving their testimony at the trial that they did not state in testimony given by them at the coroner’s inquest and the preliminary examination, does not render the testimony for the people or the testimony of said witnesses inherently improbable.</p> <p>[3] Id.—Arrest by Peace Officer—Use of Force—Bight to Take Life of Offender.—A peace officer, when attempting to arrest a person charged with a public crime, or who has committed a public offense in the presence of the officer, or whom the officer has probable cause for believing has committed a crime, may use all necessary force to effect the arrest, or may take the life of the purported offender if it becomes necessary to save or preserve his own, but there must be a real or apparent necessity to justify the resort by the officer to such an extreme measure for his own safety or protection.</p> <p>3. Homicide by peace officer in attempting to enforce his commands against innocent persons, note, I». R. A. 1918D, 379.</p>

<p>PROCEEDING on Habeas Corpus to secure the release of a woman held under quarantine and isolation.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] False Impeisonment—Insufficient Complaint.—In an action for damages on account of alleged false imprisonment for contempt of court and for criminal libel, the complaint fails to state a cause of action where it does not show how or in what manner or under what circumstances plaintiff was committed for contempt of court, or in what respect defendants could be responsible for his conviction and imprisonment on this charge, or how or under what circumstances plaintiff was imprisoned on a charge of criminal libel, or in what manner his arrest or release was secured—whether by serving or satisfying a fixed term' of imprisonment or otherwise—and there is nothing in the complaint to show that the process upon which plaintiff was arrested was defective or void, or the judgment thereon illegal, or that the courts were without power or jurisdiction -to arrest and imprison plaintiff on the charges recited.</p> <p>[2] Id.—Want op Jurisdiction—Pleading.—A complaint for false imprisonment must aver facts from which want of jurisdiction appears. Allegations that the imprisonment was unlawful and void tender no issue.</p> <p>[3] Id.—Imprisonment in Due Course op Regular Proceedings.— An action for false imprisonment does not lie for an imprisonment in due course of regular proceedings of a court having jurisdiction of the offense.</p> <p>3. False imprisonment, notes, 54 Am. Dec. 258 ; 67 Am. St. Rep. 408, 118 Am. St. Rep. 719.</p>

<p>[1] Negligence—Driver op Automobile—Duty of Passenger—Imputed Negligence—Exercise of Care—Presumption.—While the negligence of the driver of an automobile cannot be imputed to a person riding with him as a passenger where the latter has no control over the former or over- the operation of the automobile, nevertheless such passenger is in duty bound to exercise ordinary care for his own safety, without which the injury received would be attributable to bis own negligence; and in the absence of evidence to the contrary, the law presumes that he did everything that a reasonably prudent man would have done under the same circumstances for the protection of his own safety.</p> <p>[2] Id.—Death of Automobile Passenger—Action for Damages— Contributory Negligence—Evidence.—In an action for damages for the death of an automobile passenger, as the result of a collision between the automdbile and the defendant’s train, assuming that the deceased, when the automobile reached a point thirty feet distant from the crossing and traveling at a speed of only four miles per hour, saw the train three hundred feet away therefrom and approaching at a high rate of speed, it cannot be said as a matter of law that his failure to interfere with the driver’s operation of the ear rather than to rely upon the latter’s judgment in escaping the threatened danger, or that his failure to leave the car, constituted contributory negligence.</p> <p>1. Negligence of driver of automobile as imputable to occupant or guest, notes, 19 Ann. Cas. 1225; Ann. Cas. 1913B, 684; Ann. Cas. 1915B, 769; Ann. Cas. 1916E, 268; Ann. Cas. 1918B, 841; Ann. Cas. 1918C, 961.</p>

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>S. J. Higgins, City Attorney, F. McCleneghan, Deputy City Attorney, M. R. Thorp and Paul S. Honberger for Appellants.</p>

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

<p>[1] Irrigation Districts—Construction of Canals—Lack of Funds —Mandamus.—Before the appellate court can issue a writ of mandate requiring an irrigation district to immediately undertake the construction of canals, ditches, and laterals authorized by the voters of the district, it must be shown that funds of the district are available for such work.</p> <p>[2] Id.—Limitation of Bight to Water—Beneficial Use.—While section 18 of the Wright irrigation law provides that each land owner in a district is entitled to have water apportioned to him upon the ratio which the last assessment upon the land of such owner bears to the whole sum assessed upon the district, the right of a land owner to any quantity of water is limited always to its beneficial use.</p> <p>[3] Id.—Mandamus—Necessity for Specific Demand.—Before a writ of mandate should issue, it must appear that a specific demand has been made by the petitioner for that to which he is entitled, in order that the one upon whom the demand is made may have opportunity to comply.</p> <p>[4] Id.—Delivery of Water—Mandamus—Essential Averments.— Before a writ of mandate can properly issue to compel an irrigation district to deliver to a land owner the quantity of water apportioned to him under the irrigation laws relating to the district, it must be first made to appear that the petitioner is prepared to use the same, that demand has been made therefor, that the water is available, and that compliance with such demand or request has been refused.</p>

<p>[1] Fraudulent 'Conveyances—Noncompliance With Code—Liability op Other Property op Transferee to Attachment—Possession of Transferor.—The fact that the transfer of certain specific personal property from one person to another, in satisfaction of a present indebtedness, is not accompanied by the acts required by section 3440 of the Civil Code does not render other personal property subsequently acquired by the transferee subject to attachment at the instance of a third person who was a creditor of the transferor at the time such transfer was made, even though this latter property is placed upon a ranch owned by the transferee but which the transferor is employed to manage.</p> <p>[2] Id.—Execution of Mortgage—Ownership of Property—Presumption—Rebuttal.—The act of a person in executing a mortgage on certain personal property for the balance of the purchase price thereof at most raises a presumption that he is the owner of such property, and that presumption is overcome by proof that the entire purchase price of the property, including the mortgage, was paid by another.</p> <p>[3] Id.—Ownership of Property—Exemption Affidavit as Evidence.—In an action in the nature of claim and delivery to recover certain personal property levied upon by the sheriff as the property of plaintiff’s son, the fact that the latter, long after the making of the levy, when asking for exemption from military duty, made an affidavit that plaintiff (his mother) was dependent upon Mm, which affidavit, in view of the fact that she was more than seventy years of age and feeble, he might very well have made, is, if competent evidence, of no weight whatsoever touching the issue whether he or his mother owned the property.</p>

<p>[1] Contracts—Purchase of Furniture—Action for Damages for Breach — Acquiescence in Findings of Arbitrators — Evidence—Findings.—In this action for damages alleged to have been "suffered by reason of the refusal and failure of the defendant to purchase the furniture of an apartment house, according to the terms of a written agreement which provided that the price therefor should be determined by arbitration, the evidence was amply sufficient to sustain the findings of the trial court to the effect that the action of the parties, in arriving at the price the defendant was to pay plaintiff for the furniture, was a substantial compliance with, their agreement, and that the finding of the arbitrators was acquiesced in and agreed to by the defendant.</p>

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

<p>[1] Divorce—Extreme Cruelty—Evidence—Erroneous Denial of Decree.—In this action for divorce upon the grounds of adultery and extreme cruelty, the evidence as to the defendant’s action on several occasions in brutally maltreating the plaintiff physically, as testified to by her, some of which acts of cruelty were sufficiently corroborated, and his open' association with a certain “holy roller” woman coadjutor, whom he insisted upon retaining in the home of the parties against the protest of plaintiff, and his conduct there with and demeanor toward that woman on the one hand and plaintiff on the other, as testified to by plaintiff, by a sister of defendant, by a minor daughter of the parties, and by other witnesses, was sufficient, in the absence of evidence on the part of the defendant in contradiction thereof to entitle plaintiff to a decree upon the ground of physical and mental cruelty; and the trial court committed error in directing that judgment be entered in favor of the defendant at the conclusion of the evidence for plaintiff.</p> <p>1. Cruelty as ground for divorce, notes, 29 Am. Dec. 674; 73 Am. Dec. 619; 40 Am. Bep. 463; 51 Am. Bep. 736; 65 Am. St. Bep. 69.</p>

<p>[1] Divorce—Desertion—Failure to Provide—Pleadings—Issues— Alimony—Evidence—Findings—Judgment.—In a contested action for divorce upon the grounds of desertion and willful failure to provide the issues are made by the pleadings taken’ as a whole, and where the pleadings show the plaintiff to be entitled to alimony from the defendant if the averments of her complaint are supported by the proofs in the ease, the trial court, upon finding such averments to be supported by the evidence, has the power to award the plaintiff alimony, based upon her necessities and the defendant’s financial ability to relieve them, notwithstanding the prayer of her complaint is only for divorce, for certain sums as attorney’s fees and costs, and for a specified sum per month “as temporary alimony pending the trial” of the action.</p>

<p>PROCEEDING on Certiorari to annul a judgment of the Superior Court of Merced County. Demurrer sustained and writ discharged.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Broker’s Commissions—Action to Recover—Procuring Contract for Delivery of Oil—Pleading—Conclusion of Law—Sufficiency of Complaint.—In an action to recover commissions for services rendered in the obtaining of a contract between defendant and another oil company, the commissions agreed to be paid being based upon the number of barrels of oil delivered under such contract, an allegation that a given number of barrels of oil were delivered “under the contract” is but the statement of a conclusion and will be stricken out on motion, the complaint being sufficient in that regard if it sets forth the contract between defendant and the other oil company, in full, states the number of barrels of oil that were delivered by such other oil company to defendant, and alleges that statements of the amount delivered, made up pursuant to a scheme provided in the contract, were rendered to defendant and were retained by it.</p> <p>[2] Id.—Allegation of Indebtedness—Insufficient Denial.—Where the complaint in such an action alleges the facts showing an indebtedness due plaintiff from the defendant and, further, that the amount of the indebtedness is due, owing, and unpaid, the denial of the latter allegation, without a traverse of the averments showing the indebtedness, raises no issue.</p> <p>[3] Id.—Foreign Content of Oil—Agreement of Parties—Rejection of Oral Evidence.—The written contract for the delivery of the oil having bound the defendant to take oil from the other company without limitation or diminution because of the presence in it of a foreign content of any percentage whatever, the trial court did not commit error in sustaining an objection to an offer of evidence intended to prove allegations of defendant’s answer and counterclaim to the effect that it was induced to enter into the agreement through the fraudulent misrepresentation of plaintiff that the oil to be delivered did not have a foreign content in excess of a stated percentage of its volume.</p>

<p>[1] Partnership — Fixed Duration —■ Misconduct of Copartners — Conduct of Business at Loss — Dissolution — Evidence.—Notwithstanding the duration of a partnership is fixed by agreement at a definite time, a partner has the right under the law to have it dissolved sooner because of the serious misconduct of his copartners or because the business can only be further conducted at a loss; and in this suit for dissolution of a partnership the evidence not only abundantly showed that one of the defendants was guilty of serious misconduct, entitling the plaintiff to a dissolution of the partnership, but it appeared from the evidence that the partnership had suffered a serious loss by fire and that the business of the concern could be conducted only at a permanent loss unless sufficient money could be borrowed.by the firm or obtained by means of a further contribution to its capital by the copartners.</p> <p>[2] Id.—Impairment of Capital — Contribution of Additional Capital.—Where there has been a substantial impairment of the original capital a partner is not required to furnish money or to engage his personal credit in order to rehabilitate or restore the partnership business.</p> <p>1. Grounds for dissolution of partnership, notes, 69 Am. St. Rep. 410: 4 Ann. Cas. 460.</p>

<p>[1] Quieting Title — Cross-complaint for Moneys Expended in Making Improvements—Reimbursement—Agreement—Evidence —Finding.—In this action to quiet title to certain real property, wherein the defendant by cross-complaint sought reimbursement for moneys expended by her intestate in improving the property, the evidence justified the trial court in finding that plaintiff’s intestate and defendant’s intestate had entered into an agreement that the latter would make said improvements, and that after the same had been completed the property should be sold and from the proceeds of such sale he should be reimbursed for the moneys expended by him in making said improvements.</p> <p>[2] Id.—Judgment—Sale of Property—Equity.—In such action, the trial court, sitting as a court of equity, having found that there was an agreement between the parties that after the improvements were made the property was to be sold and that out of the proceeds of such sale the costs of such improvements were to be paid, was authorized in directing a sale of the property and the payment from the proceeds of such sale of the amount due the estate of defendant’s intestate; and, to sustain such judgment, it was necessary that the trial court find that it was the intention of the parties to said agreement to create a lien in favor of defendant’s intestate for the value of said improvements.</p> <p>[3] Id.—Excessive Judgment—New Trial—Appeal.—In such an action, the claim that the judgment was excessive may not be made on appeal where that claim was not made to the lower court upon motion for a new trial.</p>

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

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

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

<p>[1] Trust—Conveyance by Father to Daughter—Conveyances by Daughter to Other Children upon Father’s Death—Finding Against Oral Promise—Sufficiency of Evidence.—In this action by certain children of a deceased person against one of the daughters of the deceased and the other children who refused to join as plaintiffs, to establish a trust, the finding against the oral promise alleged to have been made by the daughter to make conveyances of the property conveyed to her by her father to all of the children immediately upon his death finds substantial support in the record.</p>

<p>[1] Sureties—Deed of Trust—Protection Against Loss or Liability—Foreclosure—Previous Payment of Claim.—Where a deed of trust was given as counter-security to protect a surety not only against loss and damage, but also against liability on a bond, it was not necessary for the surety to pay the claim on the bond before it could maintain an action to foreclose the deed of trust.</p> <p>[2] Id.—Written Notice of Default—Limitation of . Time of Action—Material Conditions of Bond.—Conditions in a bond requiring written notice of default and limiting the time within which an action may be brought thereon are material, and compliance therewith is a condition precedent to the right of recovery thereon.</p> <p>[3] Id.—Bankruptcy of Surety—Filing and Allowance of Claim-Compliance With Time Limitation of Bond.—A provision of a bond limiting the time within which an action may be brought thereon is sufficiently complied with where bankruptcy proceedings are pending against the surety and a claim on the bond is filed and allowed by the master in chancery as a claim against the bankrupt within the time limited in the bond, since under such circumstances the institution of an action would be an idle and useless act.</p> <p>[4] Id. — Notice of Default — Condition Precedent to Becovery— Waiver by Surety—Effect upon Liability of Counter-surety. Compliance with a provision of a bond requiring written notice of default constitutes a condition essential to recovery on the bond, and such provision cannot be waived by the surety so far as the contingent liability of a counter-surety is concerned.</p> <p>[5] Id.—Becovery on Counter-security—Compliance With Bequirements of Bond—Burden of Proof.—In an action by the assignee of a surety to foreclose a deed of trust given as counter-security to protect the surety against loss or liability on a bond, the plaintiff has the burden of showing that the surety availed itself of all the defenses which were available to it to defeat recovery on the bond.</p> <p>[6] Id.—Allowance of Claim Against Bankrupt—Order not Conclusive on Counter-surety.—Where a deed of trust was given to indemnify a surety against loss or liability on a bond, an order in a bankruptcy proceeding allowing a claim on' the bond against the bankrupt surety is not conclusive upon the grantor of the deed of trust in an action of foreclosure by the assignee of the surety.</p> <p>[7] Judgments—Pasties—Estoppel. — Judgments are conclusive and binding on parties and their privies, but as to all others they are neither prima facie nor conclusively binding.</p> <p>7. Effeet upon surety of judgment against principal, notes, 9 Ann. Cas. 154; Ann. Cas. 1915D, 400; 40 L. R, A, (N, S.) 698.</p>

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

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

<p>[1] Judgment—Satisfaction—Appeal—Dismissal.—Where the plaintiff in an action of claim and delivery was awarded judgment for the alleged value of the property but no damages for detention, and thereafter took out execution and satisfied the judgment, he had not the right of appeal from the part of the judgment denying such damages, and the attempted appeal therefrom must be dismissed.</p>

<p>[1] Accounting—Part Profits of Sale of Beal Estate—Written Agreement — Findings — Terms of Prior Oral Agreement. — Where in añ action to compel the defendant to account to the plaintiff for a one-half interest in the profits ensuing from a sale of real estate, the defendant, who sold the land himself, alleged in full a written agreement certain in its terms wherein it was expressly agreed that plaintiff was to share in the profits only in the event that he sold the land, and the execution of such agreement was not denied, a finding that such agreement expressed the terms of a prior oral agreement merged therein sufficiently specified the terms of such prior agreement.</p> <p>1. Effect of contract expressly making broker’s right to commissions dependent upon “sale” of property or other condition beyond that ordinarily implied, note, 29 L. R. A. (N. S.) 533.</p> <p>[2] Pleading—Defense of Written Instrument—Rebuttal—Right of Plaintiff.—Where a defense is founded upon a written instrument, the plaintiff may controvert the instrument by evidence of fraud, mistake, undue influence, and like defenses under section 462 of the Code of Civil Procedure, and is not required to file an affidavit setting up any such ground upon which he may rely.</p> <p>[3] Findings—Issue Raised by Evidence—Want of Finding—-New Trial—Discretion.—Where an issue arises out of the evidence rather than the pleadings, and the party in whose behalf such issue is so raised, after being served with proposed findings by the other party, remains silent as to such issue, knowing from the court's opinion that the issue must be found against him, there is nothing in such conduct to appeal to the court’s discretion, if any there be, when the party moves for a new trial because of failure to find on the very issue concerning which he remained silent, particularly where he was expressly given the opportunity to speak. •</p> <p>[4] Id.—Failure to Find on Material Issue — Evidence — Insufficient Ground for Reversal.—A judgment will not be reversed for failure to find on a material issue where it appears from the evidence that the finding if made would have been adverse to the appellant.</p> <p>[5] Contracts — Written Agreement — Memorial of Prior Oral Agreement—Consideration.—Where a -written agreement constitutes simply a written memorial or expression of a prior oral agreement no other consideration than that supporting the parol agreement is required.</p>

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

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

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

<p>[1] Divorce—Modification of Final Decree—Provision for Minor Children—Jurisdiction.—Under the express provisions of section 138 of the Civil Code, the superior court has power after, the. entry of a final decree of divorce to modify its judgment at any time during the minority of the children of the marriage by providing for their custody, education, and support, even though the judgment may have contained no 'provision on the subject.</p>

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

<p>[1] Irrigation District—Enlargement of Boundaries — Inclusion of Noncontiguous Lands—Void Proceeding.—Under section 86 of the Irrigation District Act (Stats. 1897, p. 254), an order changing the boundaries of an irrigation district by the inclusion of additional territory is void where the district attempted to be annexed consists of not less than six large areas separated from each other by five natural features consisting of deep indentations of salt-water lagoons of the P'aeifie Ocean, since the act provides for the inclusion in such a district of only such lands as are contiguous and which taken together constitute one tract of land.</p>

<p>APPEAL from a decree of partial distribution of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge.</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 settling account of special administrator. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Vendor and Vendee—Action for Installment of Price—Subsequent Action for Recovery of Property-—Absence of Estoppel. A vendor under a contract of sale of real 'property does not, by bringing an action for the recovery of an installment less than the whole purchase price, thereby make an election of remedies which estops him from maintaining a subsequent action for the recovery of the property after all the installments have become due.</p> <p>[2] Id.—Vendee in Possession—Ejectment—Equitable Defense—■ Duty of Vendee.—A vendee under a contract of sale and in possession of the property cannot set up against the vendor in an action in ejectment after all the installments have become due an alleged equity arising out of the contract until he has performed or offered to perform the contract.</p>

<p>[1] Estates of Deceased Persons—Order Denting Probate of Will —Mental Unsoundness — Conflict of Evidence — Appeal. — A judgment refusing to admit a purported will to probate will not be reversed where based upon a verdict reached npon conflicting testimony that the testatrix at the time of its execution was of unsound mind and no substantial errors occurred at the trial.</p> <p>[2] Id.—Evidence—Mental Condition Prior and Subsequent to Alleged Testamentary Act.—In a contest to the probate of a will on the ground of mental unsoundness, evidence tending to show the condition of the mind of the testatrix before and after the date of the alleged testamentary act is relevant as bearing upon the mental condition at the time of execution, and such evidence is entitled to such weight as the jury considers it deserves.</p>

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

<p>APPEAL from an order of the Superior Court of San Diego County denying a motion to vacate an award in an arbitration proceeding. S. M. Marsh, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. T. Reed, George H. Shreve, Cooper, Collings & Shreve and Jerome H. Kann for Appellant.</p>

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

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

<p>[1] Water Eights—Prescriptive Title—Burden op Proop.—In an action to restrain a city from discontinuance of service of free water wherein the plaintiff claimed a prescriptive title, proof of a continuous free occupancy and use for a period of forty years established a prima fade ease, and the burden then devolved upon the defendant to show that the use was permissive or without the knowledge of the defendant.</p>

<p>[1] Criminal Law—Special Venire of Jurors—Disqualification of Sheriff — Appeal — Presumption from Record. — On an appeal from a judgment and an order denying a new trial in a criminal action, it must be presumed that there was a sufficient legal showing to justify the trial court in ordering a special venire of jurors to try the cause, and that upon a like showing it was found that the sheriff was not qualified under the law to summon such venire, where the minutes of the court relating to the orders are not reproduced in the transcript containing the record on appeal, and there is nothing in the transcript disclosing upon what showing the court ordered the special venire or who were present in court at the time the orders were made.</p> <p>[2] Id.—Disqualification of Sheriff—Placing of Jury in Charge of Deputy—Appeal—Objection not Available for First Time. Objection that the court erred, in view of the disqualification of the sheriff, in placing the jury in charge of one of the sheriff’s deputies pending its deliberation on a verdict cannot for the first time be raised on appeal.</p> <p>[3] Id.—Waiver of Objection.—Objection to an order placing the jury in charge of a sheriff’s deputy, the sheriff himself being disqualified, is waived where not made at the time of the making of the order.</p> <p>[4] Id.—Evidence—Good Reputation of Defendant—Scope of Direct and Cross Examination.—Evidence of the good reputation of a person on trial for a crime is valuable, as a rule, only in those ■cases where the guilt of the accused is required to be established, if at all, wholly by means of circumstantial evidence. A witness giving such testimony cannot, on direct examination, detail or refer to specific acts tending to show the defendant’s general reputation to be good, but on cross-examination the witness may be asked any fact or circumstance adversely affecting the defendant’s personal character.</p> <p>4. Right to cross-examine witness testifying to character, note, 14 L. B. A. (N. S.) 739. Cross-examination of witness as to character of accused, note, 20 L. B. A. 615.</p> <p>[5] Id. — Prior Conviction —■ Cross-examination op Character Witness—Waiver op Code Provision.—The provision of section 1025 of the Penal Code safeguarding a defendant charged with a prior conviction of a public offense who, upon his arraignment, admits such conviction, against the detrimental consequences which are apt to follow reference thereto in the presence of the jury, is not basal or fundamental, but only a statutory regulation in the trial of such a case, and the defendant by himself opening up the question of his good reputation waives his right to the protection of the code provision, and under such circumstances the district attorney may ask a character witness on cross-examination as to whether he ever heard that the defendant had been previously convicted of a like offense as charged in the information.</p> <p>[6] Id.—Past Record op Accused—Argument to Jury—Limitation. Except for the purpose of showing by argument that the defendant failed to establish a good general reputation, the district attorney is not at liberty to refer in his address to the jury to the past record of the accused.</p> <p>[7] Id.—Evidence—General Reputation—Hearing op Previous Discussion Unnecessary.—A witness as to the general reputation of the defendant is not to be refused permission to testify thereto because he had never heard the character of the defendant discussed.</p> <p>[8] Id. — Instruction — Reasonable Doubt. — An instruction that a reasonable doubt could only arise from the evidence actually produced in the case and that, consequently, such a doubt could not be created through or by want of evidence, involves a correct exposition of the doctrine.</p> <p>[9] Id.—-Larceny—Possession op Stolen Property—Instruction.— An instruction. in a prosecution for larceny, which, considered as a whole, means that if the property was stolen and in the possession of the defendant immediately after the theft the defendant is required to explain that his possession is innocent to remove the incriminatory effect of the circumstance, is a correct statement of the law.</p> <p>[10] Id.—Circumstantial Evidence — Instruction. — An instruction that when circumstantial evidence is wholly relied upon to prove the defendant’s connection with the commission of the crime, any relevant fact or circumstance leading to or surrounding the fact of the commission of such crime may be shown and considered by the jury, states a commonplace.</p> <p>[11] Id.—Credibility of Witnesses—Instruction.—An instruction in the language of section 1847 of the Code of Civil Procedure, providing the manner of considering evidence and testing credibility of-witnesses, does not enter the domain of fact, because of a concluding statement that the presumption that a witness speaks the truth may be repelled by the manner in which he testifies, his interests in the ease, if any, or his bias or prejudice.</p> <p>[12] Id.—Intent to Commit Crime—Instruction.—An instruction in the precise language of subdivision 1 of section 7 of the Penal Code, defining the legal meaning of the word "willfully” as applied to the intent with which an act is done or omitted, and including the concluding clause of the section that it does not require any intent to violate law, or to injure another, or to acquire an advantage, is misleading, and should never be given, but is not prejudicially erroneous where the court instructed the jury, in the language of section 20 of such code, that in every crime there must exist a union of act and intent.</p> <p>[13] Id.—Larceny—Possession of Stolen Property—Circumstance of Guilt.—The mere unexplained possession of stolen property is not ' of itself sufficient to establish the guilt of the possessor thereof, although a circumstance tending to show guilt, to be considered with any other proved facts or circumstances having a like tendency.</p> <p>[14] Id.—Jury—Special Venire — Summoning by Coroner — Procedure.—No formal showing or procedure is required in the ordering of a special venire of jurors, or in the appointment of the coroner or an elisor to summon such venire because of the disqualification of the sheriff. (On petition for rehearing.)</p> <p>[15] Id.—Time of Summoning Special Venire.—While the ordering of a special venire of jurors for a particular case and the appointment of the coroner or an elisor to summon the special jury before the trial has begun constitutes an unusual proceeding, there is no legal objection to such a procedure, when it has been made to appear satisfactorily to the court, howsoever informally, that a special venire will be required in the trial of the case. (On petition for rehearing.)</p> <p>[16] Id.—Disqualification of Sheriff—Special Venire — Summons by Coroner—Lack of Prejudice.—Where the sheriff was a witness against a defendant at two previous trials of the charge stated in the information and was to be a witness in the third trial, he was disqualified, under subdivision 4 of section 602 of the Code of Civil Procedure, from summoning a special venire of jurors, and the action of the court in ordering the coroner to summon the special venire, even if erroneous because of the absence of a formal showing of the disqualification of the sheriff, was not prejudicial but beneficial to the defendant. (On petition for rehearing.)</p> <p>13. Possession of recently stolen property as evidence of larceny, note, 12 L. R. A. (N. S.) 199.</p> <p>[17] Id.—Special Venire—Summoning by .Coroner—Regulation by Legislature—Constitutional Law.—The proceeding for the summoning of a special venire of jurors and for the summoning of such a venire by the coroner where the sheriff is disqualified is merely one of procedure, which the legislature may regulate, so long as the constitutional right of the defendant to a trial by a fair and impartial jury is not denied him. (On petition for rehearing.)</p> <p>[18] Id.—Order for Special Venire—Presence of Defendant—Presumption on Appeal.—If the presence of the defendant in court at the time an order is made for a special venire of jurors is essential to the validity of the proceedings, it must be assumed on appeal, upon the presumption óf the due regularity of the proceedings, that he was in attendance, in the absence of any affirmative showing to the contrary. (On petition for rehearing.)</p> <p>[19] Id.—Irregularity in Ordering Special Venire — Insufficient Ground for Reversal.-—Irregularity in the ordering of a special venire of jurors and directing the summoning of the venire by the coroner involves only a matter of procedure, and is not a sufficient ground for reversal of a conviction, in view of section 4% of article VI of the constitution, where it appears from an examination of the whole record that there has been no miscarriage of justice. (On petition for rehearing.)</p>

<p>[1] Sureties—Action upon Undertaking on Appeal—Time of Commencement.—An action against the sureties upon an undertaking given to stay the execution of an order appointing a receiver pending an appeal therefrom will not lie until the original judgment has become final and an action brought in thirty-one days thereafter is not barred by the statute of limitations.</p>

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

<p>[1] Unlawful Detainer—Attorney’s Fees—Pleading.—Even if it be conceded that attorney's fees are recoverable in an action of unlawful detainer, it is essential that the complaint should show that the plaintiff had incurred a liability on that account.</p> <p>[2] Id.—Judgment—Allowance of Bent to Judgment.—In an action of unlawful detainer, it is proper for the court, as damages, to include the rental value of the premises for the period after suit brought and up to the time of making of judgment, although the complaint only assigns default in the payment of two monthly installments of rent.</p>

<p>[1] Estates op Deceased Persons — Probate op Will — County Other Than Eesidence—Attack by Creditor.—While a creditor as such is not a person interested in a will or entitled under the provisions of section 1307 of the Code of Civil Procedure to contest its probate, he has such an interest in the estate as to entitle him to resist its probate in a county other than that in which the deceased was a resident at the time of his death.</p> <p>[2] Id.—Vacation op Order—Eight of Creditor.—Where a will has been admitted to probate in the wrong county, and the creditor has been thereby deprived of an opportunity to present his claim, and he makes a timely and satisfactory showing, he is entitled to have the order vacated and set aside so as to give him an opportunity to be heard in the matter.</p> <p>[3] Id.—Procedure to Vacate Order—Affidavits.—A motion to vacate an order admitting a will to probate in the wrong county based upon the alleged fraud of the executor is to be made and determined on affidavits.</p> <p>[4] Judgment—Lack op Jurisdiction—Motion to Vacate.—A judgment or order may be set aside on the ground of fraud, mistake, or lack of jurisdiction independently of section 473 of the Code of Civil Procedure, when the motion is based on such ground and is seasonably made.</p>

<p>[1] Pleading—Wanton Acts of Agent—Charging of Principal-Authorization or Ratification—Essential Averment.—A general allegation of agency is wholly insufficient to charge a principal with liability for the° agent’s wanton and malicious acts, but it mu'st be averred that the principal authorized or ratified them.</p> <p>[2] Id.—Sustaining Demurrer—Scope of Ruling.—A demurrer sustained to a complaint is deemed to be sustained on all tenable grounds, whether general or special.</p> <p>[3] Id.—Damages for Removal from Demised Premises — Insufficient Complaint.—In this action by a tenant against the owners of real property and their agents to recover damages for the alleged unlawful removal of plaintiff from the premises, the complaint did not state a cause of action against the. defendants, and several causes of action were improperly united.</p> <p>1. Liability of principal for unauthorized acts of agent, notes, 22 Am. St. Rep. 189; 88 Am. St. Rep. 779.</p>

<p>[1] Mortgage — Foreclosure — Default — Judgment in Excess of Prayer of Complaint.—In an action for the foreclosure of a mortgage in which the mortgagor’s default was entered for failure to answer, it was error to award the plaintiff a greater amount of interest than asked in the prayer of the complaint and also to award a sum paid for taxes for which no demand was made.</p>

<p>[1] Contract — Fraud — Election or Remedies. — A party who by fraudulent means has been induced to enter into a contract may, upon discovering the facts constituting fraud and by prompt action to that end, rescind the contract, or he may affirm the contract and recover according to its terms.</p> <p>[2] Corporations—Agreement to Repurchase Stock—Enforcement of Contract.—A contract by a corporation to redeem and repurchase “at any time” shares of stock sold by it may be enforced if the purchaser elects to take advantage of such option within a reasonable time.</p> <p>[3] lb.—Contract to Purchase Stock—Rescission for Fraud—Defenses of Laches and Ratification—Sufficiency of Evidence. In' this action against a corporation to rescind a contract of purchase of its stock on the ground of fraud, the court is held to have been justified in sustaining the defenses of laches and of ratification.</p> <p>[4] Id.—Voting of Stock — Ratification. — One who seeks to place himself outside of the pale of the corporation under a claim of right to rescind the sale of the stock to him by the corporation should not be permitted to enforce such right to rescind while at the same time exercising Ms voting rights as a stockholder.</p> <p>2. Right of corporation to purchase its own shares of stock, notes, 17 Ann. Cas. 1261; Ann. Cas. 1914B, 1016; 61 L. R. A. 621; 25 L. R. A. (3ST. S.) 50; 30 L, R, A. (N. S.) 694; 44 L. R. A. (N. S.) 156.</p>

<p>[1] Claim and Delivery—Possession of Personal Property—Claim of Ownership and Under Lease—Relative Rights of Possessor and Sheriff.—One in possession of personal property not only under claim of ownership by purchase, but also by virtue of renting the same from its owner, is entitled to the property, as against a sheriff under a writ of attachment issued in an action against the owner, unless the sheriff can show a better right thereto.</p> <p>[2] Id.—Loss of Attachment Lien—Abandonment of Possession— Evidence—Affidavit of Plaintiff.—In an action for the possession of personal property against a sheriff, it was error to admit in evidence, over defendant’s objection, the affidavit of the plaintiff in support of his contention that the lien of an attachment had been lost by abandonment of the property by the sheriff, but the error was without prejudice where the fact was established by other evidence.</p> <p>1. Right to maintain replevin for goods seized under process against another, notes, 7 Ann. Cas. 907; 11 Ann, Cas. 302.</p>

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

<p>ti] Landlord and Tenant—Implied Easements.—Rights and easements may and do pass to lessees by implication, but where the express words of the grant are not sufficient, implication which supplies those words flows either from a reasonable necessity, or, considering all the circumstances, from the manifest intention of the parties.</p> <p>[2] Id.—Lease of Premises Adjoining Hotel—Use of Toilet Facilities—Easement not Implied.—Where an owner of a hotel building leased an adjoining building also owned by him for a cafe and restaurant, and no mention was made in the lease of a doorway opening from a hallway into the restaurant, or of the use of such doorway or of the use of a toilet and lavatory-room in the rear of the hotel premises, the use of the door, passageway, and toilet facilities in connection with the lessees’ business was merely a convenience, but was not necessary to the beneficial use of the property, and therefore the lessor could not be enjoined from closing the same.</p>

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

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>A. J. Hill, County Counsel, and Edward T. Bishop, assistant County Counsel, for Appellants.</p>

<p>[1] Public Lands—Several Surveys—Eight of Government. ■—■ The government may, before patent, make as many surveys of a tract of public land as the land department desires, and the last accepted survey controls.</p> <p>[2] Id. — Conflicting Surveys — Adjoining Townships — Boundary Line.—A government survey made as a survey of lands in one township is the “final plat of the survey of the land returned to the general land office by the surveyor-general” within the meaning of such phrase as used in a patent, as against a subsequent survey, made before the issuance of the patent, of lands in an immediately adjoining township, and the line between the two townships must be taken as that fixed by the first survey, although erroneously established.</p>

<p>[1] Criminal Law—Weight of Evidence—Question for Jury.—In a criminal case, the weight of the testimony, the credibility of witnesses, and the necessary deductions to be drawn from the evidence are matters addressed to the consideration of the jury.</p> <p>[2] Id.—Plea of Self-defense — Sufficiency of Proof — Question for Jury.—In such a ease, disputed questions as to whether or not the plea of self-defense is sound or is corroborated are for the determination of the jury.</p> <p>[3] Id.-—Instructions Requested by Defendant—Law of Case.-—In such a case, the defendant cannot claim prejudice based upon the omission of the court in its charge to specifically state that the instructions offered by the defendant are the law of the case, in the absence of a request for such an instruction, and the jury is generally instructed that they must accept the instructions as statements of law bearing on the case.</p> <p>[4] Id.—Murder—Instructions—Justifiable Homicide.—-Where in a prosecution for murder the defendant offered as one of his instructions section 199 of the Penal Code, which provides that the homicide appearing to be justifiable or excusable the person in-dieted must, upon his trial, be fully acquitted and discharged, no harm was done by the modification of the instruction by leaving out the words “upon his trial.”</p> <p>[5] Id.—Reasonable Doubt as to Existence of Pacts—Elimination from Requested Instructions.—In such a prosecution, it was not error to eliminate from some of the instructions requested by the defendant the admonition that if there was a reasonable doubt as to the existence of certain facts in evidence, it was its duty to find the defendant not guilty, where it was allowed to remain in a number of the other instructions.</p> <p>[6] Id.—Murder—Presumption of Innocence — Self-defense — Instructions.—In this prosecution for murder, the charge, viewed as a whole, sufficiently informed the jury on the law of burden of proof and the presumption of innocence, and also correctly stated and sufficiently covered the law of self-defense.</p> <p>[7] Id.—Argumentative Instructions.—Instructions which are argumentative and in the nature of special pleas may correctly be refused.</p> <p>[8] Id.—Repetition of Instructions.—Instructions given in substance need not be repeated.</p>

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

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

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

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

<p>[1] Mechanics’ Liens—Improvement by Owner Himself—Time for Filing Claims of Lien.—Whore a building for which a material-man furnishes material is not constructed by or under any contract between the owner and a contractor but constructively by tho owner himself, the materialman comes within that class of lien ' claimants who have available to them under the statute but a single course to pursue to preserve their remedy by lien, namely, to file their liens within thirty -days after they have ceased to furnish material for the work to be done.</p> <p>[2] Id.—Appeal from Judgment of Foreclosup.e—Liens not Filed in Time—Right to Make Defense for First Time.—On an appeal from a judgment in an action for the foreclosure of mechanics’ liens, the appellant may urge the defense that the lien claims were filed too late, although such defense was not made in the trial court.</p> <p>[3] Appeal—Points not Made in Trial Court—Review.—Where material and incurable defects exist in a cause of action and appear on the face of the record, courts of appeal will not generally refuse to recognize such ground of appeal, even if the objection was not made in the court below.</p>

<p>APPEAL from an order of the Superior Court of Mendocino County denying an application for the settlement of a bill of exceptions. J. Q. White, Judge.</p> <p>The facts -are stated in the opinion of the court.</p>

<p>[1] Bailment—Beceipt fob Stobed Article—Printed Stipulation— Owner’s Bisk.—Where a check for a suitcase left for storage with a branch of the Young Men’s Christian Association contained a provision that the checked article was left with the association at the owner’s risk subject to storage rates and rules and its disposition when six months’ storage was due and unpaid, the owner was charged with notice of such provision and the association was thereby exempted from liability for the loss of the article.</p>

<p>[1] Municipal Corporations—Matters Affecting Public Welfare— Review of Acts of Corporate Officers.—When the legislature, or a board of supervisors' or city council engaged in the exercise of legislative functions, proceeds upon the assumption that a matter concerning which it acts is one affecting the public interest or designed to promote the general welfare, the assumption is conclusive upon the courts unless it is plainly apparent to them that the view entertained by the legislative body is without just foundation.</p> <p>[2] Id.—Los Angeles—Acquisition of Stadium—Charter.—The city of Los Angeles has the power under subdivision 4, section 2, article I, of its charter to construct and maintain a stadium.</p> <p>APPLICATIONS for Writs of Mandate to compel the execution of a lease on behalf of a county and of a municipal corporation.</p>

<p>[1] Promissory Note—Assignment—Subsequent Failure of Consideration—Knowledge of Assignee—Recovery.—A failure of consideration in whole or in part after a bona fide assignment of a promissory note is no defense to a. suit by the assignee against the maker, notwithstanding the former’s full knowledge of the original consideration, for which the note was given.</p> <p>1. Failure-of consideration for bill or note as affecting purchaser with knowledge of the consideration, notes, 46 L. R. A. (N. S.) 862; L. R. A. 1918F, 1018.</p> <p>Law governing liability of and defenses available to maker or acceptor of note, notes, 61 L. R. A. 217; 19 L. R. A. (N. S.) 670.</p>

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

<p>[1] Ejectment — Seizin Within Five Years — Sufficiency of Evidence.—In an action in ejectment to determine the ownership and right of possession of real property, which was distributed to the plaintiff in the administration of the estate of her deceased mother, the requirement of section 318 of the Code of Civil Procedure of seizin or possession within five years before the commencement of the action was properly satisfied when it was established that the plaintiff in consequence of the death of her mother had been invested with the legal title, and the burden was thereupon east upon the defendant to dissipate such presumption by showing that he had held and possessed the property adversely to such legal title for five years before the commencement of the action.</p> <p>[2] Id.—Adverse Possession—Infancy of Plaintiff—Running of Statute of Limitations.—Where in an action of divorce, the wife died before the judgment therein determining the real property involved to be her separate property had become final, the husband in an action of ejectment against him by the minor daughter of the deceased cannot set up adverse possession, since the running of the statute of limitations was interrupted during the litigation between the husband and wife and did not run against the minor after her inheritance of the property in view of her minority.</p> <p>[3] Pleading—Parties—Action by Minor—Waiver of Informality. An action by a minor should be brought in the name of the minor by guardian, but the failure to thus entitle the action is waived and cannot be raised for the first time on appeal, where no objection is made in the trial court and the case is tried on the theory that the pleadings are of such form and substance as to properly frame the issues that are actually tried.</p>

<p>[1] Restoration of Lost Records—Proceeding Under Act of'1906 —Right of Appeal.—A proceeding to restore a lost record under the act of the legislature approved June 16, 1906 (Stats,. 1906, p. 73), is a special proceeding and a right of appeal exists therein, although the statute makes no provision therefor.</p> <p>[2] Id.—Restoration of Naturalization Record—Appeal—Right of Alien Property Custodian.—The alien property custodian of the United States is a party interested who has the right of appeal in a proceeding under the act of June 16, 1906, to restore a lost record of naturalization, where the purpose of the proceeding is to recover property from such official which was taken over by him during the recent war upon the theory that the owner was an alien enemy.</p> <p>[3] Id.—Evidence—Competency—Waiver—Consideration on Appeal. In a proceeding to restore a lost record of naturalization, objection to the competency of evidence is waived by the petitioner, where admitted without objection, and such evidence may be considered on an appeal from the decree restoring the record in determining the sufficiency of the evidence to support the decree.</p> <p>[4] Id.—Restoration of Destroyed Naturalization Record—Sufficiency of Evidence.—In this proceeding under the act of June 16, 1906, to restore the records of the district court of the fourth judicial district in the matter of the naturalization of a citizen, which records were destroyed in the conflagration of 1906, the evidence is sufficient to sustain the judgment of restoration.</p>

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

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

<p>[1] Chattel Mortgage—Growing Crop—Certainty oe Description. A mortgage of a crop of corn designating it as “now being, standing and growing” upon a described parcel of land is not ineffective for uncertainty of description, and is good as to corn- in the ground but does not cover corn planted after the execution of the ' mortgage.</p>

<p>[1] Public Highway — Implied Dedication — Sufficiency of Evidence.—In this action to establish the existence of a public highway, the finding as to the use and repair by the public with the knowledge and consent and without any objection or hindrance by the owners is supported by the evidence.</p> <p>[2] Id. — Public User of Highway—■ Knowledge of Agents of Owner-—Effect of.—Knowledge of the general adverse use by the public of a strip of land as a highway may be attributed to the owner through his employees or agents.</p> <p>[3] Id.—Dedication—Implication from User. — While in order to constitute the dedication or abandonment spoken of in section 2618 of the Political Code, enumerating the general kinds of highways, it is essential that it appear that the owner assented to such dedication or abandonment, such assent may be implied from the conduct of the owner as well as by express declaration, and use by the public under such circumstances as to afford ground for a presumption of knowledge of such user is an assent to dedication.</p> <p>[4] Id.—Width of Public Highways—Construction of Code.—While it is provided in- section 2620 of the Political Code that all public highways shall be not less than forty feet wide and private roads not less than twenty feet wide, this restriction has application to such highways only as are laid out by formal act of the proper public authorities and after the initiation of the requisite preliminary proceedings, and has no application to such highways, roads, or lanes as have been created by dedication or abandonment.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, 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>[1] Vendor and Vendee—Want of Title—Eight of Vendee.—One may lawfully agree to sell either personal or real property to which at the time he has no title, and the want of title furnishes no ground for rescission unless upon tender the vendor is unable to comply with the agreement, and until the purchaser complies with his part of the contract by tendering such balance, he cannot demand a conveyance and is in no position to complain of the vendor’s default.</p> <p>[2] Id.—Default of Vendee—Measure of Damages.—The right to recover damages for the refusal to. complete a purchase of either real or personal property is fixed by the provisions of the Civil Code.</p>

<p>[1] Appeal—Order Denying New Trial — Dismissal. — While it is proper on an appeal from a judgment to review an order denying a motion for a new trial, an appeal from such an order is now unauthorized and should be dismissed.</p> <p>[2] Mortgage—Foreclosure—Extent of Ownership of Mortgagor— Finding—Conflict of Evidence—Appeal.—In an action for the foreclosure of a mortgage, a finding against the claim that at the time the mortgage was given the mortgagor owned but an undivided interest in the mortgaged property and that the mortgagee accepted the mortgage with knowledge of such fact cannot be disturbed, where the evidence as to such issue is in substantial conflict. ,</p> <p>[3] Id.-—Recovery on Insurance Policy — Expenditures of Mortgagee—Right of Reimbursement.—Under a mortgage clause providing that the mortgagee might insure the mortgaged buildings if the mortgagor failed to do so, with loss, if any, payable to the mortgagee, the mortgagee has the right to deduct from the proceeds collected under a policy of insurance the amount expended by him for costs and attorney’s fees in an action on the policy.</p> <p>[4] Id.—Attorney’s Fees—Fixing of Amount—Right of Court.— Under a mortgage clause providing for the payment of a reasonable counsel fee in the event of foreclosure, the court may fix the amount without recourse to any evidence of the reasonable value of the services.</p> <p>[5] Pleading—Notice of Overruling of Demurrer—Presence in Court—Waiver.—While it is true that the code contemplates service of a written notice on an adverse party of the action of the court in overruling a demurrer and allowing time to answer, yet where a party is represented by counsel in court present at the time such order is made, the necessity of the service of such a notice is dispensed with.</p> <p>[6] Attorney and Client—Appearance—Presumption.—In the absence of any showing to the contrary, it must be presumed that the appearance of an attorney for a party in an action is an authorized appearance.</p>

<p>HI Trusts—Payment of Purchase Price of Beal Property—Resultant Trust—Presumption.—Under section 853 of the Civil Code, where a person, out of her own funds, pays the entire purchase price of certain lots and, by a simple grant deed, causes title to the same to be conveyed to another, Lhe property at the instant the title passes is presumed to have been impressed with a trust in her favor.</p> <p>[2] Id. — Rebuttal of Presumption — Parol Evidence. — While such presumption of a resulting trust is a rebuttable one, in an action by the person who paid for the lots to compel a conveyance thereof to her, it is error to permit the defendant to resist that trust by proof of an express trust based upon a verbal understanding, contrary to the provisions of section 852 of the Civil Code.</p> <p>[3] Id.—Action to Enforce Resulting Trust—E’xpress Trust in Defendant’s Favor—Insufficiency of Evidence.—In this action to compel a conveyance of certain lots from defendant to plaintiff upon the theory that such lots were the subject óf a resulting trust in favor of plaintiff, neither the parol evidence introduced by defendant, conceding its competency and admissibility for the purpose, nor the letters relied upon, was sufficient to establisb the express trust pleaded by defendant in her answer, which .allegations the court found to be true.</p> <p>f4] Id.—Establishment of Tbust — Sufficiency of Documents.— While no particular formality is required in the creation of a trust in real property, nor need all the conditions of the trust be expressed in a single paper, where documents or letters are relied on to establish a trust they must clearly show not only the existence of the trust, but the extent to which the property is held in trust.</p>

<p>[1] Corporations—Watered Stock—Liability ot Holder to Corporation Creditor—Fraud—Pleading and Pkoof.—Where corporation stock is issued as fully paid in exchange for property grossly or fraudulently overvalued, a transferee of such stock who did not participate in the transaction whereby it was originally issued and who took his stock unaware of the character of the transaction is not liable to a judgment creditor of the corporation for any par| of the difference between the par value of the stock and the actual value of the property exchanged therefor; and it is incumbent upon the plaintiff, in an action by a judgment creditor against a transferee of such watered stock to allege in his complaint and prove at the trial that such transferee, when he acquired his stock, was fairly chargeable with knowledge of the fraudulent transaction whereby the stock, though issued as fully paid up, was issued in exchange for the overvalued property.</p> <p>1. Effect of creditor’s knowledge that stock was improperly issued as full paid upon his right to resort to holder for same, notes, 7 A. L. E. 972; 8 L. B. A. (N. S.) 271.</p> <p>[2] 'Id. — Action Against Stockholders — Theory op Trial — Construction op Pleadings—Admission—New Trial.—Where an action by a judgment creditor of a corporation against transferees of watered stock was commenced and prosecuted to judgment prior to the enunciation of the rule that the plaintiff in such an action must plead and prove that the defendants, when they acquired their stock, were fairly chargeable with knowledge of the fraudulent transaction whereby the stock, though issued as fully paid up, was issued in exchange for the overvalued property, and it is fairly apparent that neither court nor counsel ever had in mind the difference between the liability of those who were parties to the original fraudulent device and that of subsequent stockholders acquiring their stock without notice thereof, a new trial, where that distinction is observed, should be granted, and in such case the affirmátive averments of the answers should not be deemed to supply the necessary allegation in the complaint.</p> <p>[3] Id.—Actual Knowledge op Facts by Creditor—Absence op Fraud.—A creditor who deals with a corporation with actual notice that its stock, though issued as fully paid up, was issued in exchange for overvalued property is not deceived by the corporation's apparent or ostensible capitalization, and such creditor not being defrauded by the taking of the overvalued property in payment for stock, there can be no recovery from the holder of such watered stock.</p> <p>[4] Id. — Constructive Notice op Fraud — Eight op Eecovery. — Though a creditor cannot claim to have been deceived if, when he extended credit to the corporation, he had actual knowledge of all the facts connected with the fraudulent issue of the watered stock, a creditor who possesses only notice of facts sufficient to put an ordinarily prudent person upon inquiry may be actually deceived, in which case a recovery may be had.</p> <p>[5] Id.—Sale op Treasury Stock—Knowledge op Fraud—Liability op Holder.—Where, in accordance with the original scheme of the promoters of a corporation, part of its stock which was issued in exchange for property that was fraudulently overvalued, after being transferred to the “treasury” of the corporation, is sold for less than its par value, the sale of such stock is subject to the contingency that, in the event of the insolvency of the corporation, the holder of the stock, if fairly chargeable with knowledge of the original fraudulent transaction, is liable to creditors who became such in ignorance of the arrangement and who might rightfully assume that the stock had been fully paid up or that it is subject to call.</p> <p>[6] Id.—South Mountain Mining Company Case Overruled.—The rule of the South Mountain Mining Company ease (7 Sawy. 30), to the effect that the stockholders of a mining corporation are not liable to the corporation’s judgment creditors even though their shares were issued as fully paid in exchange for mining properties taken at an overvaluation, no longer expresses the rule in force in California.</p> <p>[7] Id. — Relation of Stockholder to Corporation — Issuance of Stock Without Consent.—The relation of a stockholder to a corporation is one of contract, either express or implied; and a party cannot be made a stockholder without his consent simply because some officer of the corporation, without authority, enters his name upon the books as a stockholder and causes stock to be issued in his name as such.</p> <p>[8] Id.—Indorsement and Delivery of Unauthorized Certificate— Ratification.—If one to whom an unauthorized certificate has been issued without his knowledge and consent, instead of returning the certificate to the corporation, indorses it and delivers it to another for transfer, that act,- unexplained, is a recognition of ownership, and, consequently, a ratification of the original unauthorized issue.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Com,mission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts—Installation of Heating System—Breach of Warranty—Bindings.—In an action for damages for the breach of a warranty, where the answer of the defendant admits the terms of the warranty, as pleaded by the plaintiffs, but denies the breach thereof and alleges that it duly performed all the conditions of the contract on its part to be performed, and as to this issue the court makes a finding adverse to the defendant and gives the plaintiffs judgment, such finding, under the rule that findings should be construed most favorably in support of the judgment, is sufficient in form and substance.</p> <p>[2] Id.—Breach of Warranty—Burden of Proof—Measure of Damages—Evidence—Where the warranty in such an action was as to the fitness of a heating system for the purpose of producing and distributing a sufficient amount of heat for the rooms in plaintiffs’ building, the burden is upon the plaintiffs not only to show a breach of the contract, but the difference in the value of the heating system for the particular, purpose for which it was intended and its actual value at the time when it was delivered to them, and this can be done only by evidence of facts and figures from which the amount of damage can be determined.</p> <p>[3] Id.—Value of Heating System—Measure of Damages.—If the heating system as installed was of less value to plaintiffs than the amount which they agreed to pay, then the difference in its value as a heating system and what it would have been had it complied with the warranty would constitute plaintiffs’ damage, but if it was of no value for the purpose contemplated, then the difference between the amount paid therefor and the actual value of the different articles which entered into its construction and retained by plaintiffs would constitute their damage.</p>

<p>[1] Waters and Water Bights—Eiparian Owners—Prescription.— While the right to take water from a stream, as against riparian owners, may be acquired by prescription, no such right may be acquired either by prescription or by appropriation by a lower as against an upper riparian owner in the same stream.</p> <p>[2] Id.—Appropriation of Water'—Bights Acquired. — No right to the water of a stream can be acquired by prescription where the lower riparian proprietor has taken the water out of the stream at a point on his own land and has used sueh water only as the upper riparian proprietor permitted it to pass down through his land to the lower owner; nor ean the nonuser of the water by tne upper riparian owner of land be invoked to strengthen the claim of appropriation or prescription by the lower riparian owner under like circumstances; but where the upper riparian owner appropriates the water the lower owner is injured at once and the law gives him a remedy, and if he fails to avail himself of it, the appropriation may, by lapse of time, ripen into an absolute right.</p> <p>1. Nature of riparian rights and lands to which they attach, notes, 9 Ann. Cas. 1235; Ann. Cas. 1913E, 709; Ann. Cas. 1915C, 1026; 41 L. R. A. 737; 11 I>. R A. (N. ¡3.) 1062.</p> <p>[3] Id.—Nature of Eight to Water—Deprivation of—Evidence.— The rights of riparian owners in the water of a stream are not mere easements or appurtenances to their lands, but are parts and parcels of their lands and of the ownership thereof, and they should not be deprived of those rights upon the plea of adverse possession or prescription unless such plea is sustained by the clearest and most satisfactory proof.</p> <p>[4] Id.—Quieting Title—Evidence—Finding.—In this action by lower riparian owners to quiet their title as against upper riparian owners to the water of a certain stream, a fair and reasonable interpretation of the whole evidence did not justify the finding that the defendants had by prescription or adverse user acquired the riparian rights of the plaintiffs in the stream in question.</p>

<p>[1] Mutual Water Corporations—Transfer of Property—Nonconsenting Stockholder—Right to Continued Service.—A person owning stock in a mutual water corporation incorporated in accordance with the provisions of section 324 of the Civil Code and which provides in its by-laws that the water should be supplied only to the owners of the stock, and that such stock should be appurtenant to certain lands described in the certificates issued therefor, does not lose his right to demand water when the corporation, without his consent, sells all its water rights and physical property, but the vendee takes such water rights and property subject to his vested right to demand water and must continue to furnish water to him.</p>

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

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

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

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

<p>APPEAL from an order of the Superior Court of Colusa County in denying a petition for a writ of mandate. Ernest Weyand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Automobile Collision—Personal Injuries—Action eor Damages—Evidence—Nonsuit.—In this action for damages for personal injuries sustained by plaintiff as the result of a collision with an automobile driven by an employee of the defendant, there having been no evidence connecting the defendant either with the ownership or operation of the automobile, and the only evidence offered by plaintiff having clearly shown that the driver of the automobile at the time of the accident was working upon his own time and beyond the scope of his employment with the defendant, the court properly granted defendant's motion for nonsuit.</p> <p>1. Who is responsible for negligence of chauffeur operating a leased or demonstrating car, notes, Ann. Cas. 1916A, 673; 40 L. R. A. (N. S.) 457; 44 L. R. A. (N. S.) 113; 51 It. R. A. (N. S.) 1164.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to discharge an attachment. F. J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Injunctions—Nature of—Appeal—Stay. — An appeal does not stay the operation of a preventive or prohibitory injunction, but does stay the operation of a mandatory injunction.</p> <p>[2] Id.—Restraint in Use of Business Name—Character of—Effect of Affirmative Requirements — Appeal. — An injunction which does not enjoin the defendants from continuing to conduct their business, but does enjoin them from continuing to conduit that business under a particular business name, is prohibitive, and not mandatory, even though such injunction renders certain affirmative acts necessary to be done by the defendants in order to continue the transaction of their business without disobeying its prohibitive provisions, and the operation of such injunction is not stayed by appeal.</p>

<p>[1] Dismissal—Change of Venue—Failure to Pat Fees Within-Year.—Where on motion of the defendant the place of trial of an action is changed from one county to another and the plaintiff does not pay the filing fees in the latter county within one year from the receipt of the papers therein, the court, under the provisions of section 581b of the Code of Civil Procedure, must dismiss the action.</p> <p>[2] Id.—Alternative Judgment—Jurisdiction.—Where the place of trial of an action in claim and delivery in which the property is taken from the defendants and given to the plaintiffs is changed from one county to another but the plaintiffs do not pay the filing fees in the latter county within one year from the receipt of the papers therein, the court, in rendering a judgment of dismissal of the action under the provisions of section 581b of the Code of Civil Procedure, has no jurisdiction to enter a judgment that the defendants recover of and from the plaintiffs the property in question, or the value thereof, together with damages for the detention thereof by the plaintiffs.</p>

1. Right to raise plea of former jeopardy in habeas corpus proceedings, note, 15 Ann, Gas, 327. APPLICATION for a Writ of Habeas Corpus. The facts are stated in the opinion of the court.

<p>[1] Landlord and Tenant—Looking of Door—Denial' of Admittance to Tenant—Good Faith—Oppression.—A person conducting a hotel is not guilty of oppression in changing the lock on the door to one of the housekeeping apartments therein during the absence of the person who had been occupying the same and in refusing to allow her to enter the rooms on her return, where he acts in good faith, believing that the relation of landlord and tenant does not exist and that he has the right to resort to that course in order to protect his lien on her personal belongings because of the rents past due, part of which she has refused to pay; neither would he be guilty of oppression in thereafter informing her friends who come to see her that the apartment had been closed, that she no longer lived at the hotel, and that there had been trouble between her and the management.</p> <p>[2] Id.—Wrongful Eviction—Exemplary Damages—Evidence. — In this action for compensatory and exemplary damages for an alleged wrongful eviction of plaintiff from a hotel conducted by defendant, the evidence failed to justify the findings of the trial court upon which its judgment for exemplary damages was based.</p> <p>2. Necessity of actual malice to justify exemplary damages for tort, notes, 28 Am. St. Rep. 870; 16 L. R. A. (N. S.) 440.</p>

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

<p>[1] Conversion—Value op Property—Pleading,—In an action for damages for the conversion of certain personal property, if the value of the property appears from the very description of its kind, it is not necessary to allege the particular amount of value.</p> <p>[2] Id.—Violation op Escrow Agreement—Parties.—A complaint setting out the conditions under which certain money and a promissory note, representing the agreed purchase price of certain property, were deposited in escrow by plaintiff, alleging a violation of the agreement by defendants, and showing that all the defendants were parties to the act of conversion of the money and note, states facts entitling plaintiff to judgment.</p> <p>[3] Id.—Duty of Escrow-holder—"Violation—Damage—Liability.— An escrow-holder, as a depositary, is charged with the duty of obeying the instructions of the parties as to the delivery of the property deposited with him, and a violation of this duty would result in a liability being cast upon him for damages to the person who might suffer injury.</p> <p>[4] Id.—Misjoinder of Parties — Want of Prejudice. ■—• Conceding that it was error to join the escrow-holder as a party defendant with the sellers, and that the trial court committed error in not sustaining his special demurrer far misjoinder, under section 4% of article VI of the constitution it could not be said that the error was prejudicial or that it resulted in a miscarriage of justice, where he was liable for the amount for which judgment was recovered against him.</p> <p>3. Liability of depositary for wrongful delivery of escrow, notes, Ann. Cas. 1915A, 277; L. R. A. 1917E, 907. Necessity of strict compliance with conditions of escrow, note, L, R. A. 1916A, 502. Effect of unauthorized delivery by escrow-holder upon rights of parties, note, Ann. Cas. 1917E, 435, 458.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Superior Court of Alameda County granting • a new trial. J. J. Trabueco, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Estates of Deceased Persons—Indebtedness of Heir to Estate—Setoff Against Distributive Share.—In distributing an estate, the probate court has no power to set off against a debt due the estate by an heir the undivided interest of said heir in the real estate of said estate.</p> <p>[2] Id.—Jurisdiction of Probate Court—Controversies Determinable.—While the superior court is a court of general jurisdiction, the powers which it exercises in proceedings in probate are entirely statutory, and in the administration and distribution of estates it exercises a special limited jurisdiction, and in the exercise of such jurisdiction it is not authorized, in the absence of express statutory authority, to determine controversies which do not strictly arise within the course of its probate procedure.</p> <p>[3] Id.—Judgment Against Heir—Priority of Lien—Distribution of Beal Property.—Where a third party obtains a money judgment against an heir prior to distribution of the estate and prior to the estate obtaining and docketing a money judgment against such heir on account of an indebtedness due the estate, such third party is entitled to have his judgment lien satisfied out of the interest of such heir in the real property of the estate in so far as the value of said interest will suffice to do so, and the probate court in the distribution of said estate is legally bound to distribute the interest of said heir in the real estate thereof to him, subject to the prior claim of such third party’s lien.</p> <p>1. Heir’s distributive share in realty as chargeable with his indebtedness to estate either as against land itself or proceeds of sale, notes, 7 Ann. Cas. 563; Ann. Cas. 1916D, 1294.</p>

<p>[1] Sales—Rescission op Contract—Evidence—Findings — Appeal. In an action for damages for breach of a contract for the purchase by defendant of a carload of caustic soda, a finding by the trial court, based upon conflicting evidence, that it had not been mutually agreed between the parties that the contract should be canceled, abandoned, and rescinded, and that the contract was never canceled, abandoned, and rescinded, is binding upon the appellate court.</p> <p>[2] B>.—Payment on Delivery—Breach—Title—Remedy op Seller. Where goods are sold to be paid for upon delivery, and payment is not made,, title to the goods remains in the seller, the latter is not required to sell the goods in the same manner as in the case of a pledge, giving notice to the buyer, but is only required to sell them for the highest price obtainable in the nearest available market.</p>

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

<p>[1] Leases—Executed Oral Modification—Want of Consideration — Liability upon Obligations of Lease. — An. executed oral agreement under which the lessor agreed for a period of time to accept from the lessee a lesser rental than that specified in the written lease will not relieve the lessee from the obligations of the lease, where no consideration passed to the lessor for agreeing to such modification.</p> <p>[2] Id.—Foreclosure of Mortgage—Appointment op Receiver—Compensation—Application of Funds.—Where, in an action to recover certain rents alleged to be due and unpaid under the terms of a written lease and to foreclose a mortgage upon certain furniture given to secure the payment of the rent, a receiver is appointed to take charge of the property, and plaintiff recovers judgment, the compensation allowed the receiver should be paid from the funds in his hands, and not from the rent due plaintiff from defendant which accrued after the receiver ceased to act, and which never came into his hands, and the balance retained to be applied to the payment of the judgment to which plaintiff is entitled.</p>

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

<p>[1] Trusts—Purchase of Lease — Good Faith — Consideration — Want of Notice of Interest of Third Party.—Where the lessees of certain prospective oil lands purchase all the right, title, and interest of the assignee of their lessor in such lands and in pending actions arising out of and under the terms of tie lease, paying a valuable consideration therefor, and without any notice, actual or constructive, that said assignee had entered into a eon-tract with the attorney prosecuting such actions whereby the latter acquired an interest in such lease and pending actions in consideration of Ms services, the said lessees do not take the property impressed with a trust in favor of said attorney, notwithstanding the said assignee in selling to them violated Ms agreement with said attorney that no compromise or settlement should be effected without the latter’s consent.</p> <p>[2] Id.—Agency—Knowledge op Attorney — Notice to Client.— Knowledge by notice to attorney or counsel acqmred during the negotiations for a purchase is constructive notice to the client, but the notice must be of a character which would put a prudent man upon such inquiry that if prosecuted with reasonable diligence it would lead to actual knowledge of the true facts with reference to the subject of the transaction.</p> <p>[3] Id.—Agreement Between Attorney and Client—Division op Proceeds—Notice op Trust.—Notice that a given attorney is to receive, as compensation for services rendered, one-third of the money obtained by his client in the settlement or compromise of certain leases and the litigation arising out of the failure of the lessees to perform the covenants thereof does not constitute notice such as is calculated to lead a reasonably prudent person to prosecute an inquiry as to whether the contract between such attorney and his client, in addition to the personal obligation assumed by the client to such attorney, creates a trust for the latter’s benefit.</p> <p>2. Notice to attorney as notice to client, notes, 57 Am. St. Hep. 914; 3 Ann. Gas. 441; 4 A. L. E. 1592.</p>

<p>[1] Landlord and Tenant—Action for Bent—Amount Due—'Sufficiency of Findings.—In an action for the recovery of rent, a statement in the conclusions of law that the plaintiff is entitled to judgment in the exact amount alleged in the complaint not to have been paid is inconsistent with the idea that payment had been made and, therefore, is equivalent to a finding that payment had not been made.</p> <p>[2] Id.—Failure to Make Finding—When not Beversible Error.— A judgment will not be reversed for failure to find upon a given issue, if there could have been but one finding upon such issue and that finding would have been adverse to the appellant.</p> <p>[3] Id.—Division of Profits—Absence of Partnership.—A provision in a lease requiring the lessee to pay to the lessor one-third of the net profits derived from the operation of the leased premises, consisting of a furnished hotel, in addition to the payment of a fixed rent charge, does not create a partnership between the parties.</p> <p>[4] Id.-—Assignment of Lease—Notice of Default—Liability of Assignor.—Where a lease is assigned, the assignor becomes a surety for the assignee under the obligations of the latter to pay the rent to the lessor, and, as such surety, the assignor is liable without notice of the default of his principal.</p> <p>3. What constitutes partnership, notes, 43 Am. St. Bep. 229; 115 Am. St. Bep. 400. 1</p> <p>[5] Id.—Notice of Default by Assignee—Agreement of Lessor— Oral Evidence Inadmissible.—In an action for the recovery of rent under a written lease, the testimony of an agent of the lessee, that, at the time of the execution by the lessor of his written consent to the assignment of the lease, the lessor stated that, should the assignee default in the payment of the rent, notice would be given before he took any action, is inadmissible as varying the terms of the written lease, where neither the lease nor the consent to the assignment provide for such notice and the lease does provide for re-entry by the lessor in case of default in the payment of rent.</p> <p>5. General rule that parol evidence is not admissible to vary, add to, or alter the terms of a written contract, notes, 56 Am. St. Eep. 659; 17 L. E. A. 270.</p>

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

<p>APPLICATION for a Writ of Certiorari to review a decree restoring record of naturalization. Bernard J. Flood, Judge.</p> <p>The facts are stated in the opinion of the court in the case entitled In the Matter of the Naturalisation of August Hermann Sielcken, ante, p. 538, [197 Pac. 668].</p>