Volume 52 — California Appellate Reports

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

<p>[1] Public Utilities—Ownership by Municipality—Jurisdiction of Bailroad Commission -— Certificate of Public Necessity and Convenience.—The Bailroad Commission of the state is not empowered to regulate and supervise municipally owned public utilities; and a municipality is not required to obtain from the state Bailroad Commission the certificate required by section 50 of the Public Utilities Act (Stats. 1915, p. 148), “that the present or future public convenience and necessity require, or will require, such construction,” in the matter of the construction and maintenance of its municipally operated electric plants and distributing system.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award annulled.</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>HI Criminal Law—Issuance op Warrant op Arrest—Sufficiency of Complaint to Justify—When Corroboration Necessary.— While a complaint made upon information and belief, unfortified with depositions, does not justify a magistrate in issuing a warrant for the arrest of a person charged with the commission of a felony, a verified complaint containing positive and direct allegations of every fact necessary to support the charge laid, though unsupported by depositions, justifies the magistrate in issuing a warrant of arrest, provided he is satisfied therefrom that a crime has been committed and he finds therefrom reasonable cause to believe that the accused is guilty.</p>

<p>[1] Broker's Commissions—Becoveby of—Procuring Cause of Sale —Completion of Transaction.—In order to entitle a real estate broker to recover commissions under the ordinary broker’s contract the evidence must show that he was the procuring cause of the sale and that the transaction was completed within the time limited in the contract, unless the delay was caused by the negligence, fault, or fraud of the owner.</p> <p>1. When real estate broker is considered as the procuring cause of sale or exchange effected, notes, 28 Am. St. Bep. 546; 139 Am. St. Bep. 225; 44 L. B. A. 321; 21 L. B. A. (N. S.) 328.</p> <p>[2] Id. — Procuring Cause of Sale — Unsuccessful Efforts of Broker,.—Where a real estate broker’s contract contains a provision that if the property is “sold to a party to whose attention said property was brought through the agency- of said agent” the broker shall receive five per cent “as a commission for promoting said sale,” this language imports an obligation on the part of the broker, to entitle him to commissions, to do something more than merely show the property and make unsuccessful efforts wholly unconnected with and to no extent traceable to the subsequent sale, and such language does not take the contract out of the general rule requiring the broker to be the procuring or efficient cause of the sale in order to entitle him to commissions.</p>

<p>[1] Wage Act—Action to Recover Penalty—Place of Performance or Payment—Pleading and PSjoof.—In an action to recover the statutory penalties provided for the nonpayment of wages (Stats. 1911, p. 1268; amended Stats. 1915, p. 299), the plaintiff must allege and prove that the services were contracted for, or were performed in, or at least were payable in, this state, or, if they were not, that they were contracted for or were payable in or were performed within some state or country that has adopted a statute similar to that of this state—a statute giving a penalty to wage-earners for nonpayment of their wages when due.</p> <p>[2] Id.—Nature of Penalty—Action to Enforce—Law Governing. While the penalty for the nonpayment of wages provided by such act appertains to the remedy, it also confers a substantive right, separate and distinct from the employee’s right to collect the agreed wage when due; and an action to enforce that penalty is governed by the lex loci, and not by the lex fori.</p> <p>[3] Id.—Presumption as to Lex Loci—When Inapplicable.—Where the law of the forum imposes a penalty for the nonpayment of wages when due, the presumption, until the contrary is shown, that the law of the place where the services may have been contracted for or where the claimant may have been discharged is the same as the law of the forum, cannot be indulged.</p>

<p>[1] Undue Influence—Action for Damages — Rescission — Pleading.—In an action for damages based solely upon the defendant’s exercise of undue influence over the plaintiff in the procurement from plaintiff of a contract for the purchase of the latter’s stock in a particular corporation and certain notes, the complaint fails to state a cause of action where it contains no averment of a rescission of the contract.</p> <p>[2] Fraud—Election of Remedies—Damages—Pleading.—Where the complaint shows that such action is not based wholly, or chiefly, upon the defendant’s undue influence over the plaintiff in the procurement of said contract, but that it is one essentially sounding in fraud, consisting in the fraudulent design and false representation of the defendant by which plaintiff was induced to part with his notes and stock without adequate consideration, and that the plaintiff has elected to affirm the contract and sue for damages, the complaint is sufficient without an averment of a rescission of the contract.</p> <p>[3] lb. — Infirmities of Defendant — Evidence of Mental Condition.—In such an action, where the gravamen of the plaintiff’s complaint is that by reason of his physical and mental infirmities he was the more easily misled by the defendant’s representations as to matters of fact which, had he been in his normal state of mind and body, he would have known or could have learned to be untrue, evidence as to his enfeebled mental condition on the date of the transaction in question is properly admitted.</p> <p>[4] Id.—Wealth and Experience of Defendant—Evidence—Want of Prejudice.—In such an action, the admission of evidence as to the defendant’s wealth and business experience is not prejudicial to the defendant where the verdict of the jury awards to the plaintiff not the large amount of damages which he prayed for, but only a sum which represents the actual value of the plaintiff’s stock at the time of the transaction in question as fixed by the testimony of the defendant himself.</p>

<p>[1] Criminal Law—Name of Defendant—Absence of Prejudicial Error.—Where an information charges a defendant by the name of “A. G." Goscinsky, and upon arraignment he states his name to be “A. 0.” Goscinsky, and thereafter the proceedings are conducted in that name, but during the trial, when called and examined as a witness, he gives his name as “Alfred C.” Goscinsky, the continuance of the proceedings in the name given by him upon his arraignment is not prejudicial to his defense and does ■ not result in a miscarriage of justice.</p> <p>[2] Id.—Place Where Grime Committed—Failure to Allege—Absence of Demurrer—Evidence—Appeal.—On appeal a defendant cannot predicate prejudicial error upon the omission of the information to state the county in which the offense was committed, where no special demurrer was interposed upon this ground and the evidence showed where it was committed.</p> <p>[3] Id.—Practicing Medicine Without License—Burden of Proof. In a prosecution for practicing medicine without a license, an instruction to the effect that the burden is upon the defendant “to prove that he has or has had a license if he seeks to make the possession of a license a defense,” correctly states the law.</p> <p>[4] Id.—Pine—Alternative Imprisonment—Erroneous Judgment— Appeal.—A judgment that a defendant convicted of the crime of practicing medicine without a license “shall pay a fine of $500, and in default of payment that he be imprisoned in the county jail one day for each two dollars of the fine,” or for a duration of 250 days, is contrary to the provisions of section 1205 of the Penal Code, which limits the duration of such alternate imprisonment to the maximum time by which the offense is punishable—■ in this ease 180 days—but the» judgment is not for that reason void, but only erroneous, and should be ordered modified by the appellate 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] Apprentices—Obligation to Provide Maintenance—Death of Master—Construction of New York Law.—Under section 6, chapter 635, Laws of New York, of the year 1872, the obligation of the master to provide maintenance and instruction for an indentured minor is personal to the master and terminates with his death, as also does the correlative obligation of the indentured minor to serve.</p> <p>[2] Id.—Action Based on Dejected Claim—Construction of Indenture.—In this action by an indentured minor to recover upon two rejected claims against the estate of her deceased “master,” the court correctly determined that the demands for support and maintenance, other than the portion of one of the demands for a specific sum agreed in the indenture or contract of service to be provided by the will of the deceased, were not authorized by the contract entered into by the deceased at the time plaintiff was .placed and indentured to her, construing that contract in the light of the obligations of the deceased under the laws of New York which applied to the case.</p>

<p>[1] Corporations—Issuance op Stock—Violation op Permit—Validity op Stock—Collateral Attack.—The fact that a corporation, at a time when the Investment Companies Act (Stats. 1913, p. 715) was in effect, issued shares of its capital stock in exchange for certain property the value of which did not conform to the value required and stated in the permit or certificate issued by the state corporation commissioner did not render such stock void, and the issuance thereof is not subject to collateral attack.</p>

<p>[1] Sales — Failure to Deliver Autotrucks — Evidence — Several Contracts—.Single Transaction.—In an action for failure to deliver autotrucks under separate written order contracts, each one of which provided that there was not between the parties any-understanding or agreement with respect to the order except such as was embraced in the terms thereof, parol evidence of the circumstances under which the contracts were made made was inadmissible for the purpose of showing that the contracts were all but parts of a single transaction. (Opinion of supreme court withheld on denial of hearing.)</p> <p>[2] Id.—Evidence—Custom—Execution oe Lease Contracts.—Evidence in such action of the existence of a custom and usage that where autotrucks were sold and the purchase price not paid in full, lease contracts in a certain form should be executed, was properly refused, since the admission thereof would have been a contradiction of the agreement of the parties as to the terms of the order contracts.</p> <p>[3] Id.-—Measure oe Damages.—The measure of damages for failure of the seller of autotrucks to make delivery is the difference between the contract price and the market price at the time when the seller repudiated the contracts.</p> <p>[4] Id.—Evidence—Lease Agreements—Insurance.—In the absence of a provision in such order contracts for the execution of lease agreements, parol evidence of an agreement that upon the delivery of each truck the purchaser would execute a lease agreement and carry insurance for the benefit of the seller was properly excluded. (Opinion of supreme court on denial of hearing.)</p> <p>1. Parol evidence to add to or vary writing, notes, 56 Am. St. Hep. 659; 17 L. E. A. 270.</p>

<p>[1] Estates of Deceased Persons—'Sale oe Beal Property—Apportionment of Commissions.—Where upon the hearing of a return of sale of real property belonging to the estate of a deceased person the court, following a custom and practice, allowed the brokers who returned the bid a commission on the amount thereof, and the agents who procured the increased bid a commission on the amount of the increase, the latter were not parties aggrieved by the order as to the former. (Opinion of supreme court as to practice not expressed on denial of hearing.)</p> <p>[2] Id. — Appeal — Order Fixing Commissions of Beal Estate Agents—Dismissal.—An order fixing and apportioning the commissions of real estate agents upon the confirmation of a sale of real property belonging to the estate of a deceased person is not an appealable order. (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Injunction—Restraining Criminal Proceedings.—An injunction will not be granted to protect any person from prosecution for the alleged commission of a criminal offense by proving to a court of equity that he is not guilty thereof, since the court having jurisdiction over such offenses is the forum in which such questions of fact, must be determined.</p> <p>1. Power of equity to enjoin criminal prosecutions, notes, 1 Ann. Cas. 121; 7 Ann. Cas. 576; 19 Ann. Cas. 459; Ann. Cas. 1916C, 1153; Ann. Cas. 1918E, 795.</p> <p>[2] Id.—Enforcement of License Tax Ordinance—Excessive Penalties—Insufficient Ground for Belief.—A title' insurance company is not entitled to an injunction restraining the officers of a municipality from enforcing a license tax ordinance against it, -where the validity of the ordinance is not challenged on any ground except that by reason of the severe penalties imposed, its enforcement "will constitute a denial of due process of law and of the equal protection of the laws.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Paul Nourse, A. D. Laughlin, O’Melveny, Millikin & Tuller and Hewlings Mumper for Appellant.</p>

<p>[1] Habeas Corpus—Release prom State Prison—Premature Application.—An application for a writ of habeas corpus by a convict in the state prison to secure his release based upon the sole ground that he has been given to know and understand that the warden will not discharge him until a date some time later than the day upon which he contends he is lawfully entitled to be discharged cannot be entertained.</p>

<p>[1] Corporations—Transfer of Stock—Separate Assignment—Entry on Books—Compliance With Section 3440 of Civil Code.— While section 324 of the Civil Code provides that shares of stock of a corporation may be transferred by indorsement and delivery of the certificate, but that such .transfer is not valid except' as to the parties thereto until entered upon the books of the corporation, a transfer by a separate instrument without such indorsement and delivery of the certificate may be made, and where entered on the books of the corporation there has been a sufficient compliance with the requirements of section 3440 of the Civil Code.</p> <p>[2] Id.—Purchaser at Execution Sale—Knowledge of Previous Sale of Stock Without Delivery of Certificate.—While one who purchases at execution sale shares of stock of a corporation, ■standing on the books in the name of the judgment debtor, is entitled to have the certificate of such shares reissued to him as such purchaser, if at the time of the purchase he acts in good faith and without notice that the outstanding certificate has been assigned and that the ownership of the stock has passed to some other person, the rule is inapplicable to a purchaser who has notice at the time ■ of the sale of the fact that the stock has been sold, although without an indorsement and delivery of the certificate.</p>

<p>[1] Parent and Child—Separation of Parents Without Divorce— Custody of Child.—When the parents of a minor are living in a state of separation without being divorced, the court has power to award the custody of the minor to either for such time and under such regulations as the ease may require, the child’s welfare being the controlling consideration.</p> <p>[2] Id.—Child of Tender Tears—Award of Custody to Mother.— Where the present conduct of the mother of a child of tender years satisfies the court that the child may safely be committed to her care, the mandate of section 246 of the Civil Code should be followed.</p> <p>1. Denial of custody of child to parent for its well-being, note, 41 L. K. A. (N. S.) 564.</p> <p>Exacting bond for production of child as a condition of awarding custody to one parent as against other, note, L. K. A. 1915A, 576.</p> <p>[3] Id.—Removal of Minor from Jurisdiction—Bond—Reasonable Regulation.—An order requiring that each of the parents of a minor should give a bond conditioned that the minor should not be removed from the jurisdiction of the court is a reasonable regulation authorized by section 214 of the' Civil Code.</p>

<p>[1] Partnership—Accounting—Beeerence—Judgment.—Where in an action for the dissolution of a partnership and an accounting it was found that before a final judgment could be entered it would be necessary for the information of the court that an account be taken of the dealings and transactions between the parties and a referee was appointed for that purpose, a so-called judgment entered by the clerk without the direction of the court upon the findings of the referee was unauthorized, and the judgment rendered by the court upon the adoption of such findings was the only proper judgment.</p> <p>[2] Id.—Unauthorized Judgment—Appeal—Jurisdiction to Bender Final Judgment—Point not Available.—On an appeal from an unauthorized judgment entered by the clerk in an action for the dissolution of a partnership and an accounting, the appellant is not in a position to raise the point that the court was without jurisdiction to enter a final judgment before the property of the partnership had been sold and the assets marshaled.</p>

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

<p>[1] Appeal—Order Granting New Trial — Ground — Presumption from Record.—Where a motion for a new trial made before the amendment of 1919 to section 657 of the Code of Civil Procedure was based on different grounds, including the insufficiency of the evidence to justify the verdict, and the order granting the motion was general in its terms, it may be presumed on appeal, in the absence of any other cause appearing in the record, that the motion was granted on the ground of the insufficiency of the evidence.</p> <p>[2] New Trial—Sufficiency of Evidence — Discretion. — A trial court has a wide discretion in granting or denying a motion for a new trial on the ground of the sufficiency of the evidence, and its action is conclusive, unless there has been an abuse of discretion.</p> <p>[3] Id.—Substantial Conflict of Evidence—New Trial—Absence of Abuse of Discretion.—Where there is a substantial conflict in the evidence, the trial court will not be deemed to have abused its discretion when it has determined that the verdict or findings are against the weight of the evidence and that there should be 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>Rupert B. Turnbull, Turnbull, Heffron & Kelley and Ralph Woods Pontious for Appellants.</p>

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

<p>tl] Insurance Law—Contracts—Conditions.—Contracts of insurance are not different from other contracts, and in the absence of statutory provisions to the contrary, insurance companies have the same right as an individual to limit their liability, and to impose whatever conditions they please upon their obligations, not inconsistent with public policy.</p> <p>[2] Id.—Control of Provisions by Foreign Law.—A contract by an insurance company made in one state and executed elsewhere may, by its terms, incorporate the law of another state and make its provisions controlling upon both insurer and insured.</p> <p>[3] Id.—Construction of Policy—Foreign Laws—Validity of Contract.—The general rule is that in the absence of statutory prohi-, bition the parties may stipulate that the policy shall be construed and governed by the laws, usages, and customs of a foreign state, and such laws, usages, and customs as are applicable shall be deemed to be a part of the written contract.</p> <p>[4] Id.—Marine Policy—Constructive Total Loss—Determination by Law of England—Valid Stipulation,—A policy of marine insurance providing that the law of England shall govern in the determination of what shall constitute a constructive total loss under the policy is not violative of public policy, notwithstanding the provisions of sections 2705 and 2717 of the Civil Code, which differ from the English law as to what constitutes a constructive total loss.</p> <p>[5] Contracts—Code Provisions—Waiver.—Except where it is otherwise declared, the provisions of the Civil Code with respect to the rights and obligations of parties to contracts are subordinate to the intention of the parties when ascertained in the manner prescribed by the laws relating to the interpretation of contracts, and the benefit of such provisions may be waived, unless such waiver would be contrary to public policy.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Benjamin W. Shipman, Henry O. Wackerbarth, Jos. A. Adair and Henry E. Carter for Appellant.</p>

<p>[1] Injunction—Reinstatement o$> Water Stock as Appurtenant to Demised Land—Pleadings—Unauthorized Temporary Order Against Mortgagee.—Where in an action by a lessee to compel the lessors and the mortgagee of the demised land to reinstate and relocate certain shares of water stock as appurtenant to the land, the mortgagee by verified answer denied that the shares of stock were pledged to him, and denied that he was the purchaser of the stock or claimed to be its owner, the plaintiff was not entitled to a temporary injunction against the mortgagee.</p> <p>[2] Id.—Temporary Injunction upon Complaint—When Improper. An injunction should not be granted pendente lite upon a complaint alone where, in response thereto, a verified answer is filed explicitly and unequivocally denying the allegations of such complaint.</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>T. B. Cosgrove, City Attorney, S. J. Higgins, City Attorney, and Arthur F. H. Wright, Deputy City Attorney, for Appellants.</p>

<p>[1] Specific Performance—Pleading—Reasonableness of Contract —Adequacy of Consideration.—In an action for specific performance of a contract, it is necessary that the complaint allege facts showing that the contract is just and reasonable as to the defendant and that the consideration received for the contract is adequate, and an allegation in terms to such effect is but the statement of » conclusion.</p> <p>[2] Id.—Contract for Sale of Beal Estate—Consideration—Insufficient Complaint.—In an action for the specific performance of a contract for the sale of real estate wherein notes secured by a mortgage on the property are the only consideration for the transfer, the complaint is insufficient in the absence of any allegation of the period over which the notes are to run, the number of the notes, the manner of payment or showing as to the ability of the plaintiff to pay the same.</p> <p>[3] Id.—Adequacy of Consideration—Improvements Immaterial,— The point of time as to which the question of adequacy of consideration must relate is the time of the formation of the contract, and the fact that the plaintiff while in possession placed certain valuable improvements upon the land cannot be considered.</p> <p>[4] Appeal—Direction as to Judgment.—The appellate court cannot direct a judgment in a cause which will preclude the possible maintenance of another action by plaintiff upon a different complaint showing a meritorious cause of action.</p>

<p>[1] Mechanic’s Lien—Foreclosure—Complaint and Notice of Lien —Fatal Variance.—Where in an action for the foreclosure of a mechanic’s lien the complaint is based on an entirely differeit contract from that recited in the notice of lien, the variance is fatal.</p> <p>[2] Id.—Recovery for Extra Work—Pleading—Claim of Lien.— Where in an action for the foreclosure of a mechanic’s lien the notice of lien recites an agreement to pay the claimant a stated amount for superintending the installation of plumbing work and the complaint alleges that the identical work in part at least constitutes extra work for which it was agreed the claimant was to be paid ten per cent of the actual cost for his services, there can be no recovery for such extra work.</p>

<p>[1] Mandamus—Enforcement of Contempt Proceeding—Refusal of Secretary of Corporation to Comply With Order Permitting Inspection of Books—Record—Denial of Writ.—Where in a proceeding for a writ of mandate to compel a superior court to enforce contempt proceedings against the secretary of a corporation for refusal to permit the petitioners to inspect the books of the corporation in order that they might ascertain the names of the stockholders for the purpose of naming them as defendants in an action brought by the petitioners on their stockholder’s liability, it is not made to appear what particular matters were before the court upon the hearing of the order to show cause, but the petition merely shows that the matter came on for hearing and that the order was dismissed, the writ will be withheld.</p> <p>[2] Corporations—Action by Creditor for Eraud—Disclosure of Names of Stockholders—Jurisdiction of Court.—Where an action against a corporation and its stockholders for damages for fraud in no way involves an issue to obtain a disclosure of the names and stock holdings of the fictitiously designated defendants, ' the court has no jurisdiction to make an order requiring the corporation to ■ exhibit its books to the plaintiff for the purpose of ascertaining the true names of such stockholders and the number of shares owned by them.</p> <p>[3] Id. — Inspection of Books — Ex Parte Order. — Conceding the jurisdiction of the superior court in an action against a corporation for damages for fraud to make an order requiring the corporation to exhibit its books to the plaintiff in order that the plaintiff might ascertain the names of the stockholders and the number of shares owned by them, such an order cannot be granted on an ex parte application.</p>

<p>[1] Criminal Law—Appeal—Failure to File Brief—Lack of Oral Argument—Scope of Review.—When an appeal in a criminal action is submitted without oral argument or brief filed by either party, the appellate court is required to examine the record only so far as it may be necessary to enable the court to determine whether, in any of the proceedings of the trial, any fundamental right of the accused has been violated.</p>

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

<p>[1] Gift Causa Mortis—General Power of Attorney—Bank Deposits—Uncompleted Gift.—A power of attorney given by ’ a stepmother to her stepson immediately prior to her death which, in addition to those general clauses usual in such documents, also contained a clause reciting that it was the express wish of the stepmother that if her present illness should prove fatal she desired that her stepson should take charge of all her estate, was ineffectual to complete a. gift causa mortis of moneys in banks belonging to the stepmother, where the power was never executed to the extent of placing the funds within the stepson’s custody or control, and where, even if it had been executed, it would not have removed the moneys beyond the dominion of the alleged donor.</p> <p>1. Gift causa mortis of money on deposit in savings bank, notes, 23 Am. Rep. 451; 26 Am. Rep. 684; 48 Am. Rep. 506.</p>

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

<p>[1] Principal and Agent—Sale of Nursery Stock—Limitation of Authority to Cash Sales—Liability for Other Sales—Construction of Agency Contract.—Under a contract creating an agency for the sale of nursery stock which provided for sales for cash only, and which also provided that the agent should be personally responsible for all goods sold and bills contracted, the agent was bound, in the event of aceéptance of orders other than cash orders, to make good such orders in cash directly to the principal.</p>

<p>[1] Judgment—Appeal by Prevailing Party—Filing op Transcript op Docket in Another County—Bight op Appellant.—An appeal taken by a plaintiff from a money judgment in Ms favor does not have the effect, under section 949 of the Code of Civil Procedure, of staying proceedings upon such judgment so as either to deprive the plaintiff of the benefit of his lien acquired by the docketing of the judgment upon any property of the judgment debtor, or of the right to file for record a transcript of the docket in another county under section 674 of such code, and by so doing acquire the lien of a judgment creditor upon any property which the debtor might own in the latter county.</p> <p>[2] Appeal—Stay op Proceedings—Construction op Section 949, Code op Civil Procedure.—The stay given by section 949 of the Code of Civil Procedure in the event of appeal is effectual only as to the judgment in so far as it affects the appellant, and requires him to do something or permitting something to be done as to him.</p> <p>[3] Judgment—Filing op Transcript in Another County—Pend-ency op Appeal—Right op Redemption prom Execution Sale in Dipperent Action.—Where a plaintiff obtained a money judgment and took an appeal therefrom without executing any undertaking and pending the appeal filed a transcript of the docket of the judgment in another county, he was entitled to exercise the rights of a redemptioner given under section 701 of the Code of Civil Procedure as to property of the judgment debtor in such county which had been sold under execution in a different action.</p> <p>[4] Appeal-—Judgment upon Agreed Statement—Dipperent Conclusion by Appellate Court—Procedure—Direction por Entry op Proper Judgment.—Where an action was submitted to the trial court upon an agreed statement of facts and it was stipulated that in the event the court found that a redemption of property from an execution sale was duly made the plaintiff should be entitled to a judgment for a stated sum and no more, and the trial court found that there was no redemption, the appellate court upon a contrary finding will not order a new trial, but will reverse the judgment and remand the cause with directions to enter judgment in conformity with its finding.</p>

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

1. Necessity for knowledge by owner of viciousness of domestic animal, note, 1 Ann. Gas. 205. The facts are stated in the opinion of the court.

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

<p>APPLICATION for a Writ of Habeas Corpus to secure release from detention by a city chief of police.</p> <p>The facts are stated in the opinion of the court.</p> <p>James W. Groom, Paul W. Schenk, Frank Dominguez and Richard Kittrelle for Petitioner.</p>

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

<p>[1] Place of Trial—Proceeding fob Change—Demand in Writing. In a proceeding for a change of place of trial of a civil action, a demand in writing that the trial be had in the proper county is a necessary moving paper, and reference cannot be had to the other moving papers to supply its omission.</p> <p>[2] Affidavit of Merits—Statement of Affiant’s Case to Counsel—Insufficient Affidavit.—An affidavit of merits to the effect that the defendant has stated her case to her counsel and that he had advised her that she had a good defense is not sufficient, since a statement of her case is not a statement of the ease, but only a statement of her defense.</p>

<p>HI Attachment—Funds Collected for Transportation of Delegates •—Liability for Personal Debt of Collector.—One appointed chairman of a committee of arrangements for the transportation of delegates to a national convention has no title to money collected by him from the delegates for transportation, and it is not subject to an attachment for a personal debt of such chairman, although deposited in his own personal banking account as a matter of convenience.</p>

<p>The facts are stated in the opinion of the court.</p> <p>George Lull, City Attorney, D. S. O’Brien and Chas. S. Peery, Assistant City Attorneys, for Appellants.</p>

<p>[1] Waters and Water Eights — Appropriation — Trespass upon Private Land.—An appropriator must have lawful access to the stream before he can exercise water rights, and an appropriation cannot be initiated unlawfully by a trespass upon private land, and no rights can be obtained thereby against the land owners whose land is trespassed upon.</p> <p>[2] Id.—Eiparian Owners—Appropriation.—While the right to take water from a stream as against riparian owners may be acquired by prescription, no such right may be acquired by prescription oi by appropriation by a lower as against an upper riparian owner in the same stream.</p> <p>[3] Id. — Eights of Eiparian Owners. — All riparian owners are equally entitled to a reasonable use of the waters flowing along or through their lands.</p> <p>3. Nature of riparian rights, notes, 9 Ann, Cas. 1235; Ann. Cas. 1913E, 709; Ann. Cas. 1915C, 1026.</p>

<p>APPEAL from an order of the Superior Court of Sacramento County allowing an attorney’s fee for extraordinary services in a probate proceeding. - Charles 0. Busick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law — Perjury — Evidence — Corroborating Circumstances.—Where, in a prosecution for perjury, the state relics upon the direct testimony of one witness and corroborating circumstances, the character of corroboration necessary is like that in the case of an accomplice arising under section 1111 of the Penal Code, and such circumstances must be more than evidence tending to prove that the testimony was given and that it may or may not be false.</p> <p>[2] Id.—Testimony of Accomplice—Corroborating Circumstances. It is necessary that the evidence corroborating an accomplice shall connect or tend to connect the defendant with the commission of the crime, and it is insufficient where it merely easts a grave suspicion upon the accused.</p> <p>[3] Id.—Alleged False Testimony in Murder Trial—Insufficiency of Evidence to Sustain Verdict.—In this prosecution for perjury alleged to have been committed by a wife in the course of her testimony in the trial of her husband upon a charge of murder, the evidence is held insufficient to sustain the verdict on any of the several counts of the indictment.</p> <p>[4] Id.—Assumption of Proved Facts—Erroneous Instructions.— In such a prosecution, language in the instructions carrying the inference that the facts supporting the prosecution’s theory existed was erroneous, in view of section 19 of article VI of the constitution, which provides that judges shall not charge juries with respect to matters of fact.</p> <p>[5] Id.—Quantum of Proof—Erroneous Instruction.—In such a prosecution, a proposed instruction that no amount of corroboration will be sufficient to justify the conviction of one accused of perjury, where the testimony of the witness to be corroborated is uncertain in negativing the alleged perjurious testimony of ‘the accused, was erroneous and was properly refused. (Opinion of supreme court on denial of hearing.)</p> <p>[6] Id.—Disregard of Sympathy—Proper Instruction.—In such a prosecution, an instruction that although the jury might sympathize with those who suffer, they were bound by their oaths to administer judgment according to the law and the evidence and should not act upon their sympathies, and that mercy did not belong to them, was not erroneous. (Opinion of supreme court on denial of hearing.)</p>

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

<p>APPLICATION for a Writ of Habeas Corpus to secure release after conviction of violation of Motor Vehicle Act.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] .Negligence—Action fob, Death—Pleading—Capacity of Plaintiff.—A complaint in an action for damages for death is not obnoxious to the objection that it cannot be ascertained therefrom whether the plaintiff is suing as one of the heirs of deceased or as administrator of his estate, where the heirs of the deceased are named in the complaint and a person of plaintiff’s name is mentioned as one of such heirs.</p> <p>[2] Id.—Allegation of Heirs of Deceased.—Since an action based upon section 377 of the Code of Civil Procedure was intended by the legislature to inure exclusively to the benefit of the heirs of a person whose death has been caused by the wrongful or negligent act of another, it is necessary in the pleading of such an action by the administrator or executor to show that there are heirs of the deceased.</p> <p>[3] Id.—Sufficiency of Allegation.—While it is well directly to state in the complaint in an action by the representative of the deceased for damages for death that the heirs named therein are all the heirs, the complaint is sufficient in that particular where it at least discloses the fact that there are heirs, naming them, without specifically stating whether those so named constituted all of the heirs.</p> <p>[4] Id.—Evidence—Cure of Defective Complaint.—Assuming that a complaint for damages for wrongful death was defective in failing to state that the persons named were all of the heirs of the deceased, such defect was cured by the testimony of the plaintiff, to which no objection was made, that the persons named in the complaint were all of the heirs.</p> <p>[5] Id.—Killing by Shooting—Testimony of Wife of Deceased.—• In an action brought under section 377 of the Code of Civil Procedure for damages for the wrongful death of a person, it was not error to deny a motion to strike out the testimony of the wife of the deceased that she saw the defendant “shoot and kill” her husband, as involving the conclusion of the witness, where such statement was followed by testimony showing the manner in which the deceased was killed.</p> <p>[6] Id.—Presumption of Innocence—Applicability in Civil Cases. The presumption of innocence obtains in civil as well as in criminal cases, and when in a civil action a party is charged with crime, the evidence should be sufficient to overcome the presumption of innocence.</p> <p>[7] Id.—Inapplicability of Bule to Appellate Courts.—The rule as to the presumption of innocence is one particularly applicable to the trial court, for where there is credible evidence or evidence not inherently improbable which, to a reviewing court, appears to have justified the verdict or findings, the question whether the presumption has been overcome by the requisite degree of proof is foreclosed by the decision or verdict.</p>

<p>MOTION to dismiss an appeal.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Appeal—Judgment—Sufficiency of Evidence.—When there is evidence in the record which, if believed and accepted as true by the trial court, is sufficient to support its findings and judgment, the appellate court cannot disregard the lower court’s decision and reverse the judgment on the ground of the insufficiency of the evidence, even though the appellate court may be of the opinion that the weight of the evidence is against the finding.</p> <p>[2] Promissory Note—PAyment—Sufficiency of Evidence.—In this action to recover a deficiency after a sale of real property under a deed of trust given to secure a promissory note, the finding that the note was paid and discharged 'at the time of the conveyance of the property by defendants to plaintiff’s assignor under an arrangement had at that time is supported by the evidence.</p>

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

<p>HI Attorney and Client—Action to Set Aside Transfers—Recovery of Rentals—Pleading—Joinder of Causes of Action and Parties.—A complaint in an action by a client against her attorney setting forth allegations showing that certain transfers of interests in real property were obtained while acting as her attorney in certain litigation, that some of the property so transferred had been transferred by the attorney to the other defendants, and that the attorney had collected under the transfers certain rentals claimed by the plaintiff to be her property, is not subject to demurrer on the ground that a cause of aetiou to set aside a deed and a cause of action to recover moneys had and received had been improperly united and not separately stated, nor is it subject to demurrer for misjoinder of parties defendant because the action to recover the rentals was addressed to the attorney alone.</p> <p>[2] Id,—Evidence—Value of Property.—In such action there was no error in receiving testimony as to the value of the transferred property.</p> <p>[3] Id.—Fairness of Transaction—Failure of Proof—Effect of.— In such action the attorney may not complain because the plaintiff did not rest her case on the presumption in her favor as expressed in section 2283 of the Civil Code, where he failed to meet the burden of showing that the transfers were fair and the consideration adequate.</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>[l] Bf.al Estate Broker’s Act—Becovery op Commission—Pleading —Licensed Broker.—In an action to recover a broker’s commission for a sale of real property, the complaint is defective where it fails to allege that the plaintiff was a duly licensed broker at the time his cause of action arose, as required by section 20 of the Beal Estate Broker’s Act (Stats. 1919, p. 1252).</p> <p>Constitutionality of statute or ordinance requiring real estate broker to procure a license, note, 8 A. L. B. 424.</p>

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

<p>[1] Criminal Law—Arson—Evidence—Illicit Intercourse Between Dependant and Conpessed Accomplice—Reversible Error.—In a prosecution for the crime of arson, it was reversible error to admit evidence of acts of illicit intercourse between the defendant and a confessed accomplice, in the absence of a showing of a causal connection between such acts and the commission of the crime, since its sole and only effect was to degrade the defendant before the jury.</p> <p>[2] Id.—Testimony op Hired Detectives—Consideration by Jury-Instruction.—An instruction in a prosecution in which there is the testimony of only one detective that the testimony of hired detectives should not be disregarded solely for the reason that they have been thus employed but that their testimony should be given the same consideration as other testimony is objectionable as directing the attention of the jury to a particular witness.</p>

<p>[1] Partition — Beal and Personal Property — Pleading — Single Cause op Action—Ground op Demurrer.—In an action to secure a decree for the partition of both real and personal property, which was described in a single cause of action, objection that the complaint failed to separately state the causes of action should have been made by demurrer on the ground that several causes of action had not been separately stated as provided by subdivision 5 of section 430 of the Code of Civil Procedure, and the demurrer was properly overruled where made on the ground of misjoinder of causes of action, as provided by subdivision 2 of such section.</p> <p>[2] Id.—Decree—Failure to Include Promissory Note — Appeal — Presumption prom Becord.—A failure to include in the decree in such action a promissory note described in the complaint as being a part of the property sought to be partitioned does not create such an inconsistency as to amount to reversible error, in the absence of a showing in the record on appeal of the evidence which furnished the basis of the judgment.</p>

<p>[1] Affidavit of Merits—Leave to Amend Answer—Insufficiency. An affidavit of merits presented in support of a motion for leave to amend an answer after the granting of a motion for judgment on the pleadings is wholly insufficient to authorize the granting of relief, where made by the attorney for the defendant and nowhere ■reciting that the facts of the ease had been stated to affiant, but only stating that defendant had a good and just defense to the action.</p> <p>[2] Pleading—Goods Sold and Delivered—Denial on Information and Belief — Insufficient Answer. — An amended answer to a verified complaint in an action for goods sold and delivered denying on information and belief that the goods had been sold as alleged is insufficient to raise an issue.</p> <p>■ [3] Costs—Service and Piling of Memorandum—Appeal—Presumption.—On an appeal from a judgment which includes costs, it will be presumed, in the absence of a showing to the contrary, that a memorandum of costs was served and filed.</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 %he opinion of the court.</p>

<p>[1] Criminal Law—Burglary—Information—Charge of Larceny— Lack of Prejudice.—A defendant tried and convicted of burglary under an information charging both larceny and burglary in the same count was not prejudiced by the averment of larceny, since proof of the larceny would properly have been made in the absence of such allegation.</p> <p>[2] Id.—Entry in Night-time—Sufficiency of Evidence.—In a prosecution for burglary, evidence that a store had been entered between 6 o’clock in the evening and 7:30 .the next morning and large quantities of merchandise removed, sufficiently showed that the entry was in the night-time, although it did not demonstrate that the entry was not made during the few minutes between 6 o’clock in the evening and sunset.</p> <p>[3] Id.—Evidence—Proof of Corpus Delicti—In a prosecution for burglary, the corpus delicti was sufficiently proven to render the confession of the defendant admissible by the production of evidence showing that a store was entered between 6 o’clock in the evening and 7:30 the next morning and that defendant when arrested before daylight was wearing a coat taken from the store and that other coats were found in a room designated by the defendant to the arresting officer.</p> <p>3. Possession of stolen property as evidence of burglary, note, 19 Ann. Cas. 1281.</p> <p>[4] Id.—Confession—Voluntary Testimony on'Trial of Defendant Jointly Charged.—Where the defendant during the progress of the trial of a defendant jointly charged with the same burglary, at the request of his own counsel, who represented both defendants, was brought into court and in response to questions propounded by his counsel testified in detail to the commission of the burglary and his part in it, his testimony was voluntary and admissible in his own prosecution as a confession.</p> <p>[5] Id.—Testimony of Official Reporter — Reference to Notes.— In such prosecution, there was no error in permitting the official reporter who took down the testimony of the defendant in shorthand in the other prosecution to refresh his memory from his notes, in relating the testimony to the jury.</p> <p>[6] Id.—Information—Burglary in Night-time—Form of Verdict— Burglary in Second Degree — Request Properly Refused.— Where an information charged the commission of a burglary in the night-time, it was not error to fail to give the jury a form of verdict of burglary in the second degree, for such a verdict would have been void.</p> <p>[7] Id.—Jury—Separate Rooms for Male and Female Members.— Section 1135 of the Penal Code, as amended, requiring a separate room for female members of a jury must be read with the amendment to section 1128, which provides for separate rooms for male and female members, and when read together they are in harmony with the law that the jury must be kept together during their deliberations.</p>

<p>[1] Criminal Law—Obtaining op Money by False Pretenses—Surpiciency op Evidence.—In this prosecution under an indictment charging the defendant with having feloniously stolen and carried away money, the evidence shows that the complaining witness never parted with title to the money or made a loan thereof to defendant.</p> <p>[2] Id.-—Evidence—Parting With Title—Harmless Error. — Where in a prosecution for obtaining money by false pretenses it clearly appeared from the uneontradieted evidence that the complaining witness did not part with the title to the money, but was induced to part with the money by trickery of confidence operators, it was not prejudicial error to permit her to answer the question as to whether she at any time parted with the title.</p> <p>1. Obtaining loan as constituting crime of obtaining money by false pretenses, note, Ann. Cas. 1916C, 1158. .</p>

<p>[1] Pleading — Written Instrument in Answer — Failure to File Affidavit Provided by Section 448, Code of Civil Procedure— Avoidance of Instrument—Evidence.—While the plaintiff in an action upon a promissory note by his failure to file the affidavit prescribed by section 448 of the Code of Civil Procedure is deemed to have admitted the due execution and genuineness of an alleged mortgage set out in the answer, he is nevertheless entitled to offer any competent evidence in avoidance of the effect or operation of such instrument.</p> <p>[2] Promissory Note—Void Mortgage—Personal Action.—Where a promissory note purports to be secured by a .mortgage which in fact does not create a lien on the described property, the owner of the note is entitled to ignore the purported mortgage and bring an action to recover a personal judgment against the maker of the note.</p>

<p>[1] Divoboe—Separation by Consent — When Actionable. — Separation by consent will not give rise to a cause of action for divorce on the ground of desertion until the consent of one or the other of the parties is withdrawn, which withdrawal necessarily has to be shown by the occurrence of some act or the making of some declaration' indicating a change in the attitude of one or the other of the parties.</p> <p>[2] Id.—Willful Neglect—Separation by Consent.—A wife is not entitled to a divorce on the ground of willful neglect where she is living separate from her husband by agreement and her support by him is not stipulated in the agreement.</p> <p>' 1. Divorce as barred by separation agreement, notes, Ann. Cas. 1916C, 347, 367, 368.</p>

<p>[1] Nonprofit Corporations — Election of Officers — Balloting Through Mail—By-law—Effect of Code Amendment.—Under the amendment of 1915 to section 599 of the Civil Code, nonprofit corporations may adopt by-laws permitting the election of officers by balloting through the mail.</p> <p>[2] Id.—By-law Adopted Prior to Code Amendment—Custom and Usage—Invalidity Unaffected.—A by-law of a nonprofit corporation providing that balloting for the election of its officers should be conducted through the mail, adopted prior to the amendment of 1919 to section 599 of the Civil Code, is in conflict with section 321b of such code, which requires the election of officers to be held at a meeting of the members of the association and by ballots or votes cast by the members actually present or by proxy at such meeting, and where such by-law has not been formally adopted as such since the amendment to section 599, the fact that elections have been held by balloting through mail does not constitute an adoption of such by-law by custom and usage.</p> <p>[3] Id.—Compliance With Statutory Requirements.—Any rule or regulation adopted for the management of the business of a corporation, the control of its officers, or the right and duties of its members among themselves and between them and the corporation must conform at least substantially to the express provisions of the statutes.</p> <p>[4] Id. — Adoption of By-laws. — A by-law cannot be created or adopted by custom or usage in view of the statutory requirements that it he in writing and adopted by a formal vote of two-thirds of the members of the corporation at a meeting called and assembled, or by the written assent of two-thirds of the members.</p>

<p>[1] Irrigation District—Formation—Report op State Engineer— Setting op Hearing not Mandatory.—Under section 2 of the irrigation law, prior to recent amendment, the setting of the hearing upon the report of the state engineer, as therein provided, was not mandatory and jurisdiction to further proceed with the formation of a district was not lost, since the petition for formation constituted the basis of all proceedings and all else was evidentiary and procedural.</p> <p>[2] Id.—Recommendations op State Engineer—Time op Presentation.—Under such section, the right of the board of supervisors to proceed and modify the plans of the district was not affected by the failure of the state engineer to submit additional recommendations after making an adverse report within ninety days after the submission to him of the copy of the resolution determining the. sufficiency of the petition.</p>

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

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

<p>[1] Contract—Delivery of Fig Crop—Action for Breach—Excuse of Performance—Erroneous Instruction.—An instruction in an action for damages for breach of a written contract to deliver a crop of figs, which in effect advised the jury that the defendant was released from any obligation under the contract in consequence of the destruction of the fruit by frost or rain, involved an invasion of the exclusive province of the jury to determine the weight of the evidence, where the evidence showed that the figs were not destroyed but only damaged.</p> <p>[2] Id.—Acceptance of Damaged Figs—Erroneous Instruction.— Where under a contract of sale of a fig crop the buyers had the option to accept and pay for damaged figs or to reject them, it was error in an action for damages for failure to deliver to give an instruction which carried the implication that the buyers might receive or accept the figs and then refuse to pay for them.</p>

<p>APPLICATION for a Writ of Mandate to compel the Superior Court of Monterey County to hear and determine an application for guardianship.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Fraternal Insurance—Void By-law—Time for Proof of Death Based on Disappearance.—A by-law of a fraternal benefit society providing that proof of death of a member based on disappearance cannot be made until the full term of the member’s expectancy of life according to the National Fraternal Congress Table of Mortality has expired is not only unreasonable and violative of subdivision 26 of section 1963 of the Code of Civil Procedure, which declares that a person not heard from in seven years is presumed to be dead, but is against the weight of public policy.</p> <p>1. Validity and effect of by-laws of mutual benefit society refusing to pay benefit upon presumption of death from seven years’ absence, notes, 17 A. L. R. 418; L. R. A. 1915B, 793- L. R. A. 1917C, 1032.</p> <p>l'2] Id.—Time for Recovery on Certificate—Estoppel.—A provision in a benefit certificate that no action can or shall be maintained thereon until after the proofs of death and claimant’s right to benefits as provided for in the by-laws have been filed with 'the head clerk of the society and passed upon by the board of directors, nor unless brought within eighteen months' from the date of the death of the member, cannot be invoked to defeat recovery on a certificate based on the disappearance of the member, where the society had prompt notice of the disappearance and for ten years thereafter continued to demand and to take from the beneficiary dues and assessments required by the by-laws to keep the eertifi-. cate in force and the member in good standing.</p> <p>[3] Id.—Legal Beneficiaries—'State Law.—A beneficiary named in a fraternal benefit insurance certificate is not entitled to claim under the certificate where she is not a blood relative, legal heir, dependent, or a member of the family of the member, but only a niece by marriage, where the laws of the state under which the society was incorporated provide that payment of death benefits by fraternal benefit societies shall only be made to the families, heirs, and blood relatives, or persons dependent upon the members.</p> <p>[4] Id.—Law not Subject of Waiver.—Requirements of a state law as to the relationship of persons designated in fraternal insurance society certificates to the members cannot be waived by the society, and are not waived by the acceptance of dues and assessments from beneficiaries not within the designation.</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>[2] Appeal—Death of Attorney—Time.—The time for taking an appeal from a judgment is not extended by the death of the attorney for the appellant, since section 286 of the Code of Civil Procedure is inapplicable, as the proposed appeal was not a “proceeding” against the appellant but one against the respondent.</p> <p>[3] Id.—Preparation of Transcript—Mandamus.—A writ of mandate will not lie to compel the preparation of a clerk’s transcript where the time within which the appeal may be taken has expired.</p>

<p>[1] Criminal Law—Larceny—Corpus Delicti—Sufficiency' of Evidence.—In this prosecution for larceny, the evidence is held sufficient to establish the corpus delicti.</p> <p>[2] Id.—Corpus Delicti—Degree of Proof.—It is not required that the corpus delicti be established beyond a reasonable doubt, but it is sufficient if there is some evidence tending to establish a criminal agency as the cause of the facts forming its basis.</p> <p>[3] Id.—Larceny—Criminal Taking of Property.—In a prosecution for larceny, there must be evidence tending to show a criminal taking of the property.</p> <p>[4] Id.—Larceny of Horse—Explanation of Defendant—Evidence. In a prosecution for the larceny of a horse, the corpus delicti having been established, the court properly admitted the testimony of the marshal, who found the animal near the defendant’s camp, that the defendant had told him that another man had stolen the horse and sold it to defendant.</p> <p>[5] Id.—Recent Possession-—Circumstance of Guilt—Instruction. In such a prosecution, an instruction that the failure of the defendant to account for his possession of the property or to show that such possession was honestly obtained was a circumstance tending to show his guilt, and that defendant was bound to explain such possession in order to remove its effect as a circumstance of guilt, was not erroneous, when read with the instruction that the possession of stolen property is not sufficient standing alone, even though unexplained and unsupported, to warrant a conviction.</p> <p>[6] Instructions—Readings as a Whole.—Instructions must be read as a whole, and when so read, if they state the law correctly, no error is committed.</p> <p>[7] Criminal Law-—Instruction Warranted by Evidence.—In this prosecution for the larceny of a horse, the evidence justified the giving of an instruction as -to the unexplained possession of stolen properly as a circumstance of guilt.</p> <p>[8] Appeal—Constitutional Law—Reversal for Error.—Under section 4% of article VI of the constitution it is not sufficient to warrant a reversal to show that error has been committed, but the appellate court must be of the opinion that the error has resulted in a miscarriage of justice.</p> <p>1. Proof of corpus delicti in larceny, notes, 68 L. R. A. 33; 28 I,. R. A. (H. S.) 536; L. R. A. 1916B, 846.</p> <p>[9] Criminal Law—Burden of Proof—Instruction.—An instruction that the burden of proof is upon the prosecution to prove every element of the offense charged beyond a reasonable doubt, and the defendant is not required to produce any evidence in his own behalf, but may rely upon the weakness of the case as presented by the prosecution, and any evidence introduced by the defendant does not relieve the prosecution from the burden, nor is the defendant required to prove anything to be entitled to an acquittal, was properly refused, since the italicized portion was erroneous.</p>

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

<p>[1] Drainage Act — Protection op Subcontractors — Bond — Construction op Act op 1903.—The only authority vested in the board of supervisors to provide for the protection of materialmen and laborers as subcontractors in the matter of the construction of a storm-drain pursuant to the act of March 21, 1903 (Stats. 1903, p. 354), is thé exaction of the bond required by section 8a of such act.</p> <p>[2] Id.—Inapplicability op Mechanic’s Lien Law and Public Work Act.—The provisions of section 1183 of the Code of Civil Procedure, relating to liens of mechanics upon structures other than those of a public character, and of the act of 1897, as amended in 1915, relating to claims for public work, are not applicable to work done under the Drainage Act of 1903.</p> <p>[3] Id.—Insufficient Bonds—Failure to Comply With Requirements of Act.—A bond not running to the county, but to any and all persons performing labor or furnishing materials and not conditioned for the faithful performance of the contract, and a bond in the penal sum of one-fourth of the contract price and conditioned in accordance with the public work act of 1897, as amended in 1915, fail to comply with the requirements of section 8a of the Drainage Act of 1903, and no recovery can be had thereon by subcontractors.</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>APPB'AL from a judgment of the Superior Court of Calaveras County. J. A. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Perjury—False Testimony on Motion to Set Aside Plea to Murder Charge—Materiality.'—On the hearing of a motion for permission to withdraw a plea of guilty and to enter a plea of not guilty to a charge of murder on the grounds that the plea was induced by acts of personal violence on the part of a deputy district attorney and threats on the part of such official to turn the defendant over to a mob, false testimony of a witness that a party acting under the sheriff as an armed guard struck the defendant in the face with his fist while the defendant was handcuffed was material testimony making the witness guilty of perjury, since the issue was whether all the facts and circumstances formed a basis for such reasonable apprehension of violence as to force from defendant an involuntary plea of guilty.</p>

<p>[1] Public Health—Quarantine for Venereal Disease—Authority of Health Department.—The health department of a municipality has authority to enforce quarantine measures against a person where there is reasonable ground to believe that such person is affected with a contagious or infectious venereal disease, and in the ease of a woman of ill fame, that fact in itself affords sufficient ground for an inference of the existence of the disease.</p>

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

APPEALS from a judgment of the Superior Court of Alameda County and from an order granting a new trial. T. W. Harris, Judge. Order affirmed. The facts are stated in the opinion of the court.

<p>HI Husband and Wife — Conveyances to Husband — Conflict of Evidence—Appeal.—In an action by a wife to determine her ownership of real property conveyed to her husband for the alleged purpose of enabling him to obtain an immediate and temporary credit and upon his agreement to reconvey upon request after the credit had been obtained, the conclusions of the trial judge as to the facts must be treated as final, where the testimony of the husband that the deeds were for a valuable consideration merely presented a conflict with the plaintiff’s testimony.</p> <p>[2] Id. — Trust—¡Statute of Limitations. — Where a wife conveyed real property to her husband for the sole purpose of enabling him to obtain a credit and upon his agreement to reconvey when the credit had been obtained, she parted with only the naked legal title and the husband received the property as trustee, and the statute of limitations would not commence to run against the wife’s rights until demand for reconveyance or repudiation of the trust.</p> <p>[3] Id. — Laches — Lack of Prejudice. — In the absence of circumstances disclosing prejudice by the mere lapse of time occurring between the date of the conveyance and the date of the commencement of the action, the defense of laches was without merit.</p>

<p>[1] Appeal—Error — Duty op Appellant. — EVery intendment is in favor of the regularity of the rulings of the trial court, and since error will not he presumed it devolves upon an appellant to affirmatively show the existence thereof.</p> <p>[2] Id.—Filing op Amended Complaint—Time—Presumption prom Record.—Where an amendment to a complaint pursuant to section 472 of the Code of Civil Procedure was filed on the same day that a demurrer to the complaint was heard and a motion to dismiss the action granted, it must be assumed on appeal, in the absence of a showing to the contrary, that the filing of the amended complaint was after the trial of the issue of law on the demurrer.</p> <p>[3] Pleading—Statute op Limitations.—Unless an action is commenced against a party within the statutory period, or unless such party is by proper proceedings made a defendant by amendment prior to the expiration of such period, no judgment can be had against such defendant, unless the statute is waived.</p> <p>[4] Railroads — Governmental Control — Agent por Purposes op Suits—Waiver op Statute op Limitations—Want op Authority. The person designated by the President of the United States under the Transportation Act of 1920 as the agent against whom actions arising out of governmental control of the railroads may be brought is without express or implied authority to waive the benefit of the statute of limitations in an action brought against him in Ms representative capacity.</p> <p>[5] Negligence—Government Control of Railroad—Amendment of Complaint—Bringing in of New Party—Agent of Government —Bar of Statute of Limitations.—Where an action for personal injuries due to the negligence of a railroad company while the company was under government control was brought after the termination of such control against the Director-General of the Railroads, instead of against the agent appointed by the President, and the plaintiff did not seek to make the agent a party defendant until after the expiration of one year from the accrual of the cause of action, the action as to such agent was barred by the statute of limitations and properly dismissed.</p>

<p>[i] Stockholder’s Liability—-Promissory Notes of Corporation— Pleading—Averment of Indebtedness.—A complaint in an action by the purchaser of promissory notes of a corporation for a valuable consideration and before maturity to enforce the liability of stockholders fails to state a cause of action in the absence of an allegation as to the date on which the original indebtedness was incurred, although it contains an allegation of the date of the execution of the notes, since the liability is upon the debt and not upon the promise of the corporation as evidenced by the notes.</p>

<p>[1] Statutory Construction—Different Acts on Same Subject.— Where two statutes dealing with the same subject are not repugnant in their provisions, both should be given effect.</p> <p>[2] School Law—Issuance of Bonds—Act of 1909—Alternative Method.—The act of March 20, 1909 (Stats. 1909, p. 526), regulating the issuance of bonds of school districts in cities of the fifth class, is not repugnant to the provisions of section 1880 et seq. of the Political Code, which contain a complete scheme under which bonds of school districts may be issued, but merely provides for an alternative method, notwithstanding it provides for a higher rate of interest on the bonds and contains no provision for the insuring of buildings or that the bonds- may be payable in lawful money, as well as gold coin.</p>

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

<p>[1] Street Law—Signing of Improvement Contract—Property of Minors—Liability of Father and Guardian.—A father is liable for street improvement work done in front of lots owned by his minor children, where he is the legal guardian of their persons and estates and in signing the contract for the improvement he included the frontage of such lots as well as the frontage of an adjoining lot individually owned by him opposite his name, notwithstanding a provision of the contract making the parties thereto liable only for the work done in front of their “own property,” it appearing to have been the intention to contract with reference to both holdings.</p> <p>[2] Guardian and Ward—Improvement of Property—Credit for Expenditures—Eight of Guardian.—A guardian is entitled to credit in his account as guardian for money spent in improving and repairing the property of his wards.</p> <p>[3] Id.—Contracts of Guardian—Personal Liability.—A guardian is personally liable upon any contract made for the benefit of his ward.</p> <p>[4] Street Law — Action on Improvement Contract — Pleading — Frontage of Defendant—Sufficiency of Complaint.—In an action by a contractor on a street improvement contract, the complaint is sufficient, as against the contention that the number of feet of land owned by the defendant should have been alleged, where the contract containing the number of feet frontage for which each party intends to contract is attached to the complaint, and it is alleged that the defendant agreed to pay upon completion of the work his respective pro rata share of the cost of the improvement computed in accordance with his frontage, and that the total pro rata share amounts to a stated sum.</p> <p>1. Liability of guardian who signs contract adding words indicating representative capacity to Ms signature, note, 42 L. E. A. (N. S.) 60.</p>

<p>[1] Appeal—Waiver op Findings—Judgment—Presumption.—Where findings have been waived, the presumption on appeal is that every fact essential to the support of the judgment was proved and found by the court.</p> <p>[2] Id.—Divorce—Failure to Divide Community Property—Waiver op Findings—Presumption on Appeal.—Where in an action for divorce a division of alleged community property was asked by the wife in her cross-complaint, and findings were waived, and the court made no division, it must be presumed on appeal that there was no community property.</p> <p>[3] Id.—Conduct of Wife Before Children—Provision of Decree— Discretion.—An order in a decree of divorce restraining the wife from criticising her husband before her children or poisoning their minds against him will not be disturbed on appeal merely upon the ground that it does not appear to be necessary, since such an order is left to the sound discretion of the trial court.</p>

<p>[1] Criminal Law—Perjury—False Testimony Before Grand Jury —Nonacceptance of Bribes—Pleading—Time of Commission— Sufficiency of Indictment.—An indictment charging a defendant with perjury in falsely testifying before the grand jury that he did not accept certain bribes, which alleged that the offenses occurred “during the year 1919,” is not subject to demurrer for uncertainty for failure to specify the exact times of the commission of the offenses, where the parties paying, the amounts, and the purposes for which they were paid were set forth with sufficient particularly to inform the defendant as to what was intended and what evidence of particular acts might confront him at the trial.</p> <p>[2] Id.—Omnibus Allegation — Uncertainty. — An omnibus allegation in such an indictment that the defendant took bribes from divers persons to the grand jury unknown and did various other unlawful acts and things is indefensible, and the demurrer thereto for uncertainty should have been sustained.</p> <p>[3] Id.—Admission of Evidence Under Allegation—Insufficient Ground for Beversal—Cumulative Character.—The erroneous admission of evidence under such an allegation is not a sufficient ground for reversal where such evidence was but cumulative of other evidence which established the guilt of the defendant.</p> <p>[4] Id.—Demurrer to Counts of Indictment—Appeal—When not Beviewable.—Where the appellant in such a prosecution fails to give any reasons why his demurrer to certain counts of the indictment should have been sustained, and they are not subject to the objection urged against a different count, and to determine whether or not there is merit in his contention will necessitate an independent examination and inquiry as to the correctness of the court’s ruling, the appellate court is not required to make such inquiry and examination.</p> <p>[5] Id.—Evidence—Time of Payment of Bribe.—Where in such prosecution a witness testified that he paid the defendant money in 1918, and a bank clerk testified that the witness drew the amount from his account in February, 1919, such testimony was not to be rejected for uncertainty as to exact time when the bribe was paid.</p> <p>[6] Id.—Possession of Safe Deposit Box.—Where in such prosecution a witness testified that he withdrew an amount from his safe deposit box and paid it to the defendant, there was no error in permitting a bank clerk to testify that the witness had such a box in the vaults of the bank.</p> <p>[7] Id.—Instruction—Objection and Striking Out of Testimony.— In such prosecution, the defendant was not harmed by the refusal of the court to give an instruction relating to the right of counsel to object to the introduction of evidence, and to move to strike it out if so advised, and that the jury should disregard any testimony stricken from the record, since the major part of the instruction related to matters common to the conduct of every trial with which the jurors were already familiar, and the remaining portion was covered elsewhere in the charge.</p> <p>[8] Id.—Misconduct of District Attorney—Reference to Limited Examination of Defendant.-—In such prosecution it was error for the district, attorney 'in his argument to the jury to make reference to the limited examination of the defendant, but is not a sufficient ground for reversal, where no assignment of misconduct was made until after the argument had been concluded and the evidence clearly established the guilt of the defendant.</p>

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

<p>[2] Id.—Failure to Object to Garnishment—Lack oe Waiver.— Garnishment of funds due a creditor of a municipal corporation are not waived by failure of the municipality to object thereto, since the exemption is founded upon considerations of public policy and cannot be waived by its officers and agents.</p> <p>1. Garnishment of municipalities, note, 51 Am. St. Rep. 114.</p>

MOTION to strike from files parts of transcript on appeal from a judgment of the Superior Court of San Luis Obispo County. T. A. Norton, Judge. The facts are stated in the opinion of the court.

<p>[1] Contract—Exchange of Land — Community Property — Sufficiency of Evidence.—In this action to recover damages-for breach of a contract to exchange land, the evidence supports the finding that the property involved was the community property of defendant and his wife.</p> <p>[2] Husband and Wife—Change of Character of Property—Contract.—A husband and wife may by contract change the character of their property from community to separate, or they may transmute the separate property of either into community property.</p> <p>[3] Id.—Contract Prior to Marriage—Change of Character of Property.—Separate property of either husband or wife may be transmuted into community property by contract made prior to and in anticipation of marriage.</p> <p>[4] lb.—Statute of Frauds—Performance of Contract by One Party—OEffect of.—A contract made prior to and in anticipation of marriage transmuting separate property into community property should be in writing, but where the contract has been fully executed by one party, the case is taken out of the statute, and the same is not assailable by the parties thereto or by third parties on the ground that it was not in writing.</p> <p>[5] Contract—Exchange of Land—Action for Breach—Pleading— Bad Faith.—Where in an action for damages for breach of a contract to exchange lands bad faith is relied upon, it must be pleaded.</p> <p>[6] Id.—Insufficient Allegation of Bad Faith.—An allegation in such an action that defendant refused to perform his contract "without any just reason or excuse” is not a sufficient allegation of bad faith on the part of the defendant in not informing plaintiff that his wife had some interest in the land.</p> <p>[7] Costs—Nominal Damages.—A judgment for nominal damages does not carry costs. (Opinion of supreme court on denial of hearing.)</p> <p>[8] Appeal—Nominal Damages—Reversal.—A judgment for a defendant in an action ex contractu for damages where it is established that a plaintiff is entitled to nothing more than nominal damages will not be reversed on appeal. (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Cancellation—Written Instrument—Want of Consideration —Pleading and Evidence.—In an action based upon section 3412 of the Civil Code to cancel a written instrument on the ground of want of consideration, the existence of fraud, accident, or mistake is not required to be shown by either the pleading or the evidence.</p> <p>[2] Id.—-Essential Pacts—Construction of Code.—Section 3412 of the Civil Code clearly contemplates that any written instrument which for any reason is void or voidable and outstanding, and which by reason thereof, may result in serious injury or prejudice to the party as to whom it is void or voidable, may be, upon proper application, adjudged to be void, and ordered to be delivered up and canceled, and all that is required either in pleading or proof is to show the facts constituting the invalidity of the instrument, whether they involve fraud, duress, accident, mistake, or a promise to make a gift.</p> <p>[3] Id.—Action to Cancel Promissory Note—Want of Consideration—Sufficiency of Evidence.—In this action to cancel an outstanding promissory note, the finding that the note was made and given without a consideration and therefore involved a gift is sufficiently supported by the evidence to render it impregnable against successful attack.</p> <p>[4] Gift—Promissory Note—Unenforceable Obligation.—A gift by a party of Ms own promissory note either inter vivos or causa mortis does not create an enforceable obligation in favor of the donee against the donor or Ms estate.</p> <p>[5] Promissory Note—Want of Consideration—Statute of Limitations—Laches—Unwarranted Defenses.—The defenses of the statute of limitations or of laches cannot be invoked against the maker of an outstanding promissory note in an action for its cancellation on the ground of want of consideration.</p> <p>[6] Id.—Conduct of Maker—Absence of Estoppel.—The maker of a promissory note is not estopped from maintaimng an action to cancel the note on the ground of want of consideration by reason of the fact that she permitted it to remain unrevoked for several years, or by reason of the fact that she renewed it, or by.reason of the fact that she paid interest thereon.</p> <p>4. Note -as subject of gift by maker, notes, 26 L. E. A. 305; 7 Ii. B. A. (N. S.) 156; 27 L. B. A. (N. S.) 308; L. B. A. 19180, 340.</p>

<p>[1] Vendor and Vendee—Ownership op Fruit Trays—Exchange op Lands—Evidence—Contract.—In this action for the conversion of certain fruit trays growing out of an exchange of lands and certain personal property thereon, the finding that the trays, which were not on the land of the plaintiff at the time of the exchange but on the land of a third party, were omitted from the contract by mistake is not supported by the evidence, and the contention that the trays were a part of the exchange because they were a necessary part "of the equipment of the property is not sustained by the contract.</p> <p>[2] Appeal—Findings—Evidence.—While a finding will not be disturbed on appeal if there is a substantial conflict in the evidence from which it springs, the evidence, in order to raise a conflict, must be such as to present a fair and reasonable ground for a difference of opinion.</p> <p>[3] Contract—Reformation.—A contract which does not express the intention of the parties cannot be enforced according to their intention without first reforming it to make it express such intention.</p> <p>[4] Conversion—Pleading—Counterclaim.—Where plaintiff and defendant exchanged lands and certain personal property thereon, and plaintiff sued defendant for the conversion of certain fruit trays which he claimed were not included in the transaction and which defendant claimed were omitted by mistake, a counterclaim by defendant for reimbursement on account of the payment of past due interest on a mortgage assumed by him as a part of the exchange is unauthorized under section 438 of the Code of Civil Procedure, since the counterclaim did not arise out of the conversion, and since it sounds in contract, while the conversion sounds in tort.</p>

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

<p>[1] Constitutional Law—Presumption as to Legislative Power.— There is no implication of the absence or nonexistence of legislative authority or power and whoever would claim that the power in any instance does not exist must point out the provision of the constitution which has taken it away or forbidden its exercise.</p> <p>[2] Statutory Construction—Validity op Repealing Act.—In view of article IV, section 1, of the constitution, which vests the legislative power of the state in the legislature, and in view of the principle that the constitution is not to be considered as a grant of power, but as a restriction upon the powers of the legislature, an act repealing another act must be rendered effective unless inhibited by some express provision of the constitution or manifestly against sound public policy.</p> <p>[3] Schools—-Repeal op Act Creating District — Constitutional Law—Prohibition op Creation of Municipal Corporations by Special Laws—-Inapplicability op Provision.—The act of the legislature approved May 5, 1919, repealing the act approved March 30, 1878, creating the Courthouse School District of Sonoma County, is not inhibited by section 6, article II, of the constitution, which prohibits the creation by special laws of corporations for municipal purposes and which provides for the incorporation, organization, and classification, in proportion to population, of cities and towns, by general laws, since the direct object of the repealing act was not to create, but to dissolve and terminate, a district, and since a school district is not a municipal corporation.</p> <p>[4] Id.—Prohibition Against Passage op Special Laws—-Requirement op Open School—Provisions not Violated.—The act of the legislature approved May 5, 1919, repealing the act approved March 30, 1878, creating the Courthouse School District of Sonoma County, is not in conflict with subdivision 33, section 25, article IV, of the constitution, which prohibits the passage of special laws where a general law can be made applicable, nor is it in conflict with section 5, article IX, of the constitution, which declares that the legislature shall provide a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, since such act is not a creative or amendatory act, but a repealing act,</p> <p>[5] Id.—Act not Against Public Policy—'Status op Territory Outside Municipal Limits.—The act of the legislature approved May 5, 1919, repealing the act approved March 30, 1878, creating the Courthouse School District of Sonoma County, which district embraced what now constitutes the city of Santa Eosa and some adjacent territory outside the corporate limits thereof, was not in violation of public policy in that it left such outlying territory without any legal status as a school district, since the general law immediately became operative creating Santa Eosa School District with boundaries coextensive with the city limits and leaving the outlying territory subject to the authority of the board of supervisors as provided in subdivision 2 of section 4041 of the Political Code.</p> <p>16] Id.—Curative Acts—Validity of Eepealing Act Unaffected.— The validity of the act of 1919 repealing the act of 1878 cre.ating the Courthouse School District of Sonoma County is not affected by section 1724 of the Political Code or by the act approved March 18, 1905, curing irregularities in the formation of school districts previously organized but not creating any district or affecting the repeal of any special statutes.</p> <p>[7] Id.—Quo Warranto—Ouster of Trustees of Abolished District—Findings—Appeal.—In a quo warranto proceeding to oust the trustees of a school district which the relators claimed had been abolished by the repeal of the legislative act creating the district, the failure to find on certain special defenses set up in the answer can be of no avail to the defendants on appeal, where the findings are 'sufficient to support the judgment and the evidence is not produced.</p> <p>[8] Constitutional Law—Validity of Statute—Duty of Courts.— A court must move with great caution in declaring an act of the legislature unconstitutional, resolve all doubt in favor of its validity, and hold it unconstitutional only in cases where the act is plainly and palpably violative of the constitution.</p>

<p>[1] Employer and Employee — Wrongful Discharge — Action fob Damages—Pleading.—Where a master has wrongfully discharged a servant before the expiration of the period of the time during which the contract, by its terms, is to run, the complaint, in an action ea? delicto for damages for its breach must show by a direct averment of some character that there was" a wrongful discharge, and a statement in the complaint that the defendant has refused to permit the plaintiff to proceed with the performance of the services and has refused to pay plaintiff therefor, while sufficient to entitle the plaintiff to recover so much of his monthly compensation as may then be due, is not sufficient to show that he has been discharged.</p> <p>[2] Id.—Action Ex Contractu—Sufficiency of Complaint.—A complaint in an action cm contractu by a servant sufficiently states a cause of action for money due the plaintiff as his salary or compensation for his services under the contract and the rentals which he was required to pay for the use of a house and of water hy reason of the failure of the defendant to live up to the terms, where it alleges that defendant refused to permit to proceed with the services and refused to pay plaintiff therefor and that plaintiff was ready and willing to perform at all times.</p> <p>[3] Id.—Applicability op General Bules op Pleading.—The general rules of pleading in actions for the breach of contracts obtain in actions for the breach of contracts of employment, and the complaint contains the essential elements of a good cause of action ex contractu if it shows the making of the contract between the parties and alleges the amount of damages resulting from its breach.</p> <p>[4] Id.—Diminishment op Damage—Pleading.—The earning and receipt of compensation by a servant for services performed for other persons after his wrongful discharge or after he has been prevented by the master from performing the services under the contract of employment constitutes an element in the measure of damages, for it is the duty of a servant wrongfully discharged to seek other employment and diminish the damage, but the same is a matter of defense, and the plaintiff is not required to plead it.</p> <p>4. Other employment in mitigation or reduction of damages for wrongful discharge of servant, note, 6 L. R. A. (ST. S.) 94.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.</p> <p>The facts are stated in Peterson v. Wagner, ante, p. 1.</p>

<p>Mortgage —■ Foreclosure —• Satisfaction of Deficiency.—Judgment affirmed upon the authority of Hose et al. v. Gonlin, ante, p. 225, [198 Pac. 653],</p>

<p>Mortgage — Foreclosure — Deficiency.—Judgment affirmed upon the authority of Hose et al. v. Conlin, ante, p. 225, [198 Pac. 653],</p>

<p>[l] Nonprofit Corporations—Election of Officers—Balloting by Mail—Invalid By-law.—Judgment reversed on the authority of Powers v. Marine Engineers’ Beneficial Assn., etc., et al., ante, p. 551.</p>

<p>APPLICATION for a Writ of Habeas Corpus to secure release under a commitment to answer for perjury.</p> <p>The facts are stated in the opinion In re Braynard, etc., ante, p. 631.</p>