Volume 56 — California Appellate Reports

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

<p>[1] Mandamus—Kefeal op Ordinance—Fraud.—A writ of mandate will not issue to compel the directors of an irrigation district to pass an ordinance repealing an ordinance passed with a fraudulent intent to accomplish an unlawful object.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Mateo County. Benjamin K. Knight, Judge Presiding. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEALS from a judgment of the Superior Court of Los Angeles County. L. H. Valentine, Judge. Modified and affirmed.</p> <p>The facts are- stated in the opinion of the court.</p>

<p>[1] Parent and Child — Deprivation op Custody — Essentials. — Parents are the natural guardians of their children and cannot be deprived of their eare and custody except by a proceeding to which they are parties, and in which it must be shown, that they are unfit or unwilling or unable to perform their parental duties.</p>

<p>[l] Mechanics' Liens—Release of Nonenforceable Lien—Payment by Owner—Recovery from Surety.—Under a building contract providing that the contractor, on or before thirty-five days after the acceptance of the building, shall cancel and release the building and premises from all claims that may have accrued against the building, the owner cannot recover on the bond an amount paid to obtain the release of a lien, where such lien was not an enforceable claim for the reason that the bond and contract were both recorded and the owner had paid to the contractor before the recording of the notice of completion sums of money that aggregated the full amount of the contract price.</p>

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

<p>[1] Chattel Mortgage — Default—Seizure by Mortgagee — Sale Within Reasonable Time.—A mortgagee of personal property who takes possession of the property according to the terms of the instrument but who neglects to sell it within a reasonable time is liable for its conversion.</p> <p>[2] Conversion—Seizure of Mortgaged Cattle—Default of Mortgagor—Time for Preparation for Sale—Pleading—Insufficiency of Affirmative Defense.—In an action by a mortgagor for the conversion of mortgaged cattle seized by the mortgagee under the terms of the mortgage giving it the power of seizure upon default, the affirmative defense that the mortgagee was entitled to such time after the seizure as might be necessary to fatten and render the cattle marketable, which at the time of seizure were in a dying condition, was not made out where it was not shown what was done with the cattle or what was their condition for a period of five and one-half months, or what was their condition at the end of such period.</p> <p>[3] Id.—Payment of Mortgage—Tender of Cattle—Insufficient Pleading of Tender.—An allegation in the answer in such action that after payment of the obligation secured by the mortgage the defendant tendered “the cattle remaining” in its hands to the plaintiff is not a sufficient allegation of tender, where the number remaining is not alleged, or their condition, or the reason for a diminution of the herd.</p> <p>[4] Id.—Retention of 'Cattle After Seizure Without Sale—Unreasonable Time—Evidence.—In this action for the conversion of mortgaged cattle, the evidence is insufficient to show a justification of the retention of the cattle for the period of five months after seizure without sale.</p> <p>[5] Id.—Right of Possession — Prejudicial Instruction.—An instruction that if it were found that the note was unpaid at the time of seizure of the cattle and that the mortgage gave the defendant the right to take possession in ease of default, the mortgagee had the right of possession against the mortgagor, whs prejudicially erroneous.</p> <p>[6] Id.—Demand—When not Necessary.—While it is the general rule that a demand is necessary to a charge of conversion, it is not required where it would be unavailing.</p>

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

<p>[1] Default — Application for Belief — Sunning of Time.—The clerk’s entry of the default and not the entry of the judgment by the court fixes the beginning of the six-month period within which an application for relief under section 473 of the Code of Civil Procedure must be made.</p> <p>[2] Appeal—Decision of Supreme Court—Effect of.—-A decision of the supreme court that has never been overruled or modified must be followed by the district court of appeal.</p>

<p>[1] Workmen’s Compensation Act—Death of Employee—Gross Negligence—Action at Law—Dependent Mother.—The dependent mother of an employee whose death was due to injuries received in the course of his employment is not entitled under the Workmen’s Compensation Act to bring an action at law for damages for his death upon the theory that the injury was the result of gross negligence on the part of the employer, since section 12 of such act restricts the right of action to the injured employee.</p> <p>[2] Id.—Action for Death from Wrongful Act—Code Provision Superseded.—Section 376 of the Code of Civil Procedure, which provides that a father or, in case of his death or desertion of his family, the mother may maintain an action for the injury or death of a, minor child caused by the wrongful act or neglect of another, must he read and construed in the light of subsequent legislation embodied in the Workmen’s Compensation Act, section 12 of which provides that recovery pursuant to the provisions of the act shall he the exclusive remedy against an employer for the death of an employee in those eases where the conditions of compensation specified therein exist.</p> <p>[3] Id.—Action for Death of Minor Employee—Pleading—Insufficient Complaint.—Where the complaint in an action by a dependent mother for the death of her minor son shows the existence of the relation of employer and employee, and that at the time of the injury the deceased was performing service growing out of and incidental to his employment, and that such service was the proximate cause of the injury, no cause of action is stated, in the absence of an allegation showing the employment to have been within .the excepted classes of labor contained in section 14 of the Workmen’s Compensation Act.</p> <p>[4] Pleading — Statutory Actions — Compliance With Requirements.—In statutory actions the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in the 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>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco and from an order striking out items from cost bill. George A. Sturtevant, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>[1] Ceiminal Law—Murker—Suehciency or Evidence.—In this prosecution under an indictment charging the defendant and two others with the crime of murder, the evidence sufficiently" shows that the defendant was a copaxtieipant and an accomplice of the person who did the actual killing.</p>

<p>[1] Divorce — Default—Refusal to Vacate — Discretion not Abused.—The setting aside of a default in an action for divorce is not warranted upon the mere showing that in failing to answer the defendant relied upon a stipulation with the plaintiff regarding the custody of one of their children and upon the belief that a decree would be entered in conformity therewith, which stipulation the court refused to accept.</p> <p>[2] Id.—Custody of Children—Stipulation of Parties—Right of Court.—While parents have a legal right to contract with each other as to the custody and control of their offspring, the right to so stipulate is subject to the control of the court in which a divorce action is pending.</p> <p>[3] Id.—Scope of Stipulation.—Where the welfare of children is involved as it is in divorce eases, parents cannot by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires.</p> <p>[4] Default—Application to Vacate—Discretion—Appeal.—An application to set aside a default is addressed to the sound discretion of the trial court, and where no abuse is shown, its action will not be disturbed.</p>

<p>[1] Rescission—Contbact—Misrepresentation of Law—Exception. Conceding that a bare misrepresentation of law is not ordinarily sufficient to entitle a party to rescind a contract or conveyance, the rule may fail in its application where the misrepresentation of law includes as part thereof a misrepresentation concerning a matter of fact closely connected therewith.</p> <p>[2] Id.—Mistake of Law—When Ground for Rescission.—A mistake of law may be a sufficient ground for setting aside a contract where there is a misrepresentation of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.</p> <p>[3] Id.—Procuring of Oil Lease—Misrepresentation as to Sinking of Wells—Right of Rescission.—The procuring of a lease of land for the purpose of obtaining oil therefrom upon the misrepresentation that the sinking of an oil well within three hundred feet of a well already started is illegal is a ground for rescission, where the misrepresentation was made with knowledge of its falsity and the lessee was ignorant thereof.</p> <p>[4] Laches—Pleading and Evidence.—Laches is a defense and not a condition of relief, and if it does not appear on the face of the complaint it must be affirmatively pleaded and proven.</p>

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

<p>[1] Public Lands — Survey or — Power or Land Department to Change Status.—After public lands had been surveyed under the authority of the United States government, no declaration of the officers of the land department could operate to place them in the category of unsurveyed lands; neither can the land department convey or refuse to convey public lands in disregard or in defiance of congressional enactment.</p> <p>[2] Id.—Approval of Plat—Necessity fob—Date of Survey.—Until the plat of a survey has been approved by the United States surveyor-general there is no official survey, the date of the department’s approval of the plat being treated as the date of the survey.</p> <p>[3] Id.—Resurvey of Land—- Description in Application — Reference to Original Survey.—Where, pending the resurvey of desert lands, but prior to the approval of the plat thereof, a desert land-application is made, it must be assumed, in the absence of anything in the application indicating a contrary intention, that the description therein contained was intended to refer to the original survey, as required by the instructions promulgated by the commissioner of the general land office relating to such land.</p> <p>[4] Id.—Erroneous Issuance of Patent—Action to Declare Trust— Burden of Proof.—One claiming that a patent to desert land was erroneously issued to another, by reason of certain alleged erroneous legal conclusions on the part of the land department, and- seeking to charge the patentee as trustee of the legal title for his benefit, must succeed, not upon the weakness of his adversary’s title, but upon the strength of his own; and unless he shows affirmatively that he is entitled to the land, he cannot prevail.</p> <p>[5] Id.—Rejection of Application—Appeal—Protection from Intervention.—If a desert land application is improperly rejected by the local land -officers, the applicant’s appeal to the commissioner of the general land office operates to protect him from the intervention of any subsequent entry pending such appeal; but if such application is properly rejected by the local land officers, so that no inceptive right is initiated thereby, an appeal from their ruling will not affect the right of another to make application to enter the land.</p> <p>[6] Id.—Withdrawal of Application — Dismissal of Appeal — Effect of.—Where, after taking an appeal from the ruling of the local land officers, an applicant voluntarily withdraws his first application, and asks that his appeal be dismissed, the decision of the local land officers becomes final, the same as if no appeal had been taken, the appellate jurisdiction of the commissioner ceases, and any claim initiated by the original rejected application is abated.</p> <p>[7] Id.—Allowance of Application Pending Appeal — Right to Challenge.—Plaintiff’s original application, which was rejected by the local land- officers, having initiated no inceptive right to the property in controversy, he is in no position to challenge the action of the land department allowing defendant’s application to enter the land prior to the dismissal of .plaintiff’s appeal-plaintiff having been a stranger to the title at that time.</p> <p>[8] Id.—Rejection of Application to Covered Lands—Absence of Inceptive Right.—The lands described in plaintiff’s original application—if the descriptions therein he tied to the original government survey, which was the only official survey then in existence—having been covered .by uneaneeled entries that previously had been allowed by the local laud office, such original application initiated no inceptive right, and such application was properly rejected.</p> <p>[9] Id.—Reference of Pending Survey—Violation of Land Department Regulation.—If it was plaintiff’s intention to describe the land according to the resurvey that then was1 in progress, his application was in violation of the then existing department regulation that all applications to make desert land entries of any of the lands that were to be resurveyed “must describe the land with reference to the established lines of the original survey,” and such application created no inceptive right in plaintiff.</p> <p>[10] Id.—Regulations of Land Department — Power to Make.— The land department may make any regulation, not inconsistent with the law, which is suitable to the execution of the land system with which Congress has intrusted it.</p> <p>[11] Id.—Description by Reference to Original Survey—Reasonable Regulation.—The regulation of the land department requiring the lands to be described with reference to the established lines of the original survey, pending the completion of the new survey, was a reasonable and suitable regulation, in harmony with the statutes, and as such it had all the force of law.</p> <p>[12] Id.—Reference of Prior Void Application—Date of Creation of Inceptive Right.—Plaintiff’s original application having been properly rejected by the local land officers, he could not tie a second application upon his first, and, by so doing, create an inceptive right to the land as of the date of the filing of the first application.</p> <p>[13] Id.—Right of Preference—Commencement of Work of Reclaiming—What Required.-—To entitle .plaintiff to a preference under the act of March 28, 1908, which was amendatory of the “Desert Land Act,” approved March 3, 1877, it was not sufficient to show that he took possession of the land and subjected it to his dominion, but it -was necessary for him to show that “prior” to the resurvey he took possession of the land and commenced the work of conducting water upon the same.</p> <p>[14] Id.—Effect of Relinquishment — Preference Rights not Transferred.—A relinquishment is hut a release to the United States government of the claim of the entrymanj therefore, any work done by an entryman, even though it he such as to constitute the commencement of work of conducting water upon the land, will not, upon the execution of a relinquishment by such entry-man, inure to the benefit of a succeeding entryman, even though the latter has paid the former to execute such relinquishment and vacate the premises.</p> <p>[15] Ld.—Marking of Corners—Posting of Notice of Intention to Reclaim—Absence of Preference Right.—The placing by plaintiff of redwood posts at the corners of desert land in controversy, with notices thereon that plaintiff intended to reclaim the land from its desert state, may have constituted an act of possession, but such conduct did not constitute the commencement of the work of reclaiming the land by conducting water thereon, as required by the amendment of March 28, 1908, to the “Desert Land Act.”</p> <p>[16] Id.—Reclamation Work on Private Land—Preference Right to Adjoining Public Land not 'Created.—Lands originally public cease to be public when they have been entered at the land office; and work of reclaiming land that, by reason of entry, has taken the character of private property, by conducting water thereon, cannot be treated as reclamation work done upon adjoining public land so as to create a preference right to the latter laud under the amendment of March 28, 1908, to the “Desert Land Act.”</p> <p>[17] Id.—Performance of Work After Survey—Absence of Preference Right.—The work done upon the land by plaintiff “after” the approval of the plat of the resurvey gave him no preference right under the act of March. 28, 1908, amending the “Desert Land Act,” approved March 3, 1877.</p> <p>[18] Id.—Knowledge of Possession and Doing of Work—Estoppel to Make Application.—The fact that defendant knew plaintiff was in possession of the land in controversy and had dine work thereon did not estop defendant from making application to enter the land, where such application was filed prior to the filing by plaintiff of any application creating any inceptive right to the land and the work done by plaintiff was not such as to give him a preference right under the act of March 28, 1908, amending the “Desert Land Act,” approved March 3, 1877.</p>

<p>[1] Cancellation op Option—Pleading—Want op Consideration— Fraud—Joinder—Separate Counts.—In an action brought under section 3412 of the Civil Code to cancel an option for the sale of real property, the complaint may contain a count for cancellation on the ground of want of consideration and one for such relief on the ground of fraud.</p> <p>[2] Option — Purchase op Mining Property — Construction op Instrument—Revocation.—A written agreement giving an option to purchase mining property for a certain sum payable in installments as therein specified is a nudum pactum where no consideration is paid therefor and the optionee is not obligated to do anything whatever under the terms of the agreement, and the optioner may at any time before payment on the price or before the commencement of development work revoke the instrument.</p>

<p>PROCEEDING on Habeas Corpus to secure release from custody under charge of insanity. 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] Workmen’s -Compensation) Act — Claim for Compensation-Eight of Action Against Third Party.—Under the Workmen’s Compensation Act of 1917, the claim of an employee for compensation does not affect his right of action for damages arising out of injury against any person othéf than the employer.</p> <p>[2] Id.—Action by Employee Against Negligent Third Party — Notice to Employer—Appeal from Judgment—Presumption.—On appeal from a judgment in an action by an employee who has received compensation under the Workmen’s Compensation Act against a negligent third -party, it must be assumed, in the absence of some affirmative showing to the contrary, that plaintiff notified his employer or his insurance carrier in writing, by personal service or by registered mail, of the fact that he had brought the action, as required by section 26 of such act.</p> <p>[3] Id.—Notice of Employee’s Action—Nonessential Element.— The notice to the employer, or to Ms insurance carrier, of the bringing of an action by an employee against a negligent third party as provided by section 26 of the Workmen’s Compensation Act is not an essential ingredient of the employee’s cause of action.</p> <p>1. Bight to and effect of election with respect to acceptance of provisions of Workmen’s Compensation Act, notes, Ann. Cas. 1915C, 308; Ann. Cas. 1918A, 700; Ann. Cas. 1918B, 715.</p>

<p>[1] Mortgage—Condemnation of Part of Property—Payment of Award — Subsequent Foreclosure — Extent of Estoppel.—A mortgagee is estopped from foreclosing the mortgage against a part of the property which has been condemned for public purposes, w^ere the decree in the condemnation action has become final before the decree of foreclosure and the mortgagee has accepted the amount of the award for his interest in the condemned portion, -but he is not estopped from foreclosing against the remainder of the property, although he appeared in the condemnation suit and set up his mortgage.</p> <p>[2] Id.—Payment of Interest — Condemnation Proceeding — Duty of Mortgagor.—A mortgagor is not excused from making payments of interest as provided by the mortgage by reason of the pendency of an action to condemn a part of the property for a public use.</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—Settlement of Account and Distribution—Notice of Hearing.—No legal duty rests upon an administrator to give any other notice of the hearing of the settlement of Ms final account and petition for distribution of the estate than that required by the statute.</p> <p>[2] Id.—-Unpaid -Claim—False Representations of Administrator— Distribution—Relief—Pleading and Evidence.—Where an administrator fails to include in his final account the balance due on an allowed claim and represents to the court that all claims have been paid, and the order and decree has become final, the claimant must allege and prove extrinsic fraud to obtain relief against the distributees.</p> <p>[3] Id.—Settlement of Account and Distribution—Promise of Administrator to Claimant—Nature of.-—The promise of an administrator to notify a claimant personally of the time set for hearing the final account and petition for distribution is persona] rather than representative, and the failure to keep it does not make it fraudulent unless made without intention to perform.</p> <p>[4] Id.—False Representations — Payment of Claims — Intrinsic Fraud.—The failure of an administrator to include a claim against the estate in Ms final account and his representation to the court that all claims have been paid does not constitute extrinsic fraud.</p>

<p>[1] Specific Performance—Contract for Sale of Land—Assumption of Vendor’s Contract—Uncertainty as to Payments— Effect of.—A contract for the sale of land providing that in part payment the purchaser is to assume a prior contract for the purchase of the land made by his vendor with a third party cannot be specifically enforced by the purchaser where the assumed contract is uncertain as to the times when the purchaser is to pay the installments called for therein.</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] Sale—Dried Apricots—Contract With Operators op Drying Plant—Executory Agreement—Absence op Warranty.—A contract relating to the sale of dried apricots executed by the operators of a drying plant, who were not growers of fruit, Which was prepared by the buyers by filling in the spaces in a printed blank form of contract adapted for use in buying fruit from growers, and which provided for the sale of “all of the crop of fruit of the character hereinafter specified, grown or to be grown during the current year on the place known as Beales & Kimball dryer in Los Angeles County, California, about one mile from Van Nuys,” and that the estimated quantity of fruit sold was seventy-five to one hundred tons, was not an agreement to sell between seventy-five and one hundred tons of dried apricots, and the estimation of the amount was not a warranty, but it was an agreement to sell the entire output of the dryer during the year whatever such output might prove to be.</p> <p>[2] Id.—Sale—Agreement op Sale—Passing op Title.—The fundamental difference between a sale, properly so called, and an agreement to sell, is that in the former the title passes when the contract is made while in the latter it does not pass until later.</p> <p>[3] Id.—Subject Matter op Executed Sale.—There can be no valid executed sale unless the thing sold actually exists and is in the possession of or under the control of the seller, or is to come out of something that is in the seller’s possession or under his control.</p>

<p>[1] Breach op Promise—Pleading—Evidence—Date of Promise.— Under a complaint in an action for breach of promise of marriage which alleged that “on or about’’ a stated date the parties were unmarried persons, and that “on said date” the promise was made, the plaintiff was not required to prove the making of the promise on the exact date alleged, since the allegation as to time was not material provided the proof brought it within the statutory period.</p>

<p>[1] Gifts—Elements.—The elements essential to constitute a valid gift are an intention to give, and the delivery, either actually or symbolically, of the thing intended to be given.</p> <p>[2] Id.—Death of Donor — Subsequent Assertion of Gift — Evidence.—Where a gift is not asserted until after the death of the donor, every element necessary to constitute the gift must be sustained by explicit and convincing evidence.</p> <p>[3] Id.—Savings Bank Deposit—Insufficient Evidence of Gift.— A gift of money on deposit in a savings bank is not established after the deaths of both the alleged donor and donee, notwithstanding the pass-book was found among the effects of the donee, where it was shown that subsequent to the alleged delivery of the book, the donor on two occasions personally presented the book at -the bank and withdrew money from Ms account and that the donee made no claim upon the bank until a month after the death of the donor arid over two years subsequent to the date of the alleged gift.</p> <p>3. What amounts to gift of money on deposit in bank, note, 23 Am. Rep. 451.</p>

<p>[1] Claim and Delivery—Property in Custodia Legis—Liability to Execution.—Personal property taken in an action upon claim and delivery and thereafter delivered to the plaintiff therein under the provisions of section 514 of the -Code of Civil Procedure remains in custodia, legis after its delivery by the officer executing the process to the plaintiff so as not to be subject to a writ of execution issued on behalf of and at the instance of the plaintiff on the original attachment suit which preceded and compelled the replevin suit, or issued or sought to be levied for the enforcement of a judgment obtained either in that original action or in any subsequent action by the same plaintiff for the enforcement of the same obligation.</p> <p>[2] Id.—Seizure of Replevied Property—Mandamus—Assignment of Interest—Effect of.—A plaintiff in a claim and delivery action to whom personal property is delivered upon giving the required bond may compel the redelivery of such property taken from him under a writ of execution issued at the instance of a creditor of the defendant in the claim and delivery action, even though such plaintiff has parted with all his right, title, and interest in and to said property, since the plaintiff still has a sufficient interest in the mandamus proceeding for the protection of his replevin bond.</p> <p>[3] Id.—Assignment of Interest in Replevied Property—Seizure Under Execution—Mandamus to Compel Redelivery—Right of Assignor.—A plaintiff in a claim and delivery action to whom personal property is delivered upon giving the required bond may compel the redelivery of such property taken from him under a writ of execution issued at the instance of a creditor of the defendant in the claim and delivery action, even though such plaintiff has parted with all his title in the property, since section 385 of the Code of Civil Procedure permits the continuance of an action in the name of the original party after an assignment of interest.</p>

<p>[1] Mechanics’ Liens — Foreclosure — Pleading — Deficiencies in Performance—Waiver.-—Where, in an action for the foreclosure of a mechanic’s lien for -a balance due for services in superintending the construction of a building, the plaintiff made no objection either by demurrer or otherwise to the form in which the defendant tendered 'the issue as to various 'alleged deficiencies in the performance of the contract, nor to the presentation of his proofs regarding such issue, objection both to the form of pleading and substance of proof thereof was waived, and no separate or express pleading by way of setoff or counterclaim was required.</p> <p>[2] Id.—Cost of Building—Finding—Evidence.—Where, in an action for the foreclosure of a lien for a balance due for services in superintending the construction of a building estimated on a percentage basis, evidence was without objection presented by both parties upon the subject of the cost of the building and the finding which the court made was justified by the evidence, the judgment will not be reversed because of a variance with the strict averments and admissions of the pleadings.</p>

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

<p>[1] Appeal—Judgment—Record—Absence of Bill of Exceptions— Presumption.—An appeal from -a judgment must be deemed to be one on the judgment-roll alone, where no bill of exceptions is presented.</p> <p>[2] Id.—Judgment for Foreclosure — Minute Entry for Lesser Amount—Effect of—Record—Appeal Without Merit.—An appeal from a judgment in an action for the foreclosure of a mortgage based on the claim that the trial court was bound by the minute entry of the judgment, which was for a lesser amount, is without merit, where no bill of exceptions is presented, since sueh entry is no part of the judgment-roll.</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] Prisons—Credits for Good Behavior—Matter for Determination of Board of Directors—Indeterminate Sentence Law.— Under the indeterminate sentence law, the matter of the good behavior of a prisoner and the recognition to be given to such conduct becomes a matter of consideration and affirmative action by the prison board in each particular case.</p> <p>[2] Id.—Habeas Corpus—Alleged Illegal Forfeiture of Credits— Insufficient Petition.—A petition by an inmate of the state prison for a writ of habeas corpus, based upon the ground that' by virtue of credits earned he was entitled to his discharge, and that he was not given due or any notice of the action of the board of prison directors in forfeiting his credits, nor any opportunity to be heard upon that matter, is defective, where it does not appear therefrom that the board by any act ever accorded the petitioner any credits whatsoever for good conduct.</p>

<p>[1] Contract—Highway Construction—Action for Balance Due— ■Performance—Finding—Evidence.—In this action to recover a balance due for county highway construction, the finding that the work was done in accordance with the contract is supported by the evidence, which shows that the work was completed not only to the satisfaction of the representative of the county, but in substantial compliance with the terms of the contract.</p> <p>[2] Evidence—View of Premises-—Knowledge Gained.—Knowledge gained by the court from a view of the premises is independent evidence to be taken into consideration in determining the issues of a case.</p> <p>[3] Contract — Highway Construction — Conclusive Effect of Final Certificate.—A provision in a contract for county highway construction that no certificate except the final certificate of final payment shall be conclusive evidence of the performance of the contract against any claim of the county is not conclusive evidence against the contractor as to the amount and value of the work, but is conclusive against the county.</p> <p>[4] Id.—Certificate of County Surveyor—Impeachment for Fraud The final certificate of a county surveyor as to amount and value of the work done by a contractor in highway construction may be impeached for fraud or for gross mistake amounting to fraud.</p> <p>[5] Account Stated —'Conclusive Effect.—A stated account is prima facie evidence only of the accuracy and correctness of the charges stated therein, and a mere "admission that the account is correct, but is not an estoppel, and the account is still open to impeachment for fraud, mistake, or error unless the position of the opposite party has been altered to his prejudice.</p> <p>[6] lb.—Items not Barred.—An account stated does not bar a recovery for items not within the contemplation of the parties when the settlement was made, nor items omitted by mistake.</p> <p>[7] Contract — Action for Balance Due for Highway Construction—Account Stated—Pleading.—In an action to recover a balance due for county highway construction, the trial court was justified in ignoring the contention that a settlement made with the county engineer and the presentation of the claims and their allowance constituted a stated account, where the action was brought and defended upon the original contract and an account stated was not pleaded in the answer.</p> <p>3. Presumption of correctness of account stated, note, 136 Am. St. Hep. 37.</p>

<p>[1] Criminal Law—Kidnaping—Robbery—Sufficiency of Evidence. In this prosecution under an information charging the defendant in separate counts with the crimes of kidnaping and robbery, the evidence is sufficient to sustain the verdict as to either crime.</p> <p>[2] Id.—Information — Different Offenses.—An information may charge two or more different offenses connected together in their commission, or different statements of the same offense.</p>

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

<p>[1] Pleading—Cross-complaint—When Permissible.—A cross-complaint is permissible in an action only when a defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates.</p> <p>[2] Id.—Quieting Title — Affirmative Belief — Property Other Than Described in Complaint..—A cross-complaint does not “affect” the property to which an action relates within the meaning of section 442 of the Code of Civil Procedure when it seeks affirmative relief concerning a single and indivisible parcel of land which includes within its boundaries a lesser tract, which lesser tract is the subject of the action as shown by the allegations of the complaint.</p> <p>[3] Id.—Belief—Insufficiency of Cross-complaint.—A proper case for a cross-complaint is not shown in an action to quiet title where the pleading fails to bring the property described in the complaint within the range of the relief asked by the cross-complaint.</p> <p>3. Bight to affirmative relief on cross-bill in action to quiet title, note, Ann. Cas. 1917D, 674.</p>

<p>[1] Criminal Law — Perjury ■—False Testimony in Damage Action—Materiality.—False testimony given by the husband in an action for damages for personal injuries to the wife on the material issue as whether she was able to perform her household duties after the accident in which the injuries were received forms a sufficient basis for a charge of perjury.</p> <p>[2] Id.—Bule as to Materiality op Testimony.—The matter sworn to need not be directly and immediately material, but it is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise.</p> <p>[3] Id.—Perjury of Husband—Action for Personal Injuries to Wife—Evidence—Negation of Testimony.—In a prosecution of a husband for false testimony given in an action for personal injuries to the wife on the issue as to whether the plaintiff was able to perform her domestic duties after the injuries, the prosecution was not required to prove that the wife did not actually need a nurse.</p> <p>[4] Id.—Instruction—Reading of Indictment.—Where in a prosecution for perjury the jury was specifically instructed that the indictment did not constitute any evidence of guilt and that no juror should permit himself to be influenced by it, it was not error to read the indictment in an instruction stating the charge.</p> <p>1. Indictments for perjury, note, 124 Ann St. Rep. 654,</p> <p>[5] Id.—Materiality of Testimony—Determination Unaffected by Instruction.—In a prosecution for perjury, the reading of the indictment in an instruction is not to be taken as having the effect of leaving to the jury the determination of the materiality of the alleged perjurious matter.</p> <p>[6] Id.—Belief in Nonexistent Fact — Knowledge of Nonexistence — False Testimony.—If a witness swears willfully and falsely to a belief in the existence of a fact which does not exist and which he knows does not exist, his testimony may be made the basis of a prosecution for perjury.</p> <p>[7] Id.—Evidence—Proof of 'Crime.—Perjury must be proved by the testimony of two witnesses or one witness and corroborating circumstances.</p> <p>[8] Id.—Insufficiency of Evidence.—In this prosecution for perjury, there was not a sufficient corroboration of the charge in view of the admissions made by the main witness for the prosecution, which made her an accomplice.</p> <p>7. Number of witnesses and corroborative evidence necessary to support conviction for perjury, notes, 6 Ann. Cas. 812; 15 A. L. K. 634.</p>

<p>[1] Vendor and Vendee—Completed Contract—Evidence.—In this action to recover the purchase price of certain properties alleged to have been sold and delivered by the plaintiff to the defendant, a completed transaction is shown to have been made through the medium of the letters and telegrams and the acts of the parties and their agents done in pursuance thereof.</p> <p>[2] Id.—Payment of Taxes by Vendee—Purchase of Tax Title-Insufficient Excuse for Performance of Contract.—A vendee who under a contract to purchase is obligated to pay the taxes due on the property cannot be permitted to make use of a tax title purchased by him as an excuse for the violation of his agreement to purchase the regular chain of title from the owner thereof.</p>

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

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

<p>[lj Sales — Seed Barley — Breach oe Warranty — Knowledge oe Agent oe Buyer—Damages.—Where a ranch owner instructed his foreman to plow and plant to barley a certain acreage and to procure from the defendant from time to time as he needed it recleaned barley for that purpose, the owner, as a matter of law, was charged with the knowledge acquired by the foreman as to the character of the seed supplied, and the damage to the owner from a breach of warranty as to the quality, after knowledge of the foreman, is the difference in value between the seed as warranted and that actually delivered, and not the difference in value between the crop grown from the seed and that which would have been grown had the warranty been complied with.</p> <p>1. Warranties and conditions upon sale of seed, nursery stock, etc., notes, 16 A. L. R. 859; Ann. Cas. 1918B, 72, 96.</p>

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

PROCEEDING on application for a Writ of Mandate to compel delivery of personal property taken in an action of replevin. Dismissed. The facts are stated in the opinion of the court.

<p>[1] Public Officers—Assessor of Tehama County—Compensation— County Charter.—The provision of section 3 of article IY of the charter of the county of Tehama fixing the salary of the assessor at two thousand dollars per annum is constitutional and paramount to section 4266 of the Political Code, which fixes such salary at three thousand six hundred dollars per annum and a percentage on collected personal property taxes, and in view of section o' of article IX of such charter, it is the duty of the assessor to pay such percentage to the county treasurer.</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] Sales—Contract for Waste Resulting from Distillation of Molasses—Method of Transportation-—Evidence.-—In this action to recover damages for breach of a contract for the sale and delivery of a certain waste or residuum resulting from a distillation of molasses from which alcohol was extracted, which breach the defendant contended was justified for failure to obtain barges in conjunction with tank cars for transportation of the waste, the evidence is sufficient to support the contention that transportation was possible even with the elimination of barges.</p> <p>[2] Id.—Construction of Contract—Exclusive Method of Transportation not Provided.—Under the contract involved in this action, no exclusive method of transportation of deliveries was contemplated, and the defendant could not excuse its failure to ■perform on the ground that the use of barges involved an illegal spillage in state waters, if other means of transportation existed.</p> <p>[3] Id.—Delivery-—Duty of Seller.—Where under a contract for the sale and delivery of goods the seller has obligated itself to make deliveries, mere inconvenience or added expense is not an excuse for failure to employ any feasible or reasonable method of transportation.</p> <p>[4] Id.—Intention of Parties—Method of Delivery—Instruction. In an action for a breach of contract for the sale and delivery of -molasses waste, it was not error to refuse to submit to the jury the question as to whether or not it was the intention of the parties that the barge method of transportation was intended to be the exclusive method, in the absence of any such contention under the pleadings or at the trial.</p> <p>[5] Id.—Theory of Trial-—Instruction.—Where such action was tried upon the issue whether transportation by tank cars was possible or feasible, and not whether the contract excluded transportation by tank ears as a method of delivery, it was not error to refuse to submit to the jury the question of intention of the parties as to method of transportation.</p> <p>[6] Id.—Damages—Evidence—Resale Contracts.—In such action it was not error to admit in evidence contracts made by plaintiff" for the sale of the potash which it manufactured from the waste purchased from defendant.</p> <p>[7] Id.—Resale Contbacts—Loss of Profits—Rule—Exception.— While, in the absence of notice of a resale contract of the commodity contracted for, a buyer cannot recover, as special damages, his loss of profit on such resale, but is limited to the market price of the product, such doctrine applies only where the commodity has a fixed market price and the buyer is in a position upon breach to supply himself with the article contracted for.</p> <p>7. Measure of damages for delay in delivery of goods sold, note, 21 Ann. Cas. 607.</p>

<p>[1] Vendor and Vendee—Purchase of Real Property—Fraud—Rescission of Contract—Findings—'Conflicting Evidence—Damages.—Where in an action to rescind a contract for the purchase of a lot on the ground of alleged false representations as to boundaries it is found on conflicting evidence that the representations were made, the plaintiff is entitled to damages at least to the amount of payments made.</p> <p>[2] Id.—Representations as to Boundaries—Right oe Reliance.— One dealing with the owner of real property may assume that he knows the true boundaries and may rely on his representations to that extent.</p>

PROCEEDING on Certiorari to review an order of the Superior Court of the City and County of San Francisco, and Thomas F. Graham, Judge thereof, adjudging petitioner guilty of contempt. Affirmed. The facts are stated in the opinion of the court.

<p>[1] Police Courts—San Francisco—Jurisdiction Over High Misdemeanors.'—The city and county of San Francisco, under chapter 8 of article Y of its freeholders’ charter, having accepted the authority tendered by section 8 y2 of article XI of the state constitution, the police court of that city and county has jurisdiction to hold an examination of a person charged with a violation of the Medical Practice Act (Stats. 1913, c. 354), the punishment for which offense may be a fine of six hundred dollars or imprisonment in the county jail for six months, or both, and if the proof adduced at that examination is sufficient, to hold the accused to appear before the superior court for trial.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County entered after the sustaining of a general demurrer without leave to amend. John W. Shenk, J udge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Medical Practice Act — Sufficiency of Information.—In a prosecution for a violation of the Medical Practice Act, an information charging that the defendant on or about a given date, at a designated place within the state, “did willfully, unlawfully and feloniously practice, attempt to practice and advertise and hold himself out as practicing a system and mode of treating the sick and afflicted in the State of California, without then and there having a valid unrevoked certificate authorising him to practice a system or mode of treating the sick and afflicted in the State of California, from the State Board of Medical Examiners of the State of California,” states facts sufficient to constitute a public offense.</p> <p>[2] Id.—Diagnosis—Adjustment of Vertebra—Treatment.—It being impossible to disassociate diagnosis from the practice of the art of healing by any physical, medical, mechanical, hygienic, or surgical means, there can be no legal distinction -between “treating” a person suffering from disease or discomfort and “adjusting” the vertebra of that person in order that nature might correct the difficulty.</p> <p>[3] Id.—Use of Drugs Immaterial.—In a prosecution under the Medical Practice Act of ,1913, an information is not defective because it does not specify whether or not the defendant is charged with having used drugs.</p> <p>2. Application of statutes regulating the practice of medicine to persons giving special kinds of treatment, notes, 98 Am. St. Rep. 742; 3 L. R. A. (l'T. S.) 763; 24 L. R. A. (N. S.) 103; 25 L. R. A. (N. S.) 1297; 33 L. R. A. (N. S.) 179; L. R. A. 19170, 822.</p> <p>Chiropractic as practice of medicine, notes, Ann. Oas. 19130, 484; Ann. Cas. 1916A, 861; Ann. Cas. 1917E, 1165.</p> <p>Osteopathy as medical or surgical profession, notes, 1 Ann. Cas. 51; 7 Ann. Cas. 377.</p>

<p>[1] Criminal Law-^-Laroeny by Trick and Device—Conviction— Appeal—Prejudicial Errors—Burden of Proof.—An appellant, to be relieved from the effect of a judgment, must show not only that there was error in some step leading to its rendition, but that the error was prejudicial; and on this appeal from the judgment of conviction of larceny by trick and device, in which the appellant relied on a partial failure of proof as to the fact that the telephone instrument pretended to be used was a dummy, unconnected with wires leading to the outside world, there was no showing by appellant that without that proof there was no case made to the jury from which, properly, they might have inferred his guilt and declared it by their verdict.</p> <p>[2] Id.—Extrajudicial Misconduct of District Attorney—Motion for New Trial—Affidavits—Appeal.—Where after the hearing of a cause has been recessed and after the trial judge has left the bench, but while the courtroom contains many of the spectators to the trial and some of the members of the jury, the district attorney commits an assault upon counsel for defendant, because of a question by the latter during the course of the trial which was a reflection upon his integrity, and the only record of the occurrence is contained in affidavits presented to the trial court on a motion for a new trial, the alleged misconduct of the district attorney cannot be reviewed on an appeal from the judgment of conviction.</p> <p>[3] Id.—Character of Larceny—Evidence.—In this prosecution, in which the defendant was charged with larceny accomplished through trick and device, by means of a fake stock transaction through a fake stock broker’s office, the evidence showed that the case was not one of “straight” larceny, as contended by defendant, but one of plain bunco-steering—larceny by trick and device.</p> <p>[4] Id.—Evidence of Similar Offenses—Incompleteness of—Failure to Bequest Buhng by Trial Court—Waiver of Error.— Before a trial court can be charged with the commission of error in receiving evidence of other similar offenses, because of the incompleteness of such evidence to prove the commission of such other offenses, the trial court must be allowed the opportunity, in some appropriate fashion, as by a motion to strike, to pass upon the sufficiency of the body of the evidence claimed by the prosecuting officer to amount to adequate proof of other offenses similar in character to the one under investigation.</p> <p>[5] Id.—Larceny of Cashier’s Check — Instructions.—Where the indictment charged the larceny of lawful money of the United States, being the personal property of a certain individual, and the evidence showed that the offense of the defendant and his fellow-conspirators was the larceny of a cashier’s check, but there was no contention that the evidence failed to show that the conspirators did not convert the cashier’s check into cash, the trial court did not commit error by refusing to instruct the jury that the larceny of a cheek is not the larceny of money and that they must acquit defendant unless they found from the evidence that the check, if presented to the bank, would have been charged against the account of the owner thereof.</p> <p>3. Obtaining possession of property by trick or fraud with intent to steal as larceny, note, 8 Ann. Gas. 287.</p>

<p>APPLICATION for a Writ of Mandamus to compel the State Controller to draw his warrant in payment of a claim allowed by the State Reclamation Board. Writ granted.</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] Intoxicating Liquors—Violation of County Ordinance—Sufficiency of Information.—An information charging a defendant with the violation of a county liquor ordinance in that he, at a specified time and place, sold, furnished, and delivered intoxicating liquor, to wit, wine, contrary to the ordinance, the number and title of which are stated, contrary to the form, force, and effect of the statute in such eases made and provided, is sufficient to fully acquaint the defendant of the charge upon which he is to he tried, notwithstanding the erroneous use of the word “statute” instead of “ordinance.”</p> <p>[2] Id.—Wine—Alcoholic Content—Judicial Notice—Expert Testimony.—A court will take judicial notice of the fact that wine contains alcohol in varying quantity, and a witness partaking of the same and knowing the taste thereof is qualified to testify to its character as wine.</p> <p>[3] Id.—Maximum Prison Term—Void Judgment.—Where a county liquor ordinance provides a maximum period of imprisonment of seven months, a judgment providing for a fine of six hundred dollars, as provided by the ordinance and, in default thereof, that defendant be imprisoned in the county jail one day for each two dollars of said fine, is void in so far as it adjudges that in case of default in payment of the fine the defendant should be imprisoned for a term in excess of that fixed as a maximum penalty for the offense.</p> <p>2. Judicial notice of intoxicating character of liquors, note, 12 Am. St, Eep. 353.</p>

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

<p>[1] Broker’s Commissions—Statute of Frauds—Construction of Escrow Instructions.—Written escrow instructions by the vendor ■by which the escrow-holder is instructed, among other things, to pay a given sum as commission to certain real estate agents upon the completion of the transaction do not constitute- an agreement authorizing or employing such agents to sell the property or a written promise to pay the commission, within the meaning of subdivision 6 of. section 1624 of the Civil Code, but at most such order might be construed to be an acknowledgment of obligation on the part of the vendor to pay the stated commission out of the purchase price upon transfer of the property and payment of the consideration.</p>

<p>[1] Appeal—Presentation of Moot Question—Dismissal—Costs.— Where, by reason of events happening after the taking of an appeal, the appeal presents only a moot question, it must be dismissed, and the appellate court is not required to retain and decide the questions presented solely for the purpose of incidentally determining who shall pay the costs on appeal.</p>

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

<p>[1] 'Criminal Law—Rape—Testimony op Prosecutrix at Preliminary Examination—Erroneous Instruction.—Where in a prosecution for rape the prosecutrix testifies that she did not have sexual intercourse with the defendant, and on further examination she admits that at the preliminary examination before the committing magistrate she testified that she did in fact have intercourse with the defendant at the time and place in question, but she emphatically declares that such former testimony was not true, and there is no direct evidence of the alleged crime, but only certain circumstances from which, possibly, defendant’s guilt may be inferred, it is prejudicial error for the trial court sua sponte to specifically charge the jury that they might consider the testimony which the prosecutrix gave before the committing magistrate, without telling them that it should be considered only for the purpose of impeachment.</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] Statute of Limitations—Death of Patee of Hote—Commencement of Action Within Six Months—Absence of Finding— Want of Prejudice.—Where the evidence in an action on a promissory note shows that the payee died before the note was barred by the statute of limitations and that his representative commenced action thereon within six months after the payee’s death, although more than four years had then elapsed, the defendant is not prejudiced by the failure of the court to find on his special defense that the action was barred by the statute of limitations, as any finding thereon that the court might make would be adverse.</p> <p>[2] Id. — Substitution of Heirs as Plaintiffs — Same Cause of Action.—Such action having been instituted by the representative of the deceased payee within six months after the latter's death, under the authority of section 353 of the Code of Civil Procedure, the subsequent substitution. as parties plaintiff of the heirs of the deceased, to whom the note was distributed, did not constitute a new cause of action.</p> <p>[3] Id.—¡Counterclaim for Services—Failure to Present Claim— Incompetent Evidence.—In such action the court did not commit error in excluding evidence offered by defendant in support of his alleged counterclaim based upon services performed for the payee of the note, at his special instance and request, during the six years immediately preceding the payee’s death, where it conclusively appeared that no demand based upon such claim was presented to the administrator until long after the time specified therefor and the only evidence whereby it was sought to establish the fact of the alleged indebtedness, and which the court ruled out as incompetent, was that of defendant as to the occurrences of the transaction had between himself and the deceased.</p> <p>[4] Pleading—Gross-demands Against Estate of Deceased—Necessity for Presentation of Claim.—While under section 440 of the 'Code of Civil Procedure the right to plead a cross-demand against the estate of a deceased person is not affected by the latter’s death, nevertheless such right is subject to a compliance with the law requiring the presentation of such claim tp the executor or administrator of the estate of the deceased against which the cross-demand existed.</p>

<p>[1] Monet had and Deceived—Nature or Transaction.—-Loan and-not Stock Subscription—Evidence—Finding.—In this action to recover a certain sum of money, with interest, which plaintiff alleged under different counts of her complaint as having been, respectively, (1) loaned by her to the defendants, and (2) received by the defendants for her use and benefit, while the evidence was conflicting, there was ample evidence to justify the trial court in concluding that the transaction was one in which plaintiff loaned money to the defendant corporation, and not one in which the money was received by said defendant on account of a subscription for corporate stock.</p>

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

<p>[1] Criminal Law—Credibility op Witnesses—Province op Jury.— In a criminal prosecution, the credibility of witnesses is peculiarly within the province of the jury.</p> <p>[2] Id. — Assault With Intent to Commit Rape — Resistance by Prosecutrix—-Intent op Dependant—Evidence.—In this prosecution for assault with intent to commit rape, the jury was justified in believing from the evidence that the resistance of the prosecutrix was equally continuous and as effective as she was capable to make it, and the conduct and language of the defendant afforded ample proof of intent.</p> <p>[3] Id. — Reservation op Right op Further Cross-examination — Waiver.—Notwithstanding counsel for defendant, after having cross-examined the complaining witness, excused her, saying: “We are reserving the right to recall her for further cross-examination,” the prosecution then having re-examined and the defendant reerossexamined such witness, the prosecution then having put on other witnesses and rested, and the defendant then having introduced all of his evidence, the trial court did not commit error in sustaining the prosecution’s objection to the further cross-examination at that time of the prosecuting witness.</p> <p>[4] Id.—Impeachment op Prosecutrix—Testimony on Preliminary Examination — Argument to Jury. — The defendant having endeavored to discredit the testimony of the prosecuting witness by calling her attention to parts of her testimony given at the preliminary examination, claimed to be inconsistent with that given by her at the trial, and the district attorney then, over defendant’s objection, having questioned her as to other parts of such former testimony tending to qualify that read by counsel for defendant and make it consistent with that given by her on the stand, it was entirely proper for the district attorney, in his argument to the jury, to read some of the former testimony to which the attention of the witness had been directed while on the stand, in an effort to show that there was no inconsistency.</p> <p>[5] Id.—Good Character op Dependant—Deputation op Dependant. In a prosecution for assault with intent to commit rape, the defendant was not prejudiced by the court’s rulings sustaining objections to questions relating to his reputation for “peace and quietude” and allowing those bearing on his general reputation for “morality” and as a “law-abiding citizen.”</p> <p>[6] Id.—Several Oppenses—Election by District Attorney—Evidence.—In this prosecution for assault with intent to commit rape, the contention of defendant that the prosecution should have elected, not later than the commencement of the trial, between the assault of the afternoon and that of the evening, and having first introduced evidence tending to prove the former, was deemed to have relied on such first offense proven for conviction, was without merit, the opening statement of the district attorney having clearly indicated that the assault in the evening was the one upon which a conviction would be asked and the evidence presented having been such that neither the jury nor defendant could have believed that he was being tried for the acts committed in the afternoon, the evidences of the occurrences during the afternoon having been offered not to prove the commission of the crime at that time, but to show the relations between the parties and the conduct of the defendant, as bearing upon the intent with which he committed the later assault.</p> <p>[7] Id.—Refusal op Instructions—Lack op Error—In this prosecution for assault with intent to commit rape, the court did not commit error in refusing to give certain instructions proposed by the defendant, it having fairly instructed the jury on all the propositions of law contained therein, though not always in language so favorable to tho defendant as in those refused.</p>

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

<p>[1] Criminal Law — Pape— Sufficiency of Information — Use of Present Tense of Verb.—On appeal an information will not be held insufficient, and a judgment of conviction will not be reversed, because of the omission of the word “did” before the words “have and accomplish,” in charging that the defendant, at a specified time and place, “willfully, unlawfully and feloniously [did] have and accomplish an act of sexual intercourse” with and upon his stepdaughter, where no objection because of such omission was raised at any time in the trial court, and the jury was carefully instructed as to the statutory definition of rape and the law governing the commission of the same.</p> <p>[2] Id.—Error Without Prejudice.—An error which does not prevent a defendant of common understanding from being fully informed as to the charge against him and enabled to prepare for Ms defense is clearly not prejudicial.</p> <p>[3] Id.—Venue—Evidence.—In this prosecution for rape, the evidence was sufficient to show that the place where the offense was committed was in the city .and county in which the defendant was .prosecuted, as stated in the information.</p> <p>[4] Id.—Credibility of Prosecutrix — Corroboration Unnecessary. In this prosecution for rape, the testimony of the prosecutrix was not inherently improbable, notwithstanding the first statement she made the next day after the assault exonerated the defendant of any wrong, she having testified that the defendant coached her to tell such story; and in such a prosecution it is not necessary that the testimony of the prosecutrix be corroborated.</p> <p>[5] Id.—Accomplishment of Act—Evidence.—In this prosecution for rape, the prosecutrix, a girl of the age of fifteen years, having testified fully as to the details of the accomplishment of the act charged against the defendant, and she having also stated, in response to a question by the court, that she understood the meaning of the term “sexual intercourse” and that the defendant had accomplished it with her, the testimony regarding the consummation of the act itself was ample, notwithstanding the medical testimony was uncertain and unsatisfactory and, standing alone, might leave a doubt as to the accomplishment of the act charged.</p> <p>[6] Id.—Evidence of Other Similar Acts—Instructions—Appeal— Presumption.—In a prosecution for rape, where the trial court, on motion of counsel for the defendant, strikes from the record all testimony relating to other similar acts of the defendant with the prosecutrix and carefully and fully instructs the jury that it is not to consider such testimony and that none of those matters are a part of the record against the defendant, the appellate court will assume that the jury obeyed those instructions and will not pass upon the admissibility of such evidence.</p>

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

<p>[1] Broker’s Commission—Written Authorization—Terms—Right of Vendor to Reject Proposed Deal.—Where the written contract of employment to sell real property specifies the terms upon which the agent is authorized to sell the property, the vendor has a legal right to object to carrying out a deal which provides for the payment of a lesser amount of cash than specified in the authorization of employment.</p> <p>[2] Id.—Liability oe Husband—Acknowledgment oe Employment-^ Insueeiciency oe Writing.—-Such written authorization of employment having been signed by the wife only, hut she having refused to carry out the proposed deal on account of the terms thereof, the husband cannot be held hound to pay a commission -because he dealt with the agents with a knowledge of their employment -by his wife and of the terms of that employment, ■accepted their services and signed the escrow instructions in connection with the proposed deal in which the escrow-holder was authorized to pay the agents a given commission from the proceeds of the escrow when completed.</p> <p>[3] Id.—Ratification of Oral Authorization — Sufficiency of.— In order to make a ratification of oral authorization sufficient where a writing is originally required, the manner of authorization must he equivalent to that which would have been necessary to confer the original authority.</p> <p>[4] Id.—-Written Directions to Escrow-holder—Contract Unenforceable.—The husband not having signed the written authorization of employment of the agents, the escrow instruction signed ■ toy him in connection with the proposed deal, wherein the escrow-holder was directed to pay the agents “from proceeds of escrow when completed” a given sum as “commission,” did not furnish sufficient confirmatory evidence to establish an enforceable contract, the escrow never having been completed.</p>

<p>[1] Vendor and Vendee—Deposit of Money—Time.—-Where on a given date the vendor and vendee enter into an agreement whereby the vendee is given fifteen days within which to make payment and the next day the vendor deposits Ms deed with the escrow-holder with instructions to deliver it to the vendee upon deposit of the money within fifteen days from the latter date, the time within which the vendee may deposit the money is extended. one day; and .where the last day of such period expires on -Sunday, the time within whjeh the vendee might make payment includes the following day.</p> <p>[2] Id.-—Deposit of 'Checks as Payment—Waiver of Objection.— The vendee, within the time specified by the vendor, having deposited with the escrow-holder his checks for the money agreed to be paid and it, without objection, having accepted payment in that form, this constituted a compliance with the agreement as to payment on the part of the vendee.</p> <p>1. Inclusion or exclusion of Sunday or holiday in computation of time, notes, Ann. Cas. 1917E, 934, 949, 952.</p> <p>[3] Brokers’ Commissions—When Earned—Negotiation of Sale.— The defendant having agreed to pay plaintiffs’ commission for negotiating a sale of the property, this was accomplished when they secured a valid, binding, and enforceable contract to purchase the property from one ready, able, and willing to purchase it upon the terms exacted by defendant and with whom he was willing to and did enter into such a contract of purchase.</p> <p>[4] Id.—Failure of Vendee to Enforce Contract—Bight to Commission.—The plaintiffs as brokers, having done all that they were required to do under the contract, should not be deprived of their right to payment of the commission because the seller deemed it to his interest to waive the enforcement of the contract in accordance with its terms.</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>[1] Parent and Child—Support op Poor Parent—Absence op Common-law Liability.—There is no common-law obligation on the part of a child to support a parent, but such obligation depends entirely upon statute.</p> <p>[2] Id. — Person not Legally Adopted — Absence op Statutory Liability.—Under section 206 of the Civil Code, which declares in substance that it is the duty of children of any poor person who is unable to . maintain himself by work to provide for such person to the extent of their ability, a party known as the child of such a poor person but w'ho is not such, and who was never adopted, although she lived with him and his wife for many years and bore their name, is not liable for the support of such poor person.</p> <p>[3] Id.—Insufficiency op Adoption.—Being known as a child of a man and his wife, living with them as a child, and bearing their name, do not constitute an adoption.</p> <p>1. Liability of child for parent’s support, note, 9 Ann. Cas. 1019.</p>

<p>[2] Id.—Building as Trade Fixture—Bight op Bemoval.—While the term “trade fixture” is usually applied to tools, implements, and other contrivances more readily movable than a building, it also includes structures erected by the tenant on the demised premises for purposes of trade, and he may exercise his right of removal at his will at any time before the end of the term.</p> <p>[3] Id.—Erection op Building by Lessee—Presumption.—The fact that the building was erected by the tenant for his own purposes raised the presumption in his favor of his right to remove it.</p> <p>[4] Id. — Bemoval op Building — Action for Damages — Bight of Lessee.—In this action for damages for the removal of a certain building from the lands of plaintiff, the court was justified in finding from the evidence that the building was a trade fixture; and it further appearing that the removal of the building could be effected without injury to the premises and that it had not become an integral part of the premises, the defendant had the right to remove it during the continuance of the term of his lease.</p> <p>[5] Id.—-Written Lease—Subsequent Executed Oral Agreement-^ Bight to Bemove Building.—Where prior to the expiration of the original written lease it is superseded by an executed oral agreement creating a new tenancy at an advanced rent with a special agreement for the removal of the building erected by the tenant on the leased premises, the tenant has a right to remove such building at any time while the substituted lease is in force.</p> <p>[6] Id.—Substitution op Executed Oral Agreement por Written Lease—Evidence—Admissions op Agent.—The parties to a written lease may substitute therefor an executed oral agreement; and to establish the novation it is proper to receive in evidence the conversations between the lessee and the agent for the lessor with reference thereto and the admissions of such agent as to his agreement for the removal of buildings erected by the lessee on the leased premises.</p> <p>[7] Id. — Evidence op Agency — Scope op Authority — Estoppel — Finding.—Such person having represented himself as the agent of the owner of the property and having executed the instrument as her attorney in fact, and she never having repudiated nor questioned his right to do so, but having accepted the rent for many years without question and acquiesced in the possession and use of the premises during the entire period, the trial court was warranted in concluding that he was her agent and that he was acting within the scope of his authority.</p> <p>5. Effect of renewing tenancy without reserving right to remove fixtures, notes, 3 Ann. Cas. 331; 20 Ann. Cas. 769; 1 L. B. A. (If. S.) 1193; 17 L. E. A. (If. S.) 1135; 46 I>. B. A. (If. S.) 947; 48 L. B. A. .Of. S.) 294.</p>

<p>[1] Nuisances—Intrusion op Boots op Trees into Adjoining Land —Remedies op Owner.—The growth of the roots of trees which extend into the land of another, to the injury of the vines, trees, •and crops of the latter, constitutes a nuisance which the latter may himself abate by intercepting and destroying the roots, or for which he may have Ms action for damages and for the abatement of the nuisance against the owner or occupant of the land on which they grow.</p> <p>[2] Id. — Degree op Damage Suppered Immaterial — Expense op Abatement.—The injury being of a continuing „ nature, increasing with the growth of the trees, the fact that the damage already suffered is slight is no reason for denying the plaintiff’s prayer that the nuisance be abated; and the defendant, being the party causing the nuisance, should bear the expense of abating it.</p> <p>1. Bights of adjoining land owners with respect to tree on or overhanging boundary line, notes, Ann. Cas. 191813, 1157, 1171; 18 A. L. R. 655.</p>

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

<p>[1] Contracts—Agreement to Charge for Water Service Connections—Effect of Exiling of Bailroad Commission.—Defendant having agreed with the water company that he would include in each contract for the sale of land in a certain tract being subdivided by him a provision that the purchaser should pay to the water company a specified sum for each water connection, which sum was to be credited on a certain promissory note given ■by defendant to such water company in payment of a certain number of connections in said tract, he was not prevented from carrying out such contract by a ruling of the Bailroad Commission relating to the rights of applicants to service, where such tract of land was situated in unincorporated territory and the ruling of the commission by its own terms did not apply in such territory.</p>

<p>[1] Criminal Law—Larceny—Taking op Mare—Intent—Evidence —Verdict—Appeal.—In a prosecution for the larceny of a “sorrel mare” it is for the jury to determine, from all the circumstances of the case, whether the act of the defendants in taking the mare was or was not with a criminal intent or an intent to steal the animal; and in this prosecution the appellate court could not say that the determination of the jury upon that question was not correct or that its verdict was against the evidence.</p> <p>[2] Id.—Recognition op Dependants—■ Hearsay Evidence — E'rror Without Prejudice.—It having developed on cross-examination of one of the witnesses for the prosecution that his testimony on direct examination relating to his recognition of the defendants as the persons who took the mare in question was pure hearsay, it was error to deny the defendants’ motion to strike such testimony from the record; but that fact and the guilt of the defendants having been conclusively established by the testimony of other witnesses, no miscarriage of justice could have resulted from such erroneous ruling.</p> <p>[3] Id.—Admission op Revolver in Evidence—Droop op Criminal Intent.—Notwithstanding the testimony of the defendant that he had no revolver in his possession at the time he was accosted by the owner of the mare and was told that the animal was the property of the latter and that he was not in the habit of carrying a weapon, the owner having testified that the defendant drew a revolver and threatened to -blow his brains out if he came near and another witness having testified to having seen some article drop from the hand of the defendant near the place and time where and when the alleged threat was made, the revolver, the cylinder and the cartridges found at that place and near that time were admissible for what such evidence was worth, as tending in some measure to show that the taking of the mare was with a criminal intent.</p>

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

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

<p>[1] Criminal Law — Bare — Evidence—Befusal op Prosecutrix to Describe Acts.—In a prosecution for rape, it is error to deny the defendant’s motion to strike out the testimony of the prosecutrix where, although on direct examination she testified that the defendant had had sexual intercourse with her at the time and place specified, and to the general question as to whether she knew what sexual intercourse was she answered “Yes, sir,” on cross-examination she persistently refused, without any reason, to describe the acts which were done.</p> <p>[2] Id.—Proof of’ Penetration — Conclusion of Witness.—In such prosecution, in view of her refusal, without any reason, to describe the acts which went to establish the offense, the testimony of the prosecutrix to the effect that the act of sexual intercourse had been committed fell short of establishing the fact of penetration, which is essential to the establishment of the charge of rape, and constitutes a mere conclusion of the witness.</p>

<p>[1] Taxation—City of Sixth Class—Right to Impose License Tax on Doctors.-—A city of the sixth class has the power to impose a license tax for the purpose of revenue for carrying on the business of physician and surgeon at a fixed place of business within its limits.</p> <p>[2] Id. — Action to Recover Tax — Fixed Place of Business of Defendant—Pleading—Evidence.—In an action by a city of the sixth class to recover a license tax imposed upon a physician and surgeon, the defendant is not prejudiced by the failure of the complaint to allege that he has a “fixed” place of business within the city limits where the evidence shows conclusively that he has a fixed place of business.</p>

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

<p>[1] Mechanics’ Liens — Action on Contractor’s Bond — Time or Commencement.—Where a contractor’s bond conditioned, as required by section 1183 of the Code of Civil Procedure, for the payment of the claims of persons performing labor or furnishing materials upon said work provides that any suit brought on such bond to recover any claim thereunder “must be instituted within the time allowed by law for instituting a suit to enforce a lien claim,” a materialman who has not filed a claim of lien may commence an action on such bond at any time within 120 days from the recording of notice of completion of the work.</p>

<p>[1] Appeal—Absence of Bill of Exceptions—Service of Papers— Recital in Judgment—Presumption.—In the absence of a bill of exceptions, the recital in the judgment and decree that the plaintiff “duly served and filed its answer to the cross-complaint” of defendant is conclusive, on appeal, as showing that the services of the papers in the trial court was regular.</p> <p>[2] Pleading—Notice of Change of Attorney—Service of Papers. Where a person, after appearing in an action by an attorney, appears and files her answer and cross-complaint in propria persona, but she does not, in compliance with the provisions of sections 284 and 285 of the Code of Civil Procedure, serve and file notice of change of attorney, subsequent pleadings and notices are properly served upon the attorney who appeared for her.</p>

<p>[1] Sales—Rescission—Surrender and Acceptance of Thing Sold. A vendor and vendee may effect a rescission of a written contract of sale by the vendee surrendering up the thing purchased and the vendor accepting the same, and an agreement on the part of the latter to refund the purchase price may then be enforced.</p> <p>[2] Id.—Conditional Rescission—Effect of Resale to Third Person.—Where a rescission of a contract for the purchase of a motor-truck is made conditional upon the ability of the vendor co make a resale thereof, the truck being surrendered to the vendor, the rescission becomes effective and tho vendor bound whenever the latter makes a sale and delivery of the truck to a third person; and even though the vendor makes a conditional sale to said third person, the rescission becomes effective and the vendee under the rescinded sale is not required to wait to see whether said third person complies with the terms of his contract.</p> <p>[3] Id.—Rescission of Contract—Authority to Bind Corporation Vendor—Estoppel.—In making the contract for the surrender of the motor-truck, the vendee having dealt with the sales-manager and the secretary-treasurer of the corporation vendor, who had been placed in charge of the business of the latter and with whom the vendee had dealt in making his contract for the purchase of the truck, the vendor is estopped to deny that authority existed in them to bind it.</p>

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

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

PROCEEDING on Habeas Corpus to secure the release of petitioner from the state prison on the ground that the Superior Court did not have jurisdiction of his person. Writ discharged and petitioner remanded to custody. The facts are stated in the opinion of the court.

<p>[1] Sales—■ Purchase Through Broker — Action for Purchase Price—Evidence.—In an action for goods sold to defendant, who dealt only with a broker and not with plaintiff directly, communications passing between plaintiff and its representatives and such broker, but not shown to have been communicated to defendant, are properly excluded.</p> <p>[2] Id.—Agreement Between Defendant and Broker—Absence of Authority—Evidence.—In such action, it being indisputably shown that the defendant dealt with such broker and with no one else in negotiating for and ordering the goods, the defendant is entitled to show the agreement made, notwithstanding the plaintiff repudiates the authority of such broker to represent it.</p> <p>[3] Id.—Shipment—Delivery on Payment of Draft—Reservation of Title—Evidence.—The fact that a bill of lading is made to the order of the seller, with instructions to notify the buyer, and that it is forwarded with sight draft attached to a bank at the point of destination authorized to deliver to the buyer only upon payment of the draft, clearly evidences an intention on the part of the seller to reserve title and possession until payment of the draft.</p> <p>[4] Id.—Cash Sale—Passing of Title—Risk of Loss.—When the terms of sale are cash, title does not pass until payment of the price; and in the absence of an agreement to the contrary, the risk of loss is assumed by the party having the title.</p> <p>[5] Id.—Relation of Payment to Delivery.—When nothing is said when the order is given as to the time. of payment, delivery of the goods and payment of the price are deemed to be concurrent acts.</p> <p>[6] Id.—Letter to Seller — Omission of Terms—Waiver of Performance.—Where a letter from the buyer to the seller does not purport to set forth in full the agreement entered into between the buyer and the agent of the seller, but only deals with the method of payment, the failure to mention other terms does not amount to a waiver of performance as to them.</p> <p>3. Passing of title to consignee on delivery to carrier as affected by bill of lading and attachment of draft thereto, notes, 5 Ann. Cas. 263; 2 L. R. A. (N. S.) 79.</p> <p>Passing of title -by delivery f. o. b., notes, 62 L. R. A. 802; 33 L. R. A. (N. S.) 54.</p> <p>[7] Id.—Adoption op Unauthorized Contract—Liability to Burdens.—Although a seller cannot be bound by the terms of a contract of sale made by its agent, if unauthorized, and might refuse to deliver the goods, where it delivers the goods to the buyer, with full knowledge of the circumstances and conditions under which they were ordered, it will be held to have adopted the contract, subject to its burdens as well as its benefits.</p> <p>[8] Id.—Sale by Sample—Bights of Buyer.—Where a sale is one by sample, an opportunity to inspect the goods to ascertain whether or not they are in conformity with those ordered is a condition precedent to the buyer’s obligation to pay for them, and if they are not the buyer is entitled to reject them and to refuse payment.</p> <p>[9] Id.—Removal of Goods to Place op Business — When Bights not Waived.—Where goods are sold by sample, the removal of the goods from the railroad station to the place of business of the buyer for the purpose of inspection does not constitute a waiver of that right or an acceptance of the goods, where lack of facilities renders inspection at the railroad station impossible.</p> <p>[10] Id.—Prompt Examination—Right op Rejection—Refusal op Payment.—Where, upon removal of such goods from the railroad station to the place of business of the buyer, they are promptly examined and found to be defective, inferior to sample, and totally unfit for the purpose for which they were ordered, or for any other purpose, the buyer is entitled to reject the goods and refuse payment.</p> <p>[11] Id.—Delivery op Goods Under Mutual Mistake — Bight op Rejection.—Assuming that there was no contract of sale at all because there was no meeting of the minds of the parties and that the goods were delivered under a mutual mistake of fact, the buyer was not obligated to keep and pay for the goods, where he acted promptly in the matter of their rejection.</p> <p>8. Bight of buyer to inspection of goods at destination, under f. o. b. contract, note, 16 Ann. Cas. 1201.</p>

<p>APPLICATION for a writ of Habeas Corpus. Denied.</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—Counsel Fees, Costs and Alimony Pending Appeal-Discretion op Trial Court—Appeal—Presumption.—A motion by the wife, made following the granting to her husband of a decree of divorce on the ground of cruelty, that her husband be directed to pay her money for her support pending an appeal, moneys for her expenses on appeal, and moneys to employ an attorney to present her appeal, is addressed to the sound discretion of the trial court; and on appeal from an order denying such motion, in the absence of a record showing there to be merit in the appeal, the appellate court must assume that the trial court denied the motion in the exercise of its discretion, and in particular because, in the opinion of the trial court, the wife had no just grounds for an appeal.</p>

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

<p>[1] Landlord and Tenant—Use of Premises for Saloon Business —Failure to Secure License in Firm Name—Guarantor not Released.—In this action by a lessor against the lessees and their guarantor to recover a sum due as rent for the use of premises that were leased “for the purpose of therein carrying on the business of a saloon and cigar-store and for no other purpose or purposes whatsoever,” together with interest and attorney’s fees, there having been a completed contract, duly signed by the necessary parties, free from any conditions or contingencies, and binding upon all the parties immediately upon its execution, the guarantor was not released from liability by reason of the fact that the liquor license was issued in the name of one of the lessees, and not in the firm name, as required by the municipal ordinance.</p> <p>[2] Id.—Commencement of Term Prior to Securing License— Validity of Lease.—Such lease was not rendered unenforceable ■by reason of the fact that the liquor license was not obtained prior to the commencement of the term thereof, there having been no understanding or agreement that the lessees were to conduct a saloon illegally, but, on the contrary, the lease having expressly provided that the “tenants shall not do anything in the premises . . . which shall conflict . . . with any rules, regulations, or ordinances established by the 'Board of Supervisors ... or any other board or department.”</p> <p>[3] Id.—Blooding of Premises With Sewage—Eviction of Tenants— Evidence—Bindings.—In this action by a lessor against the lessees and their guarantor to recover a sum due as rent for the use of certain premises leased for the purpose of carrying on the ■business of a saloon and cigar-store, conceding the guarantor was entitled to set up as a defense that through the negligence ■and fault of the lessor the premises were frequently flooded with sewage, the evidence introduced by him in support thereof was insufficient in law to constitute a breach of the covenant of quiet enjoyment, and the trial court was justified in concluding that there was no eviction on account of the sewer trouble and that it did not deprive the tenants of the reasonable use and enjoyment of the premises at any time during the period of the lease.</p> <p>[4] Id.—Eviction of Tenants—Bights of Guarantor—Bailure of Tenants to Claim Offset—Conclusion from.—Conceding that a guarantor of the payment of rent is entitled to urge all of the defenses allowed in law to the tenants, he is entitled to no greater rights; and the fact that in an action against a guarantor and the tenants the latter do not plead in their answers an offset based upon sewer trouble on the leased premises justifies the conclusion that the facts of the case do not authorize such a defense.</p> <p>[5] Id.—Assignment of Lease—Consent of Lessor—Batifioation— Evidence.—In this action by a lessor against the lessees and their guarantor to recover a sum due as rent for the use of certain leased premises, in which the guarantor claimed that the lessor had consented to the assignment of the lease and that he was thereby released as guarantor, it was conceded that the lessor had not given her written consent to the assignment, as required ■by the lease,' and the evidence was insufficient to prove that she afterward ratified the assignment.</p> <p>[6] Id.—Liability of Guarantor fob Attorney's Bees—Construction of Lease and Guaranty.—The lease having provided for the payment of attorney’s fees in case the lessor should prevail in any suit brought by her thereunder, and the contract of guaranty having provided that in the event of the failure of the lessees to pay any of the rent due under such lease “or perform any of said covenant in said manner, that he . . . will pay said rent and perform said covenants at the time and in the manner in said lease provided,” the liability of the guarantor thereunder was commensurate with the liability of the lessees, and in an action against the lessees and said guarantor to recover unpaid rents, the court properly charged the guarantor with attorney’s fees.</p>

<p>[2] Id.—Inadequacy of -Consideration—Effect of.—It is not necessary that the consideration of a note shall -be equal in pecuniary value to the obligation incurred, and mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defense to the note.</p> <p>[3] Rescission—Knowledge of Fact of Unfair Advantage—Ratification.—Failure to rescind a transaction promptly after a knowledge of the fact of an unfair advantage taken must be regarded as a ratification of the transaction.</p> <p>[á] Promissory Note—-Action to Enjoin Sale of -Security—Tender —-Pleading and Proof.-—In a suit in equity brought by the maker of a promissory note to enjoin the sale of corporate stock pledged as security for its payment, the plaintiff must allege and prove a tender of the amount due; and the plaintiff may not justify the failure to plead such tender upon the ground that it would have been useless, basing such contention upon the fact that defendant rejected the offer made by her during the 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>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to vacate a decree in an action to quiet title. John J. Van Nostrand, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Attorney at Law—Disbarment—Application for Reinstatement — Sufficiency of Evidence. — In this proceeding for reinstatement to practice law after disbarment, the showing is sufficient to warrant the granting of the application.</p> <p>1. Reinstatement of disbarred attorney, note, Ann. Cas. 19CL2A, 813.</p>

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

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

<p>[1] Usury Law—Direct Loan—'Charge of “'Commission”—Device to Avoid Law.—Where money was loaned directly by the lender to the borrower and there was no agent or intermediary in the transaction, the exaction of a greater sum for the loan than the maximum amount that a lender is entitled to ask or receive under the present usury law under the device of a “commission” for making the loan was a shift to circumvent and avoid such usury law.</p> <p>[2] Id.-—Usurious Contract—Interest After Maturity—Recovery Prohibited.—Under the present usury law declaring that if the contract be usurious, no action at law to recover interest in any sum shall be maintained, the recovery of interest after as well as before maturity is barred.</p> <p>[3] Chattel Mortgage—Loan-—Bill of Sale and Contemporaneous Lease—Nature of Transaction.—Where a borrower, as security for a loan, executed to the lender a bill of sale of his automobile, and contemporaneously with such execution, and as a part of the same transaction, the parties executed an instrument in writing, in form a lease, which, after reciting, that the borrower as “lessee” had hired and received from the lender as “lessor” the automobile in question, for tho term of six months, and after providing that the “lessee” should pay the “lessor” as rental for the hire of the automobile during the said term a stated sum in monthly payments, further provided that if the “lessee” should make the payments, he should have the right to repurchase the automobile by paying the “lessor” one dollar, the so-called lease was but a mortgage.</p> <p>[4] Id.—Nature of Chattel Mortgage—Effect of Mortgagee’s Possession.—In this state a mortgage is but an incident of the indebtedness, the property is impressed with only a lien for the benefit of the mortgagee, the legal title remains in the mortgagor, and the mortgagee is not entitled to possession unless authorized by the express terms of the mortgage, and if, upon the mortgagor’s default, the mortgagee does take possession, his interest in the property is not enlarged or affected thereby, nor is the mortgagor’s right of redemption cut off, but the only effect is to enhance the mortgagee’s security.</p> <p>1. What transactions are usurious, notes, 81 Am. Dec, 736; 46 Am. St. Rep. 178.</p> <p>Taking interest in advance as usury, note, Ann. Cas. 1915C, 1156.</p> <p>[5] Id.—Once a Mortgage Always a Mortgage—Meaning of Doctrine.—The established doctrine that what is once a mortgage is always a mortgage means that no agreement in advance to waive the equity of redemption is valid and that when once it is established that a transaction is impressed with the character of a mortgage the right to redeem will continue until the debt is paid or until the equity of redemption is foreclosed or barred, or duly and sufficiently released.</p> <p>[6] Id.—Lease 'Contract—Security for Debt—Defaum of Mortgagor—Right of Mortgagee—Void Provisions.—It is not competent for the parties to make a conveyance of property, absolute in form, a security for the payment of money by a given day, with the further agreement that if payment is not made the instrument shall be treated as an absolute sale, and a provision in a “lease,” which is in effect a chattel mortgage, that if the debt be not paid the title shall vest absolutely in the mortgagee is void, and such a provision is not severable from a provision giving the mortgagee the right of possession upon the mortgagor’s default, and both provisions are therefore invalid.</p> <p>[7] Id.—Seizure of Mortgaged Property—Conversion—Extinguishment of Lien.—Where the mortgagee, after seizure of the mortgaged property in replevin and delivery to him, converted it to his own use by making a conditional sale thereof to a third party, such conversion was inconsistent with the continued existence of the mortgage lien and effected an extinguishment thereof.</p> <p>[8] Conversion—Replevied Property—Value of Use.—Where replevied property has a value on account of the use to which it may be put as distinguished from its value for sale or consumption, the successful defendant may recover the value of the use of the property during the time it was unlawfully withheld from him under the writ.</p> <p>[9] Id.—Inability to Secure Return of Property—Recovery for Usable Value.—Where the property has a value on account of the use to which it may be put in excess of the legal rate of interest upon its value for sale or consumption, the defendant may recover such usable value notwithstanding the fact that he may be unable to secure a return of the property from the plaintiff but may have to take in lieu thereof the value of the property.</p>

PROCEEDING on application for a Writ of Mandate to compel a justice of the peace to enter a judgment in a civil action. Granted. The facts are stated in the opinion of the court.

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

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Emmet Seawell, Judge. Affirmed as to defendant city, reversed as to codefendants.</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] Criminal Law — Assault With Intent to Commit Rape — Evidence—Impeachment op Prosecutrix.—In this prosecution on a charge of assault with intent to commit rape, the court committed error prejudicial to the substantial rights of the defendant in refusing to allow the defendant the right to pursue a course of cross-examination of the prosecutrix, whereby it was sought to impeach her testimony by showing that she had previously made statements inconsistent with and contradictory to the testimony sho. was then giving, and by withholding from the jury, and from the defendant, certain knowledge possessed by the trial judge to the effect that the prosecutrix had made statements to an officer of the law flatly contradicting the testimony she was then giving, which, if true, would tend strongly to discredit her as a witness in the ease.</p> <p>[2] Id.—Impeachment op Witness—Contradictory Statement—Erroneous Restriction op Examination.—Before a witness may be impeached on account of having made contradictory statements, the attention of the witness must not only he called to the time and place, and the persons, in the presence of whom, the contradictory statement is claimed to have been made, but the statement itself must be related to the witness, and it is error after permitting the attention of the witness to be called to the time, place, and persons present, to refuse permission to call attention to the statement itself merely because the witness states that she does not remember the ■occasion.</p> <p>1. Impeachment of witnesses by proof of prior inconsistent statements, note, 73 Am. Dec. 762.</p> <p>[3] Id.—False Testimony — Knowledge Obtained from Reliable Source—Duty of Judge.—Where a defendant is charged with a dastardly offense not because it is claimed that he directly committed it but because of his association with those who did commit it, and the trial judge learns from a source he firmly believes to be reliable that the chief witness for the prosecution has admitted that she lied in material parts of her testimony, it is his duty, in the interest of justice and of fair dealing with the defendant, to cross-examine the witness thoroughly as to the admission or allow the defendant to take up the cross-examination so that the true situation as the judge knows it to be may be placed before the jury.</p>

<p>[1] Workmen's Compensation Act — Death of Minor Employee— Eight of Action by Dependent Mother.—Appeal dismissed on authority of McLain v. Llewellyn Iron Works, ante, p. 60, reversing judgment.</p>