Volume 6 — California Appellate Reports

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

PETITION for discharge upon writ of habeas corpus to the city marshal of the city of Ukiah. The facts are stated in the opinion of the court.

<p>Husband and Wipe—Deed prom Wipe to Husband—Undue Influence not Presumed—Want op Consideration.—Undue influence will not be presumed in any transaction between husband and wife from the mere existence of the marital relation; nor will the want of consideration of a conveyance of the wife to the husband raise a presumption of undue influence from the mere fact of the marital relation alone.</p> <p>Id.—Action by Wipe to Compel Reconveyance—Burden op Proof— Abuse op Confidence Reposed.—In an action by the wife to compel a reconveyance of property conveyed by the wife to the husband, she has the burden of proof to establish undue influence, and must show that the husband made use of the confidence reposed in him by her, for the purpose of obtaining an unfair advantage over her.</p> <p>Id.—Determining Abuse op Confidence—Marriage Relation, and Want of Consideration to be Considered.—In determining the question of an abuse by the husband of the confidence reposed in Mm by the wife, the marriage relation and the want of consideration for the deed by the wife to the husband are facts to be considered, in connection with other facts indicative of such abuse, and those facts have more or less weight in determining that question.</p> <p>Id.—Former Deed of Gift to Wife—Valuable Property—Title Vested in Wipe.—Where the husband on the day of the marriage executed and delivered to the wife property of the value of $4,000, in consideration of love and affection, the title thereto became absolutely vested in her.</p> <p>Id.—Beconveyance Induced by Fear—Notary of Husband—Want of Independent Advice—Deed by Husband to Children.—Where shortly before the husband’s death the wife was induced by fear, in the absence of independent advice, to reeonvey the property to him for a nominal consideration of $10, which was not paid, and to acknowledge the deed before a notary employed by the husband, reposing confidence in him that he would reconvey it to her, instead of which he conveyed it secretly to the children to whom he had transferred all other property, the facts show undue influence on the part of the husband in obtaining the deed, and the wife is entitled to a reconveyance from the children after the husband's death, upon the discovery of such secret conveyance.</p> <p>Id.—Duty of Husband to Wife.—A husband is bound by section 158 and 2228 of the Civil Code to act in the highest good faith toward his wife, and may not obtain any advantage over her by the slightest misrepresentation, concealment, threat or adverse pressure of any kind. There must be no constraint upon her or against her free will of what she is unable to refuse. He must deal with her at arm’s-length.</p> <p>Id.—Confidential Belation—Necessity of Independent Advice.— Persons standing in a confidential relation toward others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had competent and independent advice in conferring them.</p> <p>Id.—Evidence—Declaration of Husband to Notary—-Becord of Wife’s Deed—Order Striking Out.—Where the notary in narrating the husband's instruction to him stated that he said that the wife’s deed should not have been recorded, and that it was recorded by mistake, the court properly struck out such evidence, as a self-serving declaration, not made in plaintiff’s presence, and as not competent to prove that fact.</p> <p>Id.—Cross-examination of Plaintiff—Absence of Claim of Ownership—Bedirect Evidence—Explanation.—Where on cross-examination of plaintiff she stated that she made no claim to the property prior to her husband’s death, upon redirect evidence she was properly allowed to explain that to speak about it would have caused trouble, and that she had confidence that he would give it back to her again.</p> <p>Id.—Want of Consideration for Deed.—On the direct examination of the plaintiff, she was properly allowed to state that there was no consideration for the deed executed by her to her husband, evidently referring to the money consideration.</p> <p>Id.—Pleading—Sufficiency of Complaint.—Where the complaint of the wife alleges intimidation on the part of plaintiff's husband, and the exertion of Ms predominating influence over her and taking advantage of the confidence reposed in him by her, and at a time when she was called upon to act without any independent advice, all of which resulted in Ms obtaining title to valuable property belonging to her without consideration, it states facts sufficient to constitute a cause of action.</p> <p>Id.—Uncertainty—General Demurrer.—Uncertainty is not good ground in support of a general demurrer.</p> <p>Id.—Uncertainty not Prejudicial After Trial.—The court will not, in all cases where error has been committed by the trial court in overruling demurrers for alleged ambiguity or uncertainty, order the reversal of a judgment based upon a trial of issues joined upon the complaint and answer, where prejudicial error does not appear, and the defendant has not been misled to Ms prejudice.</p> <p>Id.—Amendment of Complaint to Conform to Proofs—Discretion— Refusal to Set Aside Submission—Findings.—The court had discretion to allow the plaintiff to amend the complaint to conform to the proof, and to refuse an application of the defendants to set aside the submission, and for a continuance for further evidence, and to file its findings and render judgment thereon, where the defendants have not been deprived thereby of any substantial right.</p>

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

<p>Wills—Contest—Undue Influence of Wife Over Husband—Non-suit—Effect of Evidence.—Where a nonsuit was granted in the contest of a will upon petition to revoke the probate thereof, on the ground of undue influence of the wife over the husband, in determining the question whether the case was properly taken from the jury, the evidence introduced by the contestant, must for the purpose of'the motion for nonsuit be all considered as true, and must be given its full probative force; and every favorable inference fairly dedueible therefrom, and every favorable presumption fairly arising therefrom, must be considered as facts proved in favor of the contestant.</p> <p>Id.—Undue Influence Defined—Confidential Eelation—Husband and Wife.—Undue influence is the use by one in whom a confidence is reposed by another, who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage of his weakness of mind, or of his necessities or distress. The relation between husband and wife is confidential; and though it may not of itself raise a presumption of undue influence in the making of a will, it is important in weighing the evidence upon that question.</p> <p>Id.—Facts to be Considered.—The question as to undue influence is to be determined by consideration of the relation between the parties, the character, strength and condition of each of them, the circumstances of the ease, the application of sound practical sense in relation thereto, the mental and physical condition of the testator, and the provisions of the will itself.</p> <p>Id.—Evidence Showins Undue Influence—Improper Nonsuit.—-Where the contestant was a daughter of the deceased and a sole child, who was disinherited by the will, and the evidence showed that deceased was seventy years old, had had a habit of drunkenness, and had been for some time in feeble health; that his wife was the stronger of the two, mentally, or by will power; that she took charge of the community money, and deposited it in her own name, and superintended the husband’s affairs generally; that the mother opposed the daughter’s marriage, and never forgave her, and stated that she would receive no part of the estate; that deceased was friendly to the daughter, and often visited her; that the wife for a long time before the husband’s death, continually dominated him; that the will gave all the property to the wife for life, and the residue to her distant relatives, who were unknown to the deceased, to the exclusion of all the husband's blood relatives; that the will was made three days before his death, in the wife’s presence, and that she afterward declared that she had got the will just the way she wanted it—undue influence was sufficiently shown to warrant a jury in setting aside the will, and a judgment of nonsuit was improper and erroneous.</p>

<p>Action on Note—Counterclaim:—Evidence—Bill Against Insolvent Corporation.—In an action on a promissory note, where the defendant pleaded a counterclaim for services performed, evidence was admissible for plaintiff to show that a bill for the alleged services was presented against an insolvent corporation, for which the services were rendered, and not for the plaintiff.</p> <p>Id.—Expert Witness for Plaintiff—Value of Defendant’s Services. The expert evidence of an attorney at law, who was a witness for the plaintiff to testify to the value of defendant’s services as an attorney at law, was properly admitted against defendant’s objection.</p> <p>Id.—Support of Verdict for Plaintiff.—Held, that the evidence was amply sufficient to support the verdict for plaintiff, and against the defendant.</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>Action on Note and Chattel Mortgage—Want op Consideration— Affirmative Defense—Omission in Findings.—In an action on a note and chattel mortgage, a plea of want of consideration is an affirmative defense, and if evidence was offered in support of it, it would be the duty of the court to find thereon, but where it appears from the record that the oihission to find thereon would not affect the substantial rights of the defendant, the judgment will not be reversed on account of such omission.</p> <p>Id.—Proof of Consideration—Assignment of Attachment Claims to Plaintiff—Release of Attachment.—Where the evidence showed that attachment claims against defendant’s property which were unsatisfied were assigned and transferred to the plaintiff, and that the release of the attachment by plaintiff was the agreed consideration on which the note and chattel mortgage were executed, the consideration thereof was proved, and the omission to find upon defendant's plea of want of consideration could not prejudice the defendant.</p> <p>Id.—Statements or Acts of Assignors After Transfer.—The statements or acts of the assignors subsequently made or performed after the assignment and transfer to the plaintiff can have no effect as against the plaintiff as tending to overcome his proof of transfer.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John E. Daly, A. D. Laughlin, and R. R. Bidwell, for Appellant.</p>

<p>Husband and Wife—Action for Alienating Husband's Affections— Insufficient Evidence.—Where the evidence in an action by the wife for damages, by reason of defendant having alienated from plaintiff the affections of her husband, where the evidence discloses only an unsuccessful attempt to alienate the husband's affections, and there is no evidence from which it may be inferred that the husband ever intended to abandon his wife, or that he had lost his affection for her, the evidence is insufficient to sustain a verdict for the plaintiff and a new trial must be granted.</p>

<p>Change of Venue—Cause of Action—Affidavit—Answer—Residence.—Upon an application for a change of the venue, in determining the cause of action, the complaint alone is to be considered; and an affidavit of the personal defendant and an answer of the mining company defendant cannot be looked to on that question, and can only be considered on the question of residence.</p> <p>Id.—Cause of Action to Compel Bank to Deliver Pledged Stock— Action not Involving Real Estate—Question of Residence.— Where the only cause of action attempted to be stated is to compel the defendant savings bank to deliver to plaintiff shares of stock in defendant mining company pledged to the bank as pledge-holder for the personal defendant as pledgee, it involves no question as to real estate, and the only question is one of residence.</p> <p>Id.—Probative Facts Anticipating Defense.—Any probative facts stated in the complaint anticipating the reason for the refusal by • the savings bank to deliver the pledged stock to the plaintiff is no part of the cause of action, and cannot be considered upon the motion to change the venue.</p> <p>Id.—Cause of Action not Stated Against Mining Company—Improper Party.—Where the complaint states no cause of action against the defendant mining company, it is neither a necessary nor a proper party, and its opposition to the change of venue cannot be considered.</p> <p>Id.—Action in Wrong County—Change of Venue to Residence of Personal Defendant—Consent of Savings Bank.—Where the action was improperly brought at the principal place of business of the defendant mining company, although neither of the corporations defendant were entitled as of right under section 16 of article XII of the constitution to have the action removed on account of its place of residence, yet, where the personal defendant applied for a change of venue to the place of his residence, and the savings bank, which was the only other proper party defendant, consented to his application, it was properly granted, where there was a sufficient showing of merits.</p> <p>Id.—Affidavit of Merits—Sufficiency.—An affidavit of merits, presented by the moving party, stating that “he has fully and fairly stated the case” to his counsel, which is sufficient in other respects, is not insufficient because it did not use the words “has fully and fairly stated the facts of the case” to his counsel. There is no essential difference between these statements.</p>

<p>Action on Notes Against Maker—Alleged Indorsement by Corporation Payee Before Maturity—Evidence.—In an action on notes indorsed to plaintiff before maturity by an alleged corporation payee, brought against the maker, it is not necessary for the plaintiff to prove the corporate existence of Ms indorser.</p> <p>Id.—Authority of Vice-president of Sewing Machine Company— Requested Indorsement by Plaintiff—Discount—Estoppel.— Where the notes were indorsed by the defendant sewing machine company by its vice-president, at whose request plaintiff indorsed the notes, which were discounted for the benefit of the sewing machine company, whether it be a corporation or not, it is estopped to deny the authority of its vice-president to indorse the notes, and where the maker failed to pay the note, the plaintiff, who was compelled to take them up, may enforce them against the maker.</p> <p>Id.—Pledge of Securities to Plaintiff—Eight of Personal Action Against Maker.—The fact the sewing machine company pledged securities to the plaintiff cannot affect his right of personal action against the maker, though the collateral securities are still held, in the absence of any statute or stipulation to the contrary.</p> <p>Id.—Want of Consideration—Indorsement Before Maturity for Value — Presumption — Proof — Striking Out Evidence. — As against evidence of want of consideration by the maker, the presumption is that the indorsement to plaintiff was before maturity and for value, and where the plaintiff so testified, the evidence of the maker was properly stricken out.</p>

<p>APPLICATION for writ of mandate to W. S. Kingsbury, surveyor general.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action on Note—Transfer of Business by Maker—Assumption of Debts by Transferee—Promise for Benefit of Plaintiff.— Where the business of the maker of a note was transferred to a corporation which assumed all the liabilities of the maker, including the note, the promise of the transferee was for the benefit of the plaintiff, and he may maintain an action thereon against such corporation.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Mono County. J. D. Murphey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jas. F. Peck, Wm. O. Parker, and Chas. C. Boynton, for Appellant.</p>

' MOTION to dismiss an appeal from a judgment of the Superior Court of Riverside County. F. E. Densmore, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Motion to Dismiss—Failure to File Transcript—Clerk’s Certificate—Undertaking Filed too Late—Jurisdiction—Dismissal by Court Sua Sponte.—Where the respondent moves to dismiss the appeal from a judgment for failure to file the transcript, and the clerk’s certificate introduced on the motion shows that the undertaking on appeal was filed eight days after service of the notice of appeal, it discloses that the appeal is ineffectual for any purpose, and it will be dismissed by the court, of its own motion, for want of jurisdiction of the appeal.</p>

<p>Action to Quiet Title—Pleading—Answer—Delivery or Deed—Allegation Deemed Controverted.—In an action to quiet title, where the answer sets up a deed from plaintiff to defendant, and alleged the delivery of the deed by plaintiff, the allegation is deemed to be controverted by the plaintiff, and he may disprove the delivery of the deed.</p> <p>Id.—Proposed Exchange of Land for Stock—Deposit of Deed Pending Investigation—Unauthorized Delivery.—Where there was a proposed exchange of plaintiff’s land for defendant’s railroad stock, and plaintiff delivered an acknowledged deed to brokers, who were the mutual agents of both parties, with directions to hold possession of it, until plaintiff should investigate the value of the stock, and until the exchange should be completed, and the deed ■was delivered to defendant in violation of plaintiff’s directions, it passed no title to defendant.</p> <p>Id.—Consent op Grantor Essential to Delivery.—In a legal sense, there can be no delivery of a deed without the consent of the grantor. The intention of the grantor, rather than the mode of executing the intention, is the crucial point. Delivery is not complete until the grantor has voluntarily surrendered all control over the deed.</p> <p>Id.—Effect of Possession of Deed—Evidence not Conclusive.— While possession of the deed by the grantee named therein is prima facie evidence of delivery, it is not conclusive, and may be controverted by extrinsic evidence showing that it was never delivered to him by the grantor, or with his consent.</p> <p>Id.—Proof and Finding upon Issue as to Delivery—Fraud—Breach of Trust or Rescission not Involved.—In the action to quiet title, where the issue raised by the answer was one of delivery by plaintiff of the deed under which defendant claims title from plaintiff, and the nondelivery of the deed was proved by plaintiff, and found by the court, no question of fraud, or of breach of trust, or of rescission is involved in the case. The act of the brokers in turning over the deed to defendant, contrary to the expressed wishes of the plaintiff, was as ineffectual to pass title as if the deed had been forged or stolen.</p>

<p>Officers—Superintendent of Schools—Quo Warranto—Former Judgment in Election Contest—Bes Adjudicata—Evidence.— In an action of quo warranto, where it appears that the relator recovered final judgment in a former election contest against the defendant, of which the court had jurisdiction, annulling the defendant’s certificate of election, and adjudging a certificate to the relator, as against the objection of defendant on constitutional grounds, that the words “no nomination” could not properly be printed on the ballots, and deciding that a cross by voters after those words invalidated ballots cast for defendant, that question is res adjudicata, and the former judgment for relator in the election contest is admissible to sustain the title of the relator to the office, and to show that the defendant is usurping the office.</p> <p>Id.—Object of Quo Warranto—Beal Party in Interest—Usurpation of Office.—Though the relator in quo warranto must obtain the consent of the attorney general, and the people are, eo nomine, parties to it, the relator is none the less the real party in interest, and the object of the proceeding is practically to enforce and carry out the final judgment rendered in his favor in the election contest, as against the defendant, who, by refusal to surrender the office to the relator after final judgment in his favor and proper qualification, became a usurper of the office.</p> <p>Id.—Eligibility op Relator—Residence—Temporary Absence as Teacher.—Where it appears that the relator resided in the county in which he was elected and maintained his registration therein, and was only temporarily absent therefrom as a teacher in another county, with intention to return, which intention was carried into effect after the close of the term of teaching, the court properly found that he was eligible to election in the county claimed by him as a residence.</p> <p>Id.—Time op Qualification op Relator.—While the contest for the office was pending, section 907 of the Political Code prescribing the time within which a person elected to office must qualify has no application to the contestant, and it is sufficient that he qualifies within ten days after the filing of the remittitur from the supreme court, rendering the judgment absolutely final.</p>

<p>Negligence—Drunken Passenger on Vessel—Contributory Negligence—Duty op Captain to Use Care to Avoid Injury.—Notwithstanding the contributory negligence of a passenger on a vessel in being drunk and in lying in stupor on the floor of the vessel, it is the duty of the captain, who knows his condition, to use reasonable care to avoid injuring him. •</p> <p>id.—Injury Through Negligence op Captain—Liability op Owner.— Conceding the right of the captain to remove the drunken passenger from a place of danger near the cabin door, yet, where he knew his drunken and helpless condition, and raised him to his feet and negligently left him standing without support, and, as a result, the drunken man, being unable to support himself, fell to the floor and broke his arm, the owner of the vessel is liable for the resulting injury.</p> <p>Id.—Last Ability to Avoid Danger.—He who knows of a danger and can avoid it, as against one who does not in fact know the danger, or as against one within whose power does not lie the ability to avoid it, is responsible for the injury, notwithstanding the injured person had placed himself in the position of danger through his own negligence.</p> <p>Id.—Amendment of Complaint to Conform to Proofs—Discretion.— The court had discretion, under section 473 of the Code of Civil Procedure, to allow the complaint to be amended to conform to the facts announced by the judge as having been proved, and where no abuse of discretion is made to appear, the court’s action will not be disturbed upon appeal.</p> <p>Id.—Immaterial Finding Against Evidence—Support of Judgment.— The fact that one of the findings is not supported by the evidence is immaterial, where the judgment for the plaintiff is amply supported by the other findings which are sustained by the evidence.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Sutter County. K. S. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Note—Presumption op Consideration—Burden op Proof.—The presumption is that a promissory note was given for a consideration, and this presumption has the effect of prima facie evidence; and the burden of proof is upon the defendant to overcome this presumption, by proof sufficient to satisfy the jury that the note was without consideration.</p> <p>Id.—Province op Jury—Disregard op Dependant’s Evidence—Finding in Favor op Presumption—Conclusiveness op Verdict.—The jury is the exclusive judge of the weight of the evidence before it; and it was within its province to determine whether the defendant’s evidence was of sufficient strength to overcome the presumption of consideration of the note sued upon, and if it was not satisfied of its sufficiency, it was at liberty to disregard it, and to find in favor of the presumption, and its verdict will not be disturbed upon appeal from an order denying a new trial.</p> <p>Id.—Evidence Overcoming Disputable Presumption—Determination of Question—Power of Appellate Court.—Although, where the evidence to the contrary is sufficient to overcome a disputable presumption, it completely exhausts its force, yet there must be, under our system, a power to determine the question whether the evidence is sufficient for that purpose. The fact that the record upon appeal seems to show evidence to the contrary cannot justify the appellate court in setting aside the conclusion of the jury and of the lower court against the sufficiency of such evidence, where there is nothing in the record which would warrant the appellate court in declaring, as matter of law, that' the finding is against the evidence.</p> <p>Id.—Forbearance to Sue Defendant’s Son—Unfaithful Agent for Plaintiff—Sufficiency of Consideration.—Where there wag evidence tending to show that the note sued upon was executed by the defendant under a promise made on the part of the payee that she would refrain from suing the son of defendant, who had been an unfaithful agent of the plaintiff, upon a note bearing his signature payable to plaintiff, such evidence tended to show what in law is a sufficient consideration to support the note of the defendant to plaintiff. The law in such case will not attempt to measure the amount, or weigh the quantum, of the consideration.</p> <p>Id,—Criminal Liability of Agent—Disgrace of Civil Action—Belief of Defendant not Material.-—Though a note given in consideration of a direct promise not to prosecute defendant’s son for a felony would be void as against public policy, yet where the jury found against such promise, its finding on that subject is binding upon this court; and where the evidence tended to show that defendant considered that a civil suit against her son would involve him in public disgrace, as exposing his bad faith and dishonesty, she had a sufficient incentive to execute the note in suit in consideration of forbearance of the plaintiff to sue her son; and if such was the only agreement in fact, her mere belief that her son had committed a criminal offense would be immaterial.</p>

<p>New Trial—Filins of Notice of Intention—Neglect of Clerk— Eights or Moving Party.—Where counsel for the party moving for a new trial served and delivered to the clerk on the day of service, and within due time, the notice of intention to move for a new trial, and, without fault on the part of the counsel, the clerk neglected to indorse the document as filed within the time, the moving party should not lose his rights by reason of the neglect of the clerk to do his oficial duty, and the court may treat the notice as filed on the date of its service and delivery to the clerk.</p> <p>Id.—Feb hot Demanded—Payment After Time Limited.—Where the fee for filing the notice of intention was not demanded, and the clerk testified that failure to pay it when the notice was received would have made no difference, the fact that it was paid a month after the notice was delivered to the clerk, when the failure to mark it as filed was discovered, cannot affect the rights of the moving party.</p> <p>Id.—Order Granting New Trial—Review upon Appeal.—Where an order granting a new trial is general, and no reason therefor is given, if any sufficient reason for granting it can be found, the order must be affirmed.</p> <p>Action to Quiet Title—Tax Deed to Dependant—Invalidity— Uncertain Description.—In an action to quiet title, when the defendant claims under a tax deed to defendant of a portion of the premises, the description of the part covered by the deed must be definite, certain and intelligible of itself, and not such as to require evidence aliunde to render it certain. A description of the land as “a strip of 50 acres on the north line of Fractional N. W. % of section 7,” etc., not calling for a strip along the whole length of that line, is too uncertain to support the tax title.</p> <p>Id.—Prescriptive Title Under Tax Deed not Shown—Payment of Successive Taxes—Double Assessment—Interruption.—A prescriptive title of defendant under the tax deed is not made out where there was an interruption in the payment of subsequent taxes on the land sold, notwithstanding a double assessment, by the first payment of all taxes assessed on the entire property to the plaintiff, before the payment of the second or double tax which the defendant had caused to be assessed to himself, on the land sold. In such case defendant cannot claim compliance with the statute.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Morrison, Cope & Brobeck, Ernest Weyand, and James F. Peck, for Appellant.</p> <p>Seth Millington, J. W. Goad, and Thomas Rutledge, for Respondents.</p>

PETITION for writ of review to annul a judgment of the Superior Court of Shasta County, adjudging petitioner guilty of contempt. Geo. W. Bush, Judge. .The facts are stated in the opinion of the court.

<p>Contempt—Disobedience to Mandate—Punishment of Successor in Office not a Party—Want of Jurisdiction—Certiorari.—The superior court, in a proceeding in mandamus to compel a former secretary of a corporation to produce all of its books for the inspection of the petitioner, is without jurisdiction to punish his successor in office, who was not a party to the mandamus proceeding, for contempt in not complying with the writ, and the judg- z/ ment adjudging said successor guilty of contempt will be annulled upon writ of review.</p>

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

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

PETITION for writ of prohibition to the treasurer and Superior Court of the City and County of San Francisco et al. Frank H. Dunne, Judge. The facts are stated in the opinion of the court.

<p>San Francisco Charter—Removal of Chief of Police for Misconduct—Charter Method Exclusive—Penal Code Superseded— Prohibition.—The freeholders’ charter of the city and county of San Francisco, adopted in pursuance of the constitution, and approved by the legislature, provides an exclusive mode of procedure for the removal of the chief of police for misconduct in office. The provisions of the charter supersede the provisions of the Penal Code conflicting therewith, and prohibition will lie to restrain the superior court from proceeding under the Penal Code to oust the chief of police for alleged misconduct in office.</p> <p>Id.—Municipal Officer—Removal a Municipal Affair.—The chief of police is only a municipal officer, whose duties pertain to the city, and his removal is a municipal affair that concerns only the municipality.</p>

PETITION for writ of mandate to members of board of trustees of Ocean Park. The facts are stated in the opinion of the court.

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

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

<p>APPLICATION for writ of habeas corpus to the sheriff of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PETITION for writ of prohibition to the Superior Court of Napa County. H. C. Gesford, Judge.</p> <p>■ The facts are stated in the opinion of the court.</p>

<p>Negligence—Injury to Passenger—Support op Verdict.—In an action for the alleged negligence of the defendants in the management of a vessel upon which plaintiff was a passenger, causing injury to her, held, that the evidence is sufficient to justify the conclusion of the jury that the vessel ran on rocks because of the negligence of the defendant, and that the same was the proximate cause of the injury to the plaintiff.</p> <p>Id.—Evidence—General Financial Condition op Plaintiff Inadmissible.—In such action the general financial condition of the plaintiff is irrelevant to the question of special damages claimed by her for loss of time and earnings as a dressmaker, or to any other issue, and evidence thereof was inadmissible.</p> <p>Id.—Evasion of Prior Ruling—Irresponsive Answer—Error in Refusing Motion to Strike Out.—Where the court had sustained an objection to the question “Are you a woman of means?" on the ground of its immateriality, but in reply to the question, “During the period you were a dressmaker, state the means by which you have supported yourself?" she answered, “I have no other means or resources," such answer was an evasion of the prior ruling, and was not responsive to the question, and it was prejudicial error to refuse a proper motion to strike it out.</p> <p>Id.—Instructions—Contributory Negligence.—An instruction assuming that plaintiff, upon the happening of a trivial occurrence, brought the injury on herself, was properly refused. But an instruction on the subject of contributory negligence which was correct in law, and not clearly covered by other instructions of the court, should have been given.</p>

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

<p>APPEAL from a judgment of the Superior Court of Kern County, and from an order refusing a new trial. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Wallace W. Wideman, Benjamin P. Welch, and J. C. Crouch, for Appellant.</p>

<p>Attachment—Notice of Motion to Dissolve—Service upon Attorney—Nonresidence of Plaintiff Immaterial.—The service of notice of a motion by the defendant to dissolve an attachment must be made upon the attorney for the plaintiff. The nonresidence of the plaintiff is immaterial, and cannot affect or extend the time required for the service of the notice.</p> <p>Id.—Basis for Attachment—Affidavit—Writ Exceeding Sum Stated in Affidavit—Dissolution.—A writ of attachment is an independent proceeding in the action, and must be based wholly upon the claim of indebtedness stated in the affidavit, and where the writ was issued for a sum in excess thereof, the attachment was properly dissolved.</p> <p>Id.—Variance Between Affidavit and Complaint—Writ Based upon Complaint not' Supported.—Where the complaint was upon two promissory notes, one for $4,000, dated March 19, 1904, with interest from date at ten per cent per annum, and the other for $3,500, dated December 30, 1904, with interest from date at seven per cent per annum, and the affidavit for attachment merely stated an indebtedness "in the sum of $7,500, besides interest,” showing neither rate nor time, the indebtedness shown thereby is only for the principal sum stated, and a writ of attachment describing the sums stated in the complaint, with interest on each respectively at the rate and from the date specified, is not supported by the affidavit, and is for a sum in excess thereof.</p>

<p>Public Nuisance—Suit fob Abatement by Private Person—Special Injury.—A private person, to have any standing in an action to abate a public nuisance, must show that he has suffered a special injury of a different kind from that of the public, and not simply a difference of degree.</p> <p>Id.—Pleading—Joinder of Causes—Cause of Action for Pollution of Atmosphere.—Where the complaint joined two causes of action in one count, one of which is a cause of action for the general pollution of the atmosphere in that section of the city, and especially of that portion belonging to the plaintiffs, by the negligent operation of defendant’s works, whereby their homes were rendered unfit for occupation, such cause of action is not tenable.</p> <p>Id.—Proper Cause of Action for Special Injury to Land and Water. Where the other cause of action stated in the complaint is for negligent management of the defendant's works, causing seepage upon plaintiff’s land, destroying the productiveness of its soil, and polluting the water thereon so as to render it unfit for use, such cause of action is tenable, and the plaintiff is entitled to recover the damages caused by such special injury peculiar to himself.</p> <p>Id.—General Demurrer Improperly Sustained.—Where a general demurrer was interposed to the entire complaint, and not to the divisible matter constituting the untenable cause of action, it could not be properly sustained.</p> <p>Id.—Untenable Demurrer for Bar of Statute of Limitations.—A demurrer especially setting forth the bar of the statute of limitations cannot be sustained, where the complaint does not affirmatively show that the cause of action is barred. Where the complaint for damages to the land and water is confined to the two years last past, the demurrer is untenable.</p> <p>Id.—Maintenance of Nuisance.—The fact that defendant’s negligence causing the nuisance has continued for more than two years would only render the statute applicable as to what occurred prior to the beginning of the two years. The originator of the nuisance remains liable to successive actions for damages resulting from the maintenance thereof.</p> <p>Id.—Affirmative Defense—Plea of Statute.—The plaintiff is not bound affirmatively to show that the action is barred, and a plea of the statute of limitations is an affirmative defense.</p> <p>Id.—Uncertainty—Matter in Knowledge of Defendant.—The complaint is not uncertain in not informing the defendant when it made, dug and constructed its works. This was a matter peculiarly within the knowledge of the defendant.</p>

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

<p>Judges—Additional Superior Judge—Provisional Term—Vacancy-End op Term op Provisional Appointee—Failure op Elected Judge to Qualify.—The legislature may provide for the election of an additional superior judge in any county, and the governor may appoint a judge to act provisionally until the election of the additional judge. If his first appointee refuses to accept or qualify, the governor may fill the vacancy in the provisional term, which ends absolutely with the beginning of the constitutional term of the elected judge. No provisional appointee can hold over on account of the failure of the elected judge to qualify.</p>

<p>APPEAL from a judgment of the Superior Court of San "Joaquin County and from an order denying a new trial. ,W. B. Nutter, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public Lands—Character of Land—False Testimony—Trust— Question of Fact—Exclusive Jurisdiction of Land Department. The land department of the United States has exclusive jurisdiction to détermine the mineral or agricultural character of its land, and where it has been in fact determined by it to be mineral in character, an agricultural claimant, who has had an opportunity to contest the question of fact in the land department, cannot apply to the courts to enforce a trust against the mineral patentee, on the ground that the patent was fraudulently obtained by false and perjured testimony before the land department, and that the land was in fact non-mineral, and was suitable only for agricultural purposes—no question of law being involved in the decision of the land department.</p>

<p>Negligence—Action fob Death—Contributory Negligence—Support of Verdict.—In an action for death alleged to have been caused from injuries sustained through the negligence of the defendant railroad company, where there is evidence from which the jury might have inferred that the contributory negligence of the deceased was the proximate cause of the injury, and the contrary cannot be said as matter of law, the verdict of the jury for the defendant, notwithstanding evidence of its negligence, is sufficiently supported, and cannot be disturbed upon appeal.</p> <p>Id.—Last Clear Opportunity to Avoid Injury.—The one who has the last clear opportunity to avoid the injury is responsible therefor, whether it be the defendant or the deceased, and where the defendant could not have anticipated that the deceased would attempt to move around a backing train, the motion of which ahe could clearly see, the principle applied to the deceased.</p> <p>Id.—Proper Instructions—Law Applicable to Pacts.—Held, that the court properly instructed the jury as to the law applicable to the facts proved tending to show the negligence of the defendant and the contributory negligence of the deceased, and as to the last clear opportunity of the deceased to avoid the injury.</p> <p>Id.—Evidence—Hearing of Alarm Bell—Immaterial Ruling.—The exclusion of evidence as to whether an alarm bell could be heard at the residence of the deceased was not material, where it was admitted that no alarm bell was rung, and it clearly appeared that deceased was familiar with the crossing.</p> <p>Id.—Issue as to Lights on Bear Car—Exclusion of Evidence.—■ Where the only issue was as to lights on the rear car, the exclusion of evidence as to lights on any of the cars was not erroneous, where the witness was permitted to testify as to lights on the rear car.</p> <p>Id.—Testimony of Bear Brakeman.—Where the rear brakeman had fully explained “that he could have stopped the train anywhere,” it was not error to exclude evidence on cross-examination as to whether he could not have stopped it before reaching the street crossing.</p> <p>Id.—Exclusion of Evidence—Error not Prejudicial.—Error in excluding evidence as to whether a witness for plaintiff saw any person on the end of the train with a lantern was not prejudicial where the witness had testified that he could not observe anyone on the train, unless he was close up, and that he did not know that the caboose ear was on the train, and saw no light anywhere.</p> <p>Id.—Befusal of Bequested Instructions—Modification.—The court harmlessly refused instructions requested by plaintiffs on the question of damages, which was eliminated by the verdict, and properly refused instructions invading the province of the jury, or ignoring facts proved, or assuming facts not proved, or coupling correct propositions with such as were incorrect, and properly modified requests to make them conform to the law, as properly declared in the instructions given by the court.</p> <p>Id.—Pleading—Demurrers—Leave to Amend in Part—Notice—Demand for Default—Discretion—Error not Shown—Presumptions.—Where a general and special demurrer to the complaint was sustained in part and overruled in part with ten days’ leave to amend the complaint, and one week thereafter plaintiffs notified defendant of the ruling, and of their declining to amend, and one week later demanded defendant’s default, the court had discretion to refuse it, and to grant to the defendant further time to answer, and where the record upon appeal shows no abuse of discretion or error in the ruling of the court, all presumptions are in favor of the action, and it will not be disturbed upon appeal.</p>

<p>Criminal Law—Bobbery—Possession of Property Taken—Duty of Explanation.—An instruction to the jury on the trial of defendants charged with robbery, that “if the jury believe, from the evidence, beyond a reasonable doubt, that the property mentioned in the information, or any portion thereof, was feloniously taken from the person of the prosecuting witness ... as described in the information, and received into the possession of the defendants shortly after being so feloniously taken, the failure, if failure there be, of the defendants to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show them guilty, and the accused are bound to overcome the effect of the possession as a circumstance to be considered in connection with other suspicious facts, if the evidence discloses any such,” is not erroneous.</p> <p>Id.—Construction of Instruction—Mere Possession Insufficient.— Such instruction is to be construed in connection with another instruction, that “the possession of the fruits of crime is a circumstance to be considered in determining the guilt of defendants; but you arc instructed that this circumstance is not of itself sufficient to authorize a conviction, and that the possession by the defendants of the articles alleged to have belonged to the prosecuting witness is not sufficient to convict defendants of the crime of robbery. ’ ’</p>

PETITION for writ of habeas corpus to the sheriff of Sonoma County, to test the validity of a commitment from the Justice’s Court of Cloverdale Township. I. S. Lewis, Justice of the Peace. The facts are stated in the opinion of the court.

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

<p>Municipal Bonds—Election Under General Law—Ordinances—• Illegal Denomination — Surplusage — Repeal — Proper Ordinance—Mandamus.—Where the freeholders’ charter of the city of Santa Barbara provided for a municipal election for bonded indebtedness to be issued in pursuance of the general law of the state, which provides for election under an ordinance which is not required to specify the denomination of the bonds, and authorizes the municipality by subsequent ordinance to fix the denomination of the bonds, not exceeding $1,000 each, and a number equal to the proposed indebtedness, where the ordinance calling the election provides for a bonded indebtedness for $50,000, at a specified rate of interest, and for forty bonds of $1,250 each, payable one in each year, the latter provision is surplusage, and a subsequent illegal ordinance providing for the same bonds was properly repealed, and under a subsequent proper ordinance calling for eighty bonds of $625 each, payable two in each year, mandamus will lie to compel the city clerk to issue them, and to affix the seal of the city thereto.</p>

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

<p>Corporations—Assessment upon Stock—Invalidity—Place op Payment not Specified.—Section 334 of the Civil Code states in positive terms what an order levying an assessment upon the stock of a corporation must contain, and requires that it must specify where the assessment is payable, and if no place of payment is specified therein, the order is void.</p> <p>Id.—Forfeiture—Proceedings Strictly Construed—Power of Courts. The proceedings by which the property of a stockholder is declared forfeited, without suit or personal notice, must be strictly construed, and all the conditions precedent to such forfeiture must substantially exist, and the courts have no power to dispense with any one of such conditions.</p>

<p>Estates of Deceased Persons—Relinquishment, of Rights of Wife as Heir of Husband—Antenuptial Contract—Construction.— Whatever interest the wife acquires in the community property, or the husband’s separate property, she acquires as heir; and an antenuptial agreement, under which the proposed husband agrees to support the proposed wife and her daughter, to pay her $100 per year, and $1,000 at his death, in consideration of which she relinquishes and disclaims any right or interest in or to his property as heir or otherwise, cannot be construed as applying only to the property then possessed, but relinquishes all claim as heir to any part of the community property or separate property of the husband thereafter acquired, neither of which could vest in her as heir until his death.</p> <p>Id.—Terms of Contract Preclude Administration by Wife.—If the antenuptial agreement is to have legal effect, the wife, under its terms, is not entitled to letters of administration upon the estate of the deceased husband.</p> <p>Id.—Provision in Contract for Thousand Dollars Payment from Estate.—The payment of the $1,000 agreed upon in the ante-nuptial contract, if the wife receives it at all, will be not because the law of descent casts it upon her, but under the terms of the contract.</p> <p>Id.—Contest for Letters—Opposition of Wife to Petition of Son— Answer—Fraud—Mistake—Nonperformance of Contract—Jurisdiction.—Where there was a contest for letters of administration between the wife and son of the deceased husband, and in opposition to his petition she interposed an answer, alleging facts constituting fraud in the antenuptial contract, and also constituting mutual mistake therein, that the agreement was waived by the husband in his lifetime, that he failed and refused to support her minor daughter, and failed to make any provision for payment of the $1,000, a general demurrer thereto was improperly sustained and the answer was improperly stricken out, on the ground that the court had no jurisdiction to inquire into these matters, upon a contest for letters.</p> <p>Id.—Nonperformance of Material Covenants—Eights of Heirship.— Where a woman, in an antenuptial contract, has released all rights in the property of her intended husband as his heir, in consideration of Ms agreed action, if he fails to perform material covenants ón his part, she may show this and still claim her rights as Ms heir.</p> <p>Id.—Power and Duty of Superior Court—Determination of Issues. The superior court,, in the exercise of its general powers, though sitting in probate, had jurisdiction to hear and determine the issues raised by the answer of the wife to the petition of the son for letters. It was the duty of the superior court to ascertain which of the two parties petitioning was entitled to letters of administration; and as such it had .power and it was its duty to decide and pass upon all questions necessary to be decided to reach a proper conclusion upon the ultimate issue to be determined.</p> <p>Id.—Bes Adjudicata as to Heirship.—The fact that the final determination of heirship upon the application for letters will probably conclude the widow upon distribution of the estate affords a good reason why all issues raised as to the validity of the antenuptial contract, and as to the widow’s right of heirship, should be fairly and fully determined upon the contest for letters.</p>

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

<p>Dire Insurance—Construction or Policy—Substantial Compliance with Terms Beqtjisite.—The general rule that policies of insurance are to be construed strictly against the insurer and in favor of the insured applies where there is ambiguity in the terms of the policy, and cannot be invoked to change the nature of the contract, or to affect the rule of law that the insured must be held to a substantial compliance with the terms of the policy.</p> <p>Id.—Porpeiture op Policy—Breach op Condition—Change or Interest—Contract or Sale with Possession—Equitable Ownership.—Where a policy of fire insurance provides that the policy shall be void, upon a change of the title, interest or possession of the insured property (except change of occupants without increase of hazard), unless an agreement thereto is made upon or added to the policy, a contract by the insured to sell the property, giving to the purchaser fhe possession and control of all income, and conferring upon him the equitable ownership in fee, without any agreement thereto affixed to the policy, is a breach of condition avoiding the policy, where the fire occurs after such change of interest and possession.</p> <p>[d.—Finding Against Increase of Risk Unsupported.—In view of the facts of this case, a finding that there was no increase of the risk is unsupported. Such finding could only apply when there is a mere change of tenancy, and not to a change in the interest of the insured by sale to a vendee in possession. In the latter ease, where there is no consent of the insurer, any loss by fire will fall upon the vendee, who will still be liable to pay the full purchase price to the insured, thus giving to the insured the inducement of temptation to be indifferent concerning the care of the property.</p>

<p>Water Eights—Adverse Use—Title by Prescription—Support of Finding.—In an action to determine plaintiff’s title to a water right for the purpose of watering stock and domestic animals on his premises, where plaintiff relies upon adverse user for that purpose for eleven years and a title by prescription, and the court found in favor of such right, where there is substantial evidence of every element of adverse use, the finding of the court below is controlling.</p> <p>Id.—Knowledge by Defendant of Adverse Use.—Where the facts proved justified the court in reaching the conclusion either that the defendant had knowledge of the character and extent of ■ the use by plaintiff and Ms predecessor of the water, or that it was put upon inquiry and might have known it by ordinary care, the finding of use adversely to the defendant is sufficiently supported.</p> <p>Id.—Circumstantial Evidence—Notorious Possession—Claim or Adverse Possession—Presumption or Knowledge__-Direct evidence of knowledge on the part of the defendant is not required, and the circumstances may be sufficient to justify the finding of the court, No particular act or series of acts is necessary in order that the possession may be notorious, but any visible act which clearly demonstrates an intention to claim ownership and possession will be sufficient to establish a claim of adverse possession, which may be made out without-any assertion by word of mouth. When the use is not secret or clandestine, but open, visible and notorious, the presumption of knowledge follows, and this presumption applies to a corporation as well as to a private person.</p> <p>Id.—Burden of Proof.—The burden was first upon the -plaintiff to prove his title by prescription to use of the water for the watering of stock as claimed, and upon proof of a prima fade case of adverse use thereof for more than five years, it devolved upon the defendant to show that the use was permissive, or without the knowledge of the defendant.</p> <p>Id.—Judgment as to Domestic Use Unwarranted—Modification.— Where there was no finding that the use of the water for domestic purposes by plaintiff's predecessor, under contract with the defendant, was appurtenant to the land, or was granted to him by Ms predecessor, and there was no finding upon an issue that the privilege granted by the defendant was personal to plaintiff's predecessor, a general finding that plaintiff was entitled to the domestic use of the waters, not showing any prescriptive right thereto, is unsupported, and a judgment awarding to him said right in addition to the prescriptive right to water stock awarded to him is too broad, and must be modified by striking out the domestic use of the water.</p>

<p>Fire Insurance—Plea of False Statement in Policy—Value of Property—Conclusiveness 'Of Verdict.—In an action upon a fire insurance policy where the insurance company pleaded a willfully false and fraudulent statement of the value of the property insured, and there was evidence that the property was as valuable as it was represented to be, that the agent of the insurance company was familiar with the property and prepared the application fixing its insurable value, and that the company afterward requested the insured to have the amount of insurance increased, notwithstanding conflicting evidence to the contrary, the verdict for the plaintiffs is conclusive upon appeal upon that question.</p> <p>Id.—false Statements in Proofs of Loss—Knowledge of Falsity— Intention to Defraud—Question for Jury.—Though willfully false statements in the proofs of loss avoid the policy when it so provides, yet an untrue statement, to have that effect, must have been knowingly and intentionally made by the insured with knowledge of its falsity, and with the intention of defrauding the company. Whether a false statement was so made is a question of fact for the jury.</p> <p>Id.—Presumption of Mistake or Misapprehension.—If such a statement of facts is presented as leaves a reasonable presumption of mistake or misapprehension on the part of the person swearing to the proofs of loss, such presumption should be indulged in preference to that of willfully false swearing. A mere discrepancy does not create a presumption, as matter of law, that the insured contemplated fraud when the statements were made.</p> <p>Id.—Mistakes of Adjuster—Known Facts—Support of Verdict.— Where there is evidence that mistakes in the proofs of loss were chargeable to the adjuster who prepared the proofs and were unknown to the insured when the proofs were sworn to, and there was no reason why the insured should make a false statement about a mortgage on the property, the policy being payable to the mortgagee, and the mortgage being a matter of record, which was known to the agent of the company who secured the insurance, the jury's finding for the insured is sufficiently supported.</p> <p>Id.—Instructions to Jury—Ignorance of Misstatements.—It was proper to instruct the jury that any misstatements in the proofs of loss of which the insured was ignorant do not work a forfeiture ’ of the policy of insurance or deprive the plaintiffs of a right of recovery thereunder.</p> <p>Id.—Honest Discrepancy Between Proofs and Actual Loss.—It was proper to instruct the jury that a discrepancy between the statement in the proofs of loss by the insured and the actual loss proven at the trial, if it can be reasonably accounted for on the score of opinion or judgment honestly given, will not make the policy void.</p> <p>Id.—Exception to Instructions of Court.—Exceptions to instructions given by the court of its own motion should be specific and not general.</p> <p>Id.—Special Issues Submitted to Jury—Change of Phraseology— Discretion of Court.—Where numerous special issues were submitted to the jury covering all of the issues raised by the pleadings, the court had discretion to change a question submitted by defendant as to whether the insured presented “satisfactory proofs of loss,” so as to make it read, “such proofs of loss as were required by said policy of insurance.” What was required by the policy is all that the company had the right to demand.</p>

<p>Estates op Deceased Persons—Jurisdiction op Probate Court— Untenable Action by Assignee op Heir—Money Taken by Widow.-—The estate of a deceased person must be administered in the probate court. An action will not lie in favor of the assignee of one heir to recover his share of money, the separate property of the deceased, which the widow wrongfully took, claiming it as her own, and deposited in the defendant bank, though it is alleged that there are no creditors of the estate.</p>

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

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

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

<p>Unlawful Detainer—Forfeiture of Lease—Breach of Condition Against Subletting—Nature of Bent Immaterial.—In an action in unlawful detainer, in which a forfeiture of a lease is claimed for breach of a condition against subletting the whole or any part of the premises, such condition is violated by any subletting, irrespee- . tive of the nature of the rent reserved, or the mode of payment thereof. It is violated by allowing one subtenant to transact business for payment of part of the expenses of the lease, and in allowing another subtenant to transact business for a commission or percentage of the profits of the business done by him each month.</p>

<p>Action by Wipe to Annul Second Marriage by Husband—Statute op Limitation—Construction op Code.—A second marriage contracted by the husband while his lawful wife was living, under a marriage then in force, is void, and may be annulled at the suit of such lawful wife, at any time during the joint lives of the parties to the void marriage, or during the entire time that the void marriage continues to exist, under a proper construction of subdivision 2 of section 83 of the Civil Code, which must be liberally construed to effect its objects and to promote justice.</p>

<p>Negligence of Servants of Independent Contractor—Injury to Plaintiff—Owner of Building not Liable.—The owner of a building in process of erection is not liable for injury to plaintiff by the fall of a projecting stone negligently left by servants employed by an independent contractor for the stonework in an insecure position.</p> <p>Id.—Independence of Contractor for Stonework—Employment of Servants and Means of Construction—Limited Supervision by Owner—Woodwork by Owner.—The independence of a contractor for stonework, according to plans and specifications, who employs his own servants and means of construction for a fixed price, is not affected by the fact that the owner by himself or agent has reserved the right to supervise the work merely so far as to see that it is done according to the contract, nor by the fact that the owner is a builder, who is doing his own woodwork.</p> <p>Id.—Nonsuit—Insufficiency of Evidence—'Verdict not Supported.— Held, that under the evidence a motion by the owner of the building for a nonsuit should have been granted, and that the evidence is insufficient to sustain a verdict against him.</p>

<p>Common Carrier—Negligence—Loss of Goods—Action for Value— Findings—Inconsistent Dates—Clerical Misprision.—-Where the complaint in an action to recover the value of goods lost by negligence of a common carrier alleged that appellant received the goods April 16, 1906, and the answer alleges that they were received April 17 or 18, 1906, a finding that they were delivered April 16, 1907, which subsequently describes the date as “said 16th day of April, 1906,“ the figures 1907 are evidently a clerical misprision; and a finding that defendant did not deliver the personal property to plaintiffs according to its agreement, but that by its negligence the personal property was destroyed by fire April 19, 1906, renders the clerical misprision immaterial, and sustains the action for its value.</p> <p>Id.—Finding as to Value—Blank Sums—Finding Based upon Complaint—Support of Verdict.—Where the complaint alleged that the value of the property lost was $1,000, a finding that its value “at the time of its delivery to defendant was the sum of $-” shows of itself no value, but another finding that all of the allegations of the complaint are true is sufficient to support a judgment for the sum of $786.45 damages.</p>

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

<p>Fraudulent Conveyance by Divorced Husband—Action by Divorced Wife—Judgment for Alimony.—A divorced wife having a judgment recovered against the husband for unpaid alimony, upon which she is entitled to execution, may maintain an action to set aside a fraudulent conveyance made by the divorced husband to another defendant who took with knowledge of the divorce, and to have the judgment declared a lien upon the property until the transferee shall pay and satisfy the judgment.</p> <p>Id.-—Pendency of Appeal from Judgment—Execution not Stayed— Affirmance—eights of Divorced Wife Unaffected.—The pend-ency of an appeal from the judgment for alimony, upon which execution was not stayed when the suit was brought by the divorced wife to assail the fraudulent conveyance, cannot affect her rights in such suit, where such judgment was finally affirmed upon appeal.</p> <p>Id.—Presumption of Law—Validity of Judgment—Admissibility.— The law presumes that a judgment until reversed is a correct judicial determination of the rights of the parties, and the plaintiff, being entitled to a writ of execution thereon, the judgment, though not final, was admissible in evidence for the purposes of the suit to assail the fraudulent conveyance.</p> <p>Id.-—Husband’s Heirship in Sister’s Estate—Distribution to Transferee—Deed Fed—Eights of Divorced Wife.—The fact that when the fraudulent transfer was made the title of the divorced husband was that of heirship to an interest in the real estate of a deceased sister, and that such interest was distributed to the husband's transferee, cannot affect the lien of the divorced wife’s judgment upon the property transferred, or her right to assail “ the fraudulent transfer. The decree of distribution merely fed the deed, and made definite the property that passed by it.</p>

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

<p>Continuance of .Trial—Discretion of Court.—A motion for the continuance of the trial of an action by an administrator to recover money deposited by a special administratrix in a commercial bank is addressed to the sound discretion of the trial court, and its action in refusing the continuance will not be disturbed on appeal, where no abuse of discretion appears. Held, that under the circumstances of this case, the court did not err in denying the motion for a continuance.</p> <p>Id.-—Appointment of Administrator—Bond—Collateral Attack.— The decree appointing an administrator is a conclusive determination of the sufficiency of the bond as against a collateral attack upon the validity of his appointment, and is subject only to be reversed, set aside or modified on appeal.</p>

<p>Replevin—Chattel Mortgage—Right of Possession—Default in Payment—Suit to Foreclose.—Where a chattel mortgage by its terms gives to the mortgagee the right to take possession of the mortgaged property, upon default in payment, the prior election by the mortgagee to foreclose the mortgage does not bar an action of replevin by the mortgagee to recover possession of the property. Such remedy is ancillary and auxiliary to the foreclosure, resting upon the right of possession given by the contract.</p> <p>jd.—Plea of Prior Action Pending.—In such case, the plea of a prior action pending to foreclose the mortgage when the replevin suit was instituted was properly overruled.</p> <p>Id.—Possession Essential to Valid Sale.—The possession of personal property is essential to a valid sale of it, whether sold as a pledge, or under decree of foreclosure. The property must be present at the sale.</p>

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

<p>Action by Mother to Compel Reconveyance from Son—Becital in Deed—Expectation of Death—Fraud—Support of Findings.— In an action by a mother to enforce a trust in real property conveyed by her to a son and to compel a reconveyance, where the court found upon the issues that the deed was delivered by her to him in consideration of love and affection, and for the better support of the grantor as recited therein, that it was not delivered in expectation of death with the understanding that it should take effect only in case she did not recover from serious illness, and that it was not procured by any fraudulent promise of the grantee made without intention of performing it, where there is any substantial evidence to support the findings, they cannot be disturbed upon appeal.</p> <p>Id.—Effect of Conveyance—Want or Failure of Consideration— Parent and Child—Invalidity not Presumed.—A deed executed and acknowledged and delivered to the grantee conveying land in fee simple is a solemn civil act which cannot be reclaimed at pleasure. It is not void for want or failure of pecuniary consideration. The mere fact that it is from a parent to a child cannot change the rule or make the deed presumptively invalid.</p> <p>Id.—Circumstances may Change Burden of Proof—Burden Sustained.—Circumstances may be such as to cast the burden of proof upon the child to show that the deed was freely and voluntarily executed by the parent, with intent to vest title in him absolutely. Seld, that if it be assumed that such burden of proof was cast upon the son in this case, the evidence is sufficient to sustain it.</p> <p>Id.—Immaterial Findings not Sustained.—Where all the material facts are found in favor of the son upon sufficient evidence, the fact that immaterial findings are not sustained by the evidence cannot affect the judgment.</p> <p>Id.—Moral Obligations not Enforceable.—Neither courts of equity nor courts of law have a right to enforce mere moral obligations.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County, denying a motion for a new trial. D. K. Trask, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action fob Guaranteed Price of Fruit Sold—Pleading—Answer Setting up Explanatory Letter—Execution not Denied—Evidence.—In an action to recover a guaranteed price per box of fruit sold by plaintiff’s assignors to the defendant, where the answer pleads in full a letter referring to a previous letter, and giving a special interpretation to it, and sets forth that the goods were shipped pursuant to the letter pleaded, such letter is not a written instrument upon which the defense is based within the meaning of section 448 of the Code of Civil Procedure, requiring the execution thereof to be denied under oath, and in the absence of such denial, the court properly allowed proof that the letter pleaded was not received, and that on the faith of another written proposition sent to plaintiff’s assignors guaranteeing a fixed price per box, and ratifying previous personal negotiations by telephone, the goods were shipped.</p> <p>Id.—Proof of Incorporation of Defendant—Admission in Letter.— The admission in a letter from the defendant sent to the plaintiff’s assignors that the defendant is a corporation is sufficient to support a finding of the corporate character of the defendant.</p> <p>Id.—Fruit Shipped by Others Through Assignors—Liability of Defendant.—Where fruit was shipped by other parties through plaintiff’s assignors to the defendant, whatever rights they acquired to the proceeds when sold were through such assignors, with whom alone defendant contracted, and to whom alone defendant was liable.</p> <p>Id.—Effect of Assignment—Entire Cause of Action—Interest.— * The assignment by plaintiff’s assignors to the plaintiff was sufficient to transfer to plaintiff the entire cause of action, and when all the goods shipped were sold by the defendant, the right of the plaintiff to receive the price guaranteed became fixed, and from the date of the sale plaintiff, as assignee, was entitled to interest under section 3287 of the Civil Code.</p> <p>Id.—Date of Sale—Implication.—Where fruit appears to have been ordered early in December for the Christmas trade, it cannot be said that the court erred in finding by implication that it was sold December 21st, where the exact date of the sale was not shown.</p>

<p>Criminal Law—Murder—Conviction of Second DegreeAInstructions as to First Degree not Prejudicial—Construction of Charge.—Where a, defendant, charged with murder in the first degree, was convicted of murder in the second degree, which is sustained by the evidence, any criticised instructions as to murder in the first degree could not be prejudicial, and an instruction as to murder in the first degree which omits an accurate statement of the law on that subject is to be considered in connection with the entire charge relating thereto, and if, as a whole, it correctly states the law as to murder in the first degree, it is freé from error.</p> <p>Id.—Applicability of Instructions—Province of Court and Jury.— The court may instruct the jury upon any material question upon which there is any evidence deserving of any consideration whatever. It is for the jury to determine what facts are proved by the evidence, and it is the duty of the court to state to them the law by which they are to be governed in the consideration of the evidence.</p> <p>Id.—Broad Statement op Law—Presumed Intelligence op Jurors.— The fact that correct instructions applicable to murder in the first degree and justifiable homicide stated the law more broadly than the facts of the case required cannot render them prejudicial. The jurors must be presumed to be possessed of such a degree of intelligence as to enable them to comprehend and understand the pertinency of the evidence before them to the court’s declaration of the law.</p> <p>Id.—Evidence—Declarations op Deceased.—The court did not err in refusing to admit evidence for the defendant to show declarations of the deceased, made some time prior to the homicide, that he ‘‘expected to die with his boots on,” where the name of the defendant was not used in connection therewith, and the defendant was not present, and it does not appear that such declaration was brought to his knowledge.</p> <p>Id.—Misconduct op Juror not Prejudicial.—Where a juror violated the admonition of the court in asking- the deputy sheriff having charge of the jury as to the punishment for manslaughter, to which the answer was ”1 don’t know,” it does not appear that the misconduct of the juror was so prejudicial as to demand a reversal.</p> <p>Id.—Misconduct op District Attorney—Instruction—Presumption. Where the district attorney made objectionable remarks as to the presumption that the defendant would have called an available witness if his testimony would have benefited him, but, upon objection being raised thereto, the.court thereupon instructed the jury to disregard the remarks objected to, it must be presumed that the jury heeded the ruling of the court, and the misconduct does not demand a reversal of the case.</p>

<p>Criminal Law—Perjury—Sufficiency of Indictment—Assignment of Perjury—Falsity of Testimony.—In an indictment for perjury, an assignment of perjury as respects the falsity of the testimony of the defendant set forth as material to the issue in a prior action is sufficient when the indictment avers that the testimony then and there given by defendant contrary to his oath was and is false and untrue, and was, at the time of the giving thereof, known by the defendant to be false and untrue.</p> <p>Id.—False Testimony as to Marriage—General and Particular Negation—Truth of Particular Facts.—An indictment charging the defendant with willful and corrupt testimony contrary to Ms oath in a prior action, that at a certain time and place a marriage ceremony was performed between him and Agnes Newman by a clergyman named, in the presence of named witnesses, and generally averring its falsity, and defendant’s knowledge thereof, is not insufficient because the truth of such testimony is also particularly negatived, and a particular averment is made that the truth and the facts were that at the same time and place, by the same clergyman and in presence of the same witnesses, a marriage ceremony was performed between defendant and Charlotta E. Newman.</p> <p>Id.—Time and Place—Negative Pregnant not Involved.—There being no substantive averment of a marriage ceremony between defendant and Agnes Newman, but only of the fact that he so testified, the particular negation of his testimony in relation thereto does not involve any negative pregnant as to the time and place of the marriage. Testimony as to time and place may be, and often is, material.</p> <p>Id.—Gist op Charge op Perjury—Entire Indictment to be Considered.—In determining the meaning of the indictment, the entire indictment is to be considered, from which it appears that the gist of the charge of perjury is that defendant falsely testified that a certain marriage ceremony that in truth was performed between defendant and Charlotta E. Newman was performed between him and Agnes Newman.</p> <p>Id.—Materiality op Testimony—Sufficiency op Averment.—An averment in the indictment that the testimony given by the defendant in the prior action “was material to the said action and the said trial hereinbefore described, and material to the issues tendered in said cause,” and that the defendant, in so testifying, “testified in a matter material to the said trial and said action and the issues therein,” is sufficient, when it does not affirmatively appear from any other averments that it was immaterial.</p> <p>Id.—Administration op Oath—Authority op Deputy County Clerk. A deputy county clerk is ex officio a clerk of the superior court, and as such has power upon the trial of an action in such court to administer oaths to witnesses.</p> <p>Id.—Form of Oath.—Where the form of the oath set forth in the indictment is not precisely the same as that given in section 2094 of the Code of Civil Procedure, but is in substance the same, the departure in the regular form of the oath is no defense to a prosecution for perjury.</p> <p>Id.—Support op Verdict—Material False Testimony in Former Prosecution.—Where it appeared upon the trial of the present prosecution that in a former prosecution for perjury defendant was charged with having sworn falsely to an answer in an action for maintenance by Charlotta E. (Newman) Collins as his alleged wife, that she was not his wife, and the fact and date of her marriage to him were-set forth in the former indictment to which defendant pleaded not guilty, the fact of such marriage was material to the issue, and his false testimony therein that he never married Charlotta E. Newman, and had married Agnes Newman at the time specified, was sufficient to support the verdict of guilty under the present indictment, and to support every material averment thereof.</p> <p>Id.—Evidence Properly Excluded.-—The court properly excluded evidence offered by defendant that upon the trial of the former prosecution he testified that there was originally a contract marriage between him and Agnes Newman, and that the ceremony was only performed out of deference to her religious scruples. The materiality of the testimony in contradiction of the ceremony with Charlotta could not be affected by the needlessness of a ceremony with Agnes.</p> <p>Id.—Challenge to Panel—Panel op Previous Year.—It is not a ground of challenge to the panel taken in January from the box of the previous year when the new list had not yet been placed in the jury-box. The fact that the old panel served longer than the law requires does not affect the regularity of their drawing or return.</p> <p>Id.—Examination of Juros—Impartiality and Fitness—Conflicting Statements.—The ruling of the trial judge who heard the examination of a juror will not be disturbed where it simply presents a case of conflicting statements from which different minds might draw different conclusions as to the juror’s impartiality and fitness.</p> <p>Id.—Evidence of Prosecution for Bigamy—Exclusion of Offer.— Offered evidence that the grand jury that indicted the defendant for perjury in the former prosecution had previously indicted him for , bigamy, and that both charges involved the fact that defendant married Charlotta E. Newman on the day specified, for the purpose of showing that the court had no jurisdiction of the former perjury charge, was properly excluded.</p>

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

<p>Criminal Law-—Embezzlement of Taxes by Deputy Assessor—Irregular Receipt of Part Payment—Variance—Estoppel.—Upon the trial of a deputy assessor accused by the information of having received a specific sum belonging to the county and of having embezzled the same, where the proof shows that the money was irregularly received by the deputy in part payment of taxes due from a mining corporation, and was fraudulently appropriated by him, he is estopped from denying that he received the money as agent of the county and in trust for the county, and from urging that he received the same as bailee of the mining company, and that there was a variance as to the ownership of the property.</p> <p>Id.—Failure to Collect Whole Tax on Time.—Conceding that it was the official duty of the assessor to have collected the whole tax prior to the part payment received by the deputy, the failure to do so cannot be urged in defense to the charge of embezzlement by the deputy.</p> <p>Id.—Applicable Instruction—Money Belonging to County.—Where the evidence showed without conflict that the defendant was an agent of the county in receiving money due for the use and benefit of the county, it was proper to instruct the jury that money collected by a county official for the use and benefit of the county belongs to the county.</p> <p>Id.—Testimony of Assessor—Admission by Defendant—Other Acts of Embezzlement.—The testimony of the assessor was admissible to show an admission by the defendant that he was short, and to show that he had committed other acts of embezzlement, for the purpose of showing the intent or guilty knowledge with which defendant committed the act charged.</p> <p>Id.—Irregular Evidence not Prejudicial—Waiver of Objection.—■ Evidence by the assessor, which might have been stricken out as not responsive, but to which no objection was made, and an answer by him without objection to a question calling for the conclusion of the witness, could not be prejudicially erroneous where there is no controversy as to the main facts showing the defendant’s guilt.</p> <p>Id.—Postponement of Sentence—Trial for Similar Offense.—The court properly postponed the time for sentence, to await the result of another trial of the defendant for a similar offense.</p>

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

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

Hiram D. Tuttle, Judge rendering judgment. J. R. Welch, Judge denying motion for new trial. The facts are stated in the opinion of the court.

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

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

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

Court of Los Angeles County, and from an order denying a new trial. Curtis D. Wilbur, Judge. The facts are stated in the opinion of the court.

<p>Mechanic’s Lien—Foreclosure Against Owner—Knowledge of Improvements—Notice to Agent—Support of Finding.—In an action to foreclose a lien for materials furnished under contract with one in possession for the improvement of a building, as against the owner, who was absent during the improvements, and who posted no notice disclaiming responsibility under section 1197 of the Code of Civil Procedure, a finding that the owner had knowledge of the improvements before their completion is sustained by evidence that her son was her authorized agent to collect money due on the contract, and to attend to her business during her absence, and that he had notice of the improvements during the progress of the work, Knowledge of an agent as to matters affecting the property is knowledge of the owner.</p> <p>Id.—Construction of Findings to Support Judgment.—Findings of. the trial court are to receive such construction as will uphold rather than defeat the judgment, and if there is any evidence to support the findings thus construed, the judgment is sustained.</p> <p>Id.—Attorney’s Fee Improperly Allowed.—The allowance of an attorney’s fee incorporated in the judgment foreclosing the lien was improper, and will be ordered stricken therefrom.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County denying a new trial. Prank P. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action fob Breach of Contract—Sale of Olive Oil at Retail—Insufficient Complaint—Construction Against Pleader.—A complaint for breach of contract providing that every wholesaler of plaintiff’s brand of pure olive oil, if he retails them, will maintain the fixed retail prices fixed by plaintiff, which merely alleges a breach in selling the oil at less than the fixed prices, without alleging that the defendant sold the oil at retail, is insufficient, and under the recognized rule that the pleading is to be construed most strongly against the pleader, a general demurrer to the complaint was properly sustained.</p>

<p>Principal and Agent—Fiduciary Relation—Fraudulent Acquisition op Property op Principal.—The relation of an agent to his principal is fiduciary in its nature, and he is bound to treat with his principal concerning the property over which he has been invested with authority in the utmost good faith, and if he fails to show such good faith affirmatively, a transaction whereby the agent acquired the ownership thereof is deemed by the law to he fraudulent.</p> <p>Id.—Authority op Agent to Sell—Fraudulent Use op Purchaser’s Name—Purchase por Agent and Relatives—Trust—Support op Findings.—Where the evidence, notwithstanding conflict, supports findings to the effect that the agent who was authorized to' sell the principal’s property, and being in fact her agent and holding himself out to the seller as such without interest in the property, and pretending to have received a deposit from the nominal purchaser which he had not received, and pretending to have found a purchaser which he had not found, induced the owner, whom he pretended to represent, to convey the property to the supposed purchaser, whereas in fact it was his purpose, by circuitous and surreptitious means adopted by Mm, to purchase the property for lira-self and his relatives, the principal is entitled to enforce a trust against the agent and the pretended purchaser to whom the property was conveyed.</p> <p>Id.—Constructive Ríaud—Value oe Land Immaterial.—Where the case made by the complaint and proof was founded on constructive fraud, it is immaterial whether the land had increased or diminished in value after the transaction, and the court properly refused evidence for the defendants as to the value of the property.</p>

<p>Criminal Law—Misdemeanor—Undertaking on Appeal—Construction—Fine with Alternate Imprisonment.—Where one convicted of misdemeanor by a magistrate was adjudged to pay a fine of $500 and be imprisoned for. thirty days, and in default of payment of such fine that he be imprisoned at the rate of one dollar a day for each dollar of fine, an undertaking on appeal, in so far as it provides for payment of the fine, may be disregarded, and the validity of the undertaking must be determined by its compliance or noncomplianee with the second subdivision of section 1275 of the Penal Code.</p> <p>Id.—Onerous Provision—Void Undertaking.—Where the statute requires that if judgment of imprisonment has been given, the undertaking on appeal must agree that the defendant will surrender himself in execution of the judgment upon its being affirmed or modified, or upon the appeal being dismissed, an undertaking which provides that in case the judgment be affirmed or modified, or the appeal be dismissed, the defendant will render himself to said justice in execution of the said judgment of thirty days' imprisonment, and to obey all order and process of said court in fulfillment of such judgment, is more onerous than the statute prescribes, and is void, and no action will lie thereupon.</p>

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

<p>Interpleader-—Judgment Against Plaintiff—Garnishment Levied Under Execution Against Judgment Creditor.—In an action by the plaintiff to compel the defendants to interplead concerning moneys deposited in court under section 386 of the Code of Civil Procedure, where it appears that defendant-appellant had a judgment against plaintiff, and that defendant-respondent had levied an execution upon a prior judgment against defendant-appellant, garnisheeing all moneys due from plaintiff to defendant-appellant, judgment was properly rendered in favor of defendant-respondent against defendant-appellant for the payment of the judgment against him out of the money in court.</p> <p>Id.—Execution After Lapse of Five Years—Affidavits Without Notice.—An execution was properly issued on the prior judgment in favor of defendant-respondent, against defendant-appellant, upon affidavits, without notice, under section 685 of the Code of Civil Procedure.</p> <p>Id.—Second Levy—Prior Levy not Waived.—The issuance and levy of a second execution on the moneys due from plaintiff to defendant-appellant did not waive the rights acquired by the first levy, which was complete and regular.</p> <p>Id.—Loss of Attachment and Judgment Lien.—An attachment lien on property of the defendant-appellant was merged in the judgment docketed against him, and both liens were wholly lost by the lapse of five years from the date of the judgment. The loss of such liens did not preclude the issuance of execution after the lapse of five years upon a showing by affidavits.</p>

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

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

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

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

<p>Divorce—Judgment of Nonsuit—Maintenance—Counsel Fees— Prior Oral Reservation not Expressed—Loss of Jurisdiction to Amend.—In an action of divorce, notwithstanding, when a. non-suit was granted, an oral reservation was made of the right of plaintiff to move in future for maintenance and counsel fees, yet where the judgment for nonsuit was finally entered without expressing therein such reservation, the court lost jurisdiction subsequently to amend the same, so as to express such reservation therein nunc ;pro tunc.</p> <p>Id.—Judicial Error, How Corrected.—Any judicial error committed in rendering the judgment cannot be corrected by amendment, but can only be remedied by appeal or motion for a new trial.</p> <p>Id.—Power to Amend Under Code Inapplicable.—The power conferred upon the court by section 473 of the Code of Civil Procedure to amend a judgment entered through mistake, inadvertence surprise or excusable neglect, is not applicable, where the facts show that there is no element of mistake, inadvertence, surprise, or excusable neglect in the case.</p>

<p>Street Improvement—"Vrooman Act—Contract for Sewer—Payment from Assessments—City not Liable—Eight Hour Law Inapplicable.—A contract to improve a street by the construction of a sewer, awarded under the Vrooman Act, which stipulates that the entire cost is to be paid from assessments levied upon the property contiguous to the line of the work, and that in no case shall the city be liable for any portion of the work, does not fall within the provision of section 653e of the Penal Code, requiring a contract for a street improvement to stipulate for the employment of laborers at eight hours a day, and to provide for forfeiture of $10 per day for violation thereof, to be retained out of moneys due from the city as party to the contract, to the contractor.</p> <p>Id.—Presumption—Intention of Legislature.—It must be presumed that section 653e of the Penal Code was intended by the legislature to apply only in those cases where the penalty or forfeiture could be enforced against the contractor in the manner designated therein.</p> <p>Id.—Mandamus to Street Superintendent.—Where the eight hour law is inapplicable to the construction of a sewer, mandamus will lie to compel the city superintendent of streets to execute the contract therefor awarded to the petitioner, though it contains no provision on the subject of the eight hour law.</p>

<p>Unlawful Detainer.—Expiration of Lease—Tenancy from Month to Month—Parol Contract—Support of Verdict—Conflicting Evidence.—Where an action of unlawful detainer was brought within a month after the expiration of a written lease, and' the evidence was conflicting as to whether there was a parol contract creating a tenancy from month to month between the defendant and the attorney in fact of plaintiff, a verdict for the defendant was sufficiently supported, and will not be disturbed upon appeal.</p> <p>Id.—Effect of Oral Contract—Pending Lease—Term in Future not Specified.—The fact that the oral contract for a future term was made pending the term of the written lease, and called for a payment of rent by the month, without specifying the duration of the future term,' did not involve the varying of the terms o’f the written lease by parol evidence, and did not create presumptively a void future term for one year, within section 1943 of the Civil Code, at an annual rental, but created a tenancy from month to month.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court. "</p>

PETITION for writ of prohibition to the Superior Court of the City and County of San Francisco. E. P. Mogan, Judge. The facts are stated in the opinion of the court.

<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>Conveyance—Implied Covenant Against Encumbrance—Lease— Construction oe Deed and Assignment—Deed Subject to Lease —Finding Against Evidence.—Although a lease is an encumbrance within the covenants implied by the use of the word “grant” in a conveyance in fee simple, yet where it appears from the evidence that at the time of the delivery of the deed, and as part of the same transaction, the plaintiff, who is suing upon a breach of the implied covenant, required and obtained the assignment of the lease, the deed and assignment must be construed as one instrument, and the deed must be held subject to the lease; and a finding to the contrary is against the evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Monterey County, and from an order denying a motion for a new trial. B. V. Sargent, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Findings—Relation to Pleadings—Certainty.—When the answer consists of denials only, a general finding that all of the allegations of the complaint are true is sufficiently definite and certain. Such general finding loses none of its clearness and certainty by the addition thereto of specific findings in favor of the plaintiff in relation to facts covered by the general finding, and not inconsistent therewith.</p> <p>Sale op Real Estate—Action for Brokers’ Commission—Assignment by Mortgagor—Contract with Mortgagee—Agency— Ratification.—In an action by the assignees of a mortgagor to recover brokers’ commission upon a sale of real estate against the mortgagee, which, in consideration of a deed to the mortgagee, had authorized the mortgagor to sell the property for any amount in excess of the amount due to the mortgagee, and to have the benefit of such excess, where it appeared that the mortgagor had previously employed the plaintiffs as brokers to sell the property, and his assignment of the contract with the mortgagee to them was ratified and assented to by the mortgagee, the mortgagee cannot defend on the ground that the contract with the mortgagor created an agency and was not assignable.</p> <p>Id.—Breach of Contract—Rights of Mortgagor and Assignee—Liability of Mortgagee.—When the mortgagee by its conduct placed it out of its power to convey the property to the customer of the mortgagor, had he made the sale, the mortgagee would, upon tender of the money and refusal to convey, become at once liable to the mortgagor for the excess agreed upon; and such were the rights of his assignees when they made the sale, tender and demand for deed.</p>

<p>Negligence—Collision of Wagon With Bicycle Eider.—Where a bicycle rider was properly riding on a well-defined bicycle path on the extreme right of a public street near the sidewalk, the driver of a delivery wagon going in the opposite direction, or who swung to the left across the path of the bicycle rider, is charged by law with the duty of careful observation of the situation, so as to avoid a collision, and inattention of the driver leading to a collision with, and injury to, the bicycle rider is not to be excused, and his employers are liable for the resulting injury.</p> <p>Id.—Instruction—Code Provision—Passage to Eight.—It was proper to instruct the jury in the language of part of section 2931 of the Political Code "that where vehicles meet the driver of each must turn seasonably to the right of the center of the highway so as to pass without interference.’ ’</p> <p>Id.—Contingency—Passage to Left fob Special Purpose—Duty of Cabe.—The jury could not misapply the general rule to the contingency which was covered by another instruction that “a person may lawfully pass on the left side of a highway or across it for the purpose of turning to the house or store, but it is his duty in passing from one side of the road to the other to use reasonable care to avoid injuries to other travelers upon the highway.”</p> <p>Id.—Pertinency of Instructions.—An instruction may properly be given in harmony with the facts testified to by the plaintiff/ where it is hypothetical and pertinent, and that a different theory may also find support in the evidence is not a valid ground of objection to such instruction. The same rule applies to an instruction based upon the evidence and inferences favorable to the defendant.</p> <p>Id.—Burden of Proof—Negligence—Contributory Negligence.—The court properly instructed the jury that “in an action for injuries alleged to have been caused by the negligence of the defendant, it is sufficient for the plaintiff to show, in the first instance, that the injury resulted from the negligence of the defendant, and need not show a want of contributory negligence in himself. Contributory negligence is an affirmative defense to be established by the defendant, and such contributory negligence must be shown by a preponderance of the evidence to have been the proximate cause of the plaintiff’s injury.”</p> <p>Id.—Contingency as to Plaintiff’s Evidence.—The contingency that contributory negligence might appear from the plaintiff's evidence is sufficiently covered by an instruction at defendant’s request “that if you believe from the evidence that the accident and injuries complained of by the plaintiff herein were caused by the contributory negligence and want of care of the plaintiff, then the plaintiff cannot recover, and your verdict must be for the defendant.”</p> <p>Id.—Bequests Properly Bbfused.—Bequests substantially covered by the charge, or clearly implied in the instruction given, or ignoring a vital element in the case, were properly refused.</p>

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

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

<p>Principal and Surety—Official Bond—Payment by Sureties to United States—Claim Against Distributees of Deceased Co-surety—Subrogation.—Where sureties on the official bond of a federal collector paid a judgment of the United States against them, they are entitled to enforce contribution against the distributees of the estate of a deceased cosurety, and to be subrogated to the rights of the United States against such distributees, including exemption from the necessity of -presenting any claim against the estate.</p> <p>Id.—-Failure of Sureties to Present Claim—United States not -Subject to Limitations.—The failure of the sureties to present a claim against the estate of a deceased cosurety cannot bar their rights, where they assert subrogation to the rights of the United States, which is exempt from all statutes of limitation, and might enforce its rights directly against the distributees of the estate.</p>

<p>Negligence—Unsafe Machine—Evidence—Prior and Subsequent Condition—Repairs.—In an action for damages for injuries caused by the negligence of the defendant, as an employer, in furnishing an unsafe machine for the performance of plaintiff’s duties as servant, evidence that the machine had formerly passed through a fire and been repaired, and that a few days before and after the accident, it was in an unsafe condition, and that it was then repaired and adjusted by the defendant, and that the repairs were the result of a minute examination of the machine by an expert mechanic, which demonstrated their necessity, was admissible, as tending to show the unsafe condition of the machine at the time of the accident.</p> <p>Id.—Remoteness of Evidence—Weight of Evidence.—The remoteness of the evidence usually goes to the weight and not to admissibility of the evidence.</p> <p>Id.—Evidence of Subsequent Repairs—Defendant not Prejudiced— Procuring View by Jury.—Though'it is established law that mere subsequent repairs after the accident are inadmissible to establish a negligent condition at the time of the accident, yet where the condition of the machine, independently of the repairs, is first shown, and the necessity of the repairs is made apparent, evidence of such repairs could not prejudice the defendant, especially where the defendant, after the repairs, procured an order that the jury should view and inspect the machine, in effect thereby representing that the machine was in the same condition in which it was at the time of the accident, thereby curing any error in the evidence of repairs.</p> <p>Id.—Instructions—Limitation to Time of Injury—Request Properly Refused.—The defendant was entitled to have the jury instructed that prior and subsequent unsafety of the machine can only be considered as bearing upon its unsafety at the time of the injury. Where the court gave such instructions, it was proper to refuse a requested instruction by the defendant which did not include the right to offer subsequent evidence of unsafety within a reasonable time, as bearing upon the question of unsafety when the injury occurred.</p> <p>Id.—Foreman Representative of Employer—Adjustment of Machine—Improper Request.—Held, that, under the circumstances of this case as presented by the record, the foreman was not merely a fellow-workman of the plaintiff, but was the. representative and agent of the employer whose duty it was to repair and adjust the machine. Instructions asked upon the theory of the plaintiff’s duty to adjust the machine were properly refused.</p> <p>Id.—Sufficiency of Evidence—Unsafety of Machinery—Negligence.—If it be shown by satisfactory evidence that the machinery furnished to the employee was not reasonably safe in its operation, and through some defect it was rendered dangerous, which fact was known to the employer, it is not essential that the injured party should show technically wherein the defect existed, and what occasioned, in a precise manner, the unsafe condition of the machinery. The evidence is held sufficient to warrant the jury in finding that negligence was shown on the part of the defendant, and that no contributory negligence of the plaintiff was made to appear.</p>

<p>Deed—Delivery to Grantee—Presumption—Burden of Proof—■ Strong Evidence Required to Rebut Presumption.—Although a deed may be placed in the manual possession of the grantee without constituting a delivery, yet, when it appears that a deed signed and acknowledged by the grantor has been placed in the hands of the grantee, a prima facie case or presumption of delivery is established throwing the burden of proof on him who would rebut said presumption, to show by strong evidence that there was no delivery.</p> <p>Ib.—Delivery op Deed to Husband—Homestead Declared by Wipe Fed by Deed.—Where there was no sufficient evidence to overcome the presumption arising from delivery of a deed to the husband as grantee, the title so acquired by him fed a homestead previously declared by the plaintiff thereupon as his wife, while they were residing upon the property, under a contract of purchase.</p> <p>Id.—Void Deed by Husband.—Where the community property is subject to a homestead, a deed executed thereof by the husband alone to a third party is void and of no effect.</p> <p>Id.—Divorce by Husband—Adultery op Wipe—Property Set Apart to Husband in General Terms—Homestead Carried.—Where a divorce was granted to the husband for adultery of the wife, the court had power to set aside the whole property to the husband, both separate and community property, including the homestead thereon, in general terms, without specifically describing the property. A decree adjudging that the husband, as plaintiff, is “entitled to the benefit and disposition of all property and money now belonging to him or in his hands, and the defendant has no right thereto or therein, or claim in or upon the same, or any part thereof,” is broad enough to include community property and a homestead selected therefrom by the wife as well as the separate property of the husband.</p> <p>Id.-—-Wipe Estopped by Decree.—If the wife f,elt aggrieved by the finding or judgment, she should have attacked them in the appropriate manner; and not having done so, she cannot be heard to say that she has any interest in the community property diverted from her by the decree of divorce.</p>

<p>State Lands—Reclaimed Swamp Lands—Time of Contest.—Notwithstanding the right conferred to obtain a patent from the state of lands which have been fully reclaimed as swamp and overflowed lands, a contest may be instituted in reference to such lands upon a conflicting application at any time before a patent has been granted.</p> <p>Id.—Order of Reference—Patent not Allowable Until Determination of Contest—Sleeping upon Rights—Mandamus.—When the surveyor general has made an order of reference of a contest as to the right to purchase reclaimed state swamp lands, a patent cannot issue until the contest is determined; and pending the same mandamus will not lie to compel the issuance of a patent, although there was a period before the order of reference when a patent might have been obtained by the reclaiming party, who slept upon her rights until it was too late.</p> <p>Id.—Disposition of State Lands—Law Part of Contract.—The disposition of state lands is one entirely of legislative control; and the law enters into and becomes part of the contract with the state. The applicant cannot, because of a supposed vested right to a patent, prevent and nullify a contest already instituted and referred to the courts, as required by the law, before the patent was obtained.</p> <p>Id.—Mandamus—Duty Enjoined by Law—Adequate Remedy.—Mandamus will only lie to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; and it will not lie where an adequate remedy is provided by law.</p>

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

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

<p>APPLICATION for writ of habeas corpus to the keeper of the city jail of the City of San Diego.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a decree of the Superior Court of Siskiyou County, making final distribution of the estate of a deceased person, to the grantee of the sole heir. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

John E. Raker, Judge. The main facts are stated in the opinion of the court. Three notices of appeal wére filed, one by the state, one by the county treasurer, and one by the district attorney.

<p>Criminal Law—Assault With Intent to Commit Eape—Sufficiency of Evidence.—Upon a prosecution for an assault with intent to commit rape, where the evidence shows an assault, attended with force and violence, upon a wife in bed with her husband, with a threat to kill them both if they did not keep a blanket over their faces which the defendant had put over them with the declared intent to have sexual intercourse with the wife, and every act and circumstance surrounding the transaction is inconsistent with any inference other than an intent on the part of the defendant to use such force and violence as he might deem necessary to the accomplishment of his expressed purpose, the evidence is sufficient to sustain a verdict of guilty of the offense charged.</p> <p>Id.—Intent, How Determined—Question for Jury.—In such case the intent is to be determined by and from the acts committed; and it is a question for the jury to determine what particular intent follows from those acts.</p> <p>Id.—Escape of Husband—Abandonment of Undertaking.—Where, while attempting to consummate the offense, the husband escaped by jumping through a window, the fact that the defendant then abandoned the undertaking in no wise affects the case.</p>

<p>Criminal Law—Sufficiency of Information—Bobbery—Grand Larceny.—An information for robbery, which merely charges that the defendant did, from the immediate presence of the person whose property was taken, by means of fear and against the will of the said person, take, steal and carry away certain property of the value of $1,026, of the personal property of said person, without charging that the property was taken from his person or was in his possession, is insufficient to charge the crime of robbery, but sufficiently charges the crime of grand larceny.</p> <p>Id.—Improper Conviction for Bobbery—Reversal—Once in Jeopardy —Discharge of Defendant.—A conviction of robbery under such information is excessive, and must be reversed; but since the defendant has been once in jeopardy under the information, and a new trial would be a useless proceeding, the defendant must be discharged from custody.</p>

<p>Homestead—Separate Property op Wife—Joint Title—Survivor-ship.—Where a homestead was selected and properly declared by the wife upon her separate property, for the benefit of herself and husband, they became vested with a joint title, which, upon the death of either, will vest absolutely in the survivor.</p> <p>Id.—Prune Crop Grown upon Homestead—Title Vested in Husband —Sale by Husband—Levy op Execution Against Wife Ineffective—Where, by agreement between the husband and wife, the husband was to do all the work and bear all the expense of cultivating and caring for the homestead premises, and the crops grown thereon were to belong to him, and he sold the growing crop of prunes thereon for value to a partnership, to whose rights plaintiff succeeded, and the crops were gathered by the husband for delivery to his vendee, and were in the husband’s possession, a levy thereon on execution against the wife was ineffective as against the husband and his vendees.</p> <p>Id.—Claim and Delivery by Successor Against Sheriff—Finding not Assailed—Ownership and Possession op Husband.—In an action of claim and delivery by plaintiff as successor in interest of the husband against the sheriff who levied execution on the judgment against the wife, where the judgment was for the plaintiff, and a finding that the husband was the owner and in possession of the growing prune crop when he sold the same to plaintiff's predecessor was not assailed on motion for new trial, it must be taken as true.</p> <p>id.—Husband not Indebted—Immediate Delivery to Vendee not Bequired.—Where it does not appear that the husband was indebted to anyone when he made the sale to the predecessors of plaintiff, the provision of sections 3440 and 3442 of the Civil Code have no application to the husband’s sale of the prune crop.</p> <p>Id.—Sale op Growing Crop—Delivery not Bequired.—Growing crops are chattels not susceptible of manual delivery until harvested, and are not in the possession or under the control of the vendor within the meaning of the statute requiring an immediate delivery and continued change of possession.</p> <p>Id.—Sale by Wipe to Husband—Possession op Husband When Harvested.—The sale of the wife’s interest in all the crops in consideration of his care and cultivation thereof sufficiently vested title in him to the growing crop, and when he gathered the same on premises of which he had a joint possession, at his entire expense, and exercised exclusive dominion over the harvested crop, the facts show an immediate and continued change of possession of the harvested crop in the husband.</p> <p>Id.—Delivery and Change of Possession—Question of Pact.—What constitutes an immediate delivery and actual and continued change of possession is a question of fact to be determined upon the evidence in each particular ease.</p> <p>Id.—Valuable Consideration Between Husband and Wife—Labor and Expense.—The labor and expense incurred and to be incurred by the husband in cultivating and caring for the premises was a valuable consideration for the transfer to him of the interest of the wife in the prunes to be grown upon the homestead premises. The transfer was not, therefore, fraudulent as matter of law, as one made by an insolvent without valuable consideration, under section 3442 of the Code of Civil Procedure.</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>Homestead—Separate Property or Husband—Survivorship—Exemption prom Forced Sale—-Title—Cessation or Homestead.— Where a homestead was declared by a husband and his former wife upon his separate estate, in the event of her death, the legal title to the homestead vested absolutely in the husband, carrying with it, however, the immunity, for his sole benefit, of exemption from forced sale, which immunity affected not the title, but merely the enjoyment of it, and in all other respects the homestead ceased to exist.</p> <p>Id.—Second Wife—Hew Declaration of Homestead—Survivorship of Wife—Assignment of Homestead Out of Estate.—The sole privilege of exemption of the homestead from forced sale enjoyed by the husband after the death of the former wife could not inure to the benefit of his second wife, and it was proper that a new declaration of homestead should be made by them, and in case of her survivorship, she is entitled to have the new homestead set apart to her absolutely out of the estate of the deceased husband.</p>