Volume 7 — California Appellate Reports

<p>Appeal—Suit in Equity—Transfer to Supreme Court—Retransfer— Jurisdiction of Motion to Dismiss.—Where an appeal in a suit in equity was taken directly to the supreme court, but by mistake, it being improperly entitled, found its way to the calendar of this court, this court properly transferred the case to the supreme court, without considering a motion to dismiss, which originally could only be heard in the supreme court; but when the cause was properly retransferred to this court for hearing and decision, this court has jurisdiction by such retransfer to hear and determine a motion to dismiss the appeal.</p> <p>Id.—Authority of Special Administrator to Appeal.—A special administrator, whose order of appointment .conferred upon him authority to preserve and protect the estate of a deceased defendant who died after judgment, and who was properly substituted for such defendant in the court below, had authority to appeal to the supreme court in an equity ease, and the appeal cannot be dismissed for his want of capacity to prosecute the appeal.</p> <p>Id.—Appeal from Order Too Late—Service of Hotice After Sixty Days—Dismissal.—Where the appeal from an order denying a new trial was taken too late, in that the notice of appeal was not served within the sixty days’ time required therefor by the terms of sections 939 and 940 of the Code of Civil Procedure as the law stood when the appeal was taken, prior to the adoption of section 941a by the legislation of 1907, the appeal must be dismissed.</p>

<p>Easement—Adverse User—Permissive Use—Question of Fact—Support of Finding.—Where it appears without question that the use of the easement in controversy was open, notorious, peaceable and continuous for the statutory'period, and with the knowledge and acquiescence of the defendants, but appellant claims that the use was permissive and not adverse, and was a license exercised in subordination to appellant’s ownership, the question of the support of a finding in favor of a title by prescription in the respondents is one of fact, not depending upon the burden of proof, and the only question is whether there is any evidence to support the findings.</p> <p>Id.—Presumption of Grant of Easement—Parol Sale of Bight of Way—Adverse Use.—A legal grant of an easement will be presumed on proof of the use and enjoyment thereof for the period of five years. Where there was a parol sale of a right of way for a spur track to respondent’s predecessor, the grantee thereof held adversely to the grantor, and the presumption of a legal grant is equivalent to a presumption that the use was adverse under a claim of a right. This presumption is sufficient evidence to support the finding of title by prescription in the respondent.</p> <p>Id.—Bight of Way for Spur Track—Appurtenance to Manufacturing Plant—Conduct of Appellant.—WFere the conduct of the appellant is consistent only with an understanding that the right of way for a. spur track was an easement owned by respondent’s predecessor as appurtenant to a manufacturing plant, and that appellant so recognized it, such conduct is a potential circumstance in determining the character of the use of the easement; and the court was authorized to find that the use was adverse under a claim of right, as against the mere testimony of appellant that it was permissive.</p> <p>Id.—Parol Sale—Price not Paid.—Where the evidence shows an attempt by parol agreement to sell the right of way, and not merely an agreement to sell in future, and the subsequent conduct of the parties shows that they considered the transaction a sale, it does not affect the case that the price was not paid, or that appellant’s predecessor became insolvent and was not able to pay its debts in full.</p> <p>Id.—Bule as to Parol Gift or Grant—Possession and Use—Absolute Title.—A parol gift or grant of the right of way for an easement followed by possession, use apd enjoyment of it with the knowledge of the grantor or donor for over five years, invests the grantee or donee with an absolute title to the right of way or easement.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County and from an order denying a new trial. J. Q. White, 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>P. EL Thompson, Clarence Meily, and Goldberg & Meily, for Appellant.</p>

<p>Cbeminal Law—Grand Larceny—Stealing of Horse—Support of Verdict.—Held, that the evidence reviewed is convincingly sufficient to support a verdict of guilty of grand larceny committed by the defendant and his nephew in the stealing of a horse from a ranch where it was pastured, and selling the same under false pretenses.</p> <p>Id.—Possession of Stolen Property—Instructions not Prejudicial. Seld, that the instruction relating to the possession of stolen property by the defendant was in the main correct; and that the judgment will not be reversed for any possible error therein, when looking at the testimony it can be seen that the jury could not have been misled thereby to the prejudice of the defendant.</p> <p>Id.—Exclusive Possession as a Circumstance—Particeps Crimines.— The rule that the recent possession of stolen property, unexplained, is a circumstance tending to show guilt does not require exclusive possession by the defendant in the strict sense. The rule is satisfied if the possession is exclusive as to all not partieeps crvminis. As to the latter class, the possession of one is the possession of each and all.</p>

<p>Criminal Law—Perjury—Instructions—Materiality of False Testimony—Effect of Charge.—-Where certain statements were set out at length in the information for perjury, which were material under the issues raised by the pleadings in the action in which the perjury was committed, a charge to the jury that unless it found such statements were testified to by the defendant and that they were false, they , should acquit, could only in effect be á charge that such statements only were material; and a further charge that if the jury found all of the statements contained in the information to have been false it should convict could not prejudice the defendant, if some of the statements were immaterial, for ,if the material matters were established, the falsity of immaterial matters could not prejudice the defendant.</p> <p>Id.—Evidence Properly Befused—Impeachment of Witness by Particular Acts.—The court properly rejected testimony to show that a witness had been guilty of adultery shortly before'offering herself as a witness, and that her husband administered punishment to a man found in her room. Such acts did not bear upon the matter in issue.</p> <p>Id.—Credibility of Defendant as a Witness—Instruction Properly . Befused.—The court properly refused a charge requested by defendant in relation to his credibility as a witness.</p>

<p>Trees Forming Boundary Line—Tenants in Common.—Line trees whose trunks stand partly on the land of two coterminous owners and form the boundary line between them are held by them as tenants in common.</p> <p>B>.—Waste.—Neither of the coterminous owners is at liberty to cut any of the line trees without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the trees. Each owner in common has the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.</p> <p>Id.—Cypress Trees Between Orange Orchards—Judicial Notice— Presumption—Injunction Against Waste.—The court will' take judicial notice of the flora and climatic conditions of the country; and it will be presumed that the cutting down of cypress trees for firewood on the boundary line between orange orchards in Southern California is not a legitimate enjoyment of the estate in such trees by one of the tenants in common, and injunction will lie to prevent the cutting down, injuring or destroying any of the remaining trees growing on the line.</p>

<p>The facts are stated, in the opinion of the court.</p> <p>J. J. Scrivner, Alfred H. Cohen, and Lawler, Allen & Van Dyke, for Appellants.</p>

<p>Obdeb fob Payment of Past of Ponds—Equitable Assignment not Effected—Revocation Before Acceptance.—An order for pay- ' ment of part of the funds of the maker in the hands of a third party does not operate as an equitable assignment pro tanto of the fund, while the order remains unaccepted by the holder of the funds, and such order may be revoked at the pleasure of the maker at any time before acceptance by the party on whom it is drawn.</p> <p>Id.—Action not Permissible Afteb Notice of Revocation.—After notice of revocation of the order by the maker to the party on whom it is drawn, and the refusal of said party thereafter to accept or pay the same, no action will lie upon the order either against the maker or against the holder of the funds.</p> <p>Id.—Duress of Goods—Illegal Attachment—Rescission.—Where the order was procured by the plaintiff under durgss of an Illegal attachment of the hay of the maker of the order, out of the proceeds of the sale of which the funds were derived, and the order was given to release the hay from such duress in order that the hay might be sold, the plaintiff had the right promptly, to rescind the order, and to notify the holder of the proceeds of the hay not to pay the same.</p> <p>Id.—"Void Attachment by Justice Improperly Called in—Want off Jurisdiction.—Another justice of the peace cannot be called in to act during the illness of the justice of the peace of -the township, in which the plaintiff resides, mthout a written request from such justice; and a mere oral request by him to the plaintiff to secure the attendance of such justice could confer upon him no jurisdiction in such township to issue a writ of attachment upon the hay of the defendant; and the unlawful "detention of the hay under such void writ constitutes duress thereof, entitling plaintiff to rescind an order given to secure the release of the hay from such duress.</p> <p>Id.—Restoration upon Rescission not Required.—There being nothing to restore upon rescission of the order, no restoration was required to effect a rescission thereof.</p>

<p>Action to Quiet Title—Patented State Lands—Em® Division— Support of Findings and Judgment.—In an action to quiet title to patented state lands lying on the east side of Bangs river, under a patent .covering lands on both sides of that river, where plaintiff deraigned title to the lands claimed, and the evidence showed that the claim of the defendant Samuel thereto was without right, and that his title was limited to lands on the west side of the river, findings and judgment for the plaintiff are properly supported.</p> <p>Id.—Construction and Effect of Deed to Defendants’ Predecessor —Deed Prepared for Grantee—Ambiguous Description.—Where the whole patented land comprised 189.20 acres of swamp land in sections 27 and 28 of a certain township and range on both sides of Kings river, a deed from the patentee to defendant Samuel’s predecessor, which was prepared by counsel for the grantee, and which described the whole land by metes and bounds, but limited the acreage granted to 69.53 acres, and following the general description was the clause: “This conveyance intends to convey all the swamp and overflowed land in sections 27 and 28 lying west of the river,” such clause cannot be rejected as inconsistent with the prior description; nor does the rule of construction in favor of the grantee apply, but any ambiguity must be resolved against the grantee who caused it to exist.</p> <p>Id.—Extrinsic! Evidence—Conflict to be Determined by Trial Court.—Extrinsic evidence was admissible to show that the original sale to the grantee was of 69.53 acres lying on the west side of the river at the price of $25 per acre; that the grantee took possession only of such land, and any conflicting evidence as to whether the grantee claimed any land on the east side of the river was to be determined by the trial court, which was warranted from the evidence in concluding that the grantee took no lands east of the river, and could convey none.</p> <p>Id.—Tax Title of East Lands—Void Deed—Want of Notice Required by Law.—Where the defendant relied upon a tax title to the land on. the east side of the river, the validity of such title must be governed by -the law in force at the time of the sale; and where the sale was made under the act of March 19, 1891, requiring the purchaser thirty days prior to the expiration of the time for redemption, or prior to application for a deed to serve the owner with a written notice, to be recorded and proved by affidavit, in case of the want of such notice and proof, the deed was void and passed no title.</p> <p>Id.—Requirement of Notice Applies to State.—The requirement of notice under the act of 1891 applies to the state as well as to a private purchaser, and the state can acquire no title or pass one, unless such notice is given.</p> <p>Id.—Burden of Proof.—One relying upon a tax deed is bound to establish the giving of the statutory notice as part of the proof of title.</p> <p>Id.—Lost Deed—Secondary Evidence.—Where plaintiff showed that diligent search had been made for a lost or misplaced deed, and the same could not be found, secondary evidence of its contents is admissible, though the lost instrument may still gxist.</p> <p>Id.—Seasonable Diligence in Search.—Seasonable diligence in making the search for a lost or misplaced deed does not require the exploration of all possible places where the instrument might be.</p> <p>Id.—Circumstances to be Considered—Discretion of Judge.—The surrounding circumstances and facts are to be considered, and the weight to be given to them is largely within the discretion of the trial judge. ' In this case, it is held that there was a sufficient foundation laid to admit the secondary evidence of the lost deed.</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>Corporations—Authority of President—Surrender of Hotel Lease —Breach of Contract—Defective Execution—Acceptance of Benefits—Estoppel.—In an action based upon a breach of contract with a corporation, whereby the plaintiff, who was lessee of its hotel property, agreed to cancel the lease, and turn over the furnishings, in consideration of its contract, executed by its president, to pay him certain sums, and to furnish him room and board for one year, or at its option to pay him $25 per month in lieu thereof, whereupon the corporation released the property and repudiated the contract, where the evidence sufficiently shows that the president of the corporation was held out by the corporation as possessing the authority which he assumed, even if the contract was defectively executed, the acceptance of the benefits thereof by the corporation, though not constituting a ratification, nevertheless constituted an estoppel against the repudiation of the contract by the corporation.</p> <p>Id.—Evidence—Implied Powers of President—Managing Agent.— Evidence was admissible to prove that the president was operating the business of the corporation, to show his implied powers, and that he was managing agent of the corporation.</p>

<p>Appeal—Beview—Opinion of Trial Judge.—The opinion of the trial judge constitutes no part of the record upon appeal; and assuming the reasons assigned for his rulings to be erroneous, error cannot be predicated thereon.</p> <p>Specific Performance—Contract of Sale—Defense—Deformation —Contemporaneous Oral. Agreement—Opinion—Evidence—Finding.—In an action for specific performance of a contract to convey real estate, where the defendant sought a reformation of the contract in omitting therefrom by alleged mistake a contemporaneous oral agreement, whatever opinion the trial court may have entertained as to the propriety of admitting testimony of such contemporaneous oral agreement, it is sufficient that the record shows that all evidence offered in support thereof was received, and that the same was contradicted by the plaintiff, and that a finding was made thereon for the plaintiff.</p> <p>Id.—Performance of Contract by Plaintiff—Condition as to Bemoval of Mill—Extension of Time—Estoppel—Denial of Non-suit.—Where the testimony for the plaintiff made out a prima facie case showing that he had fully complied with the contract of sale on his part, within the limits allowed in the contract, except as to a condition of the removal of a planing-mill within thirty days, but as to that the evidence showed that, six days before the expiration of such time, defendant, at plaintiff’s request, extended the time for such removal, and that plaintiff relied upon such extension and removed the mill within the extended time, after the lapse of the thirty days, the defendant was thereby estopped from exacting a strict performance of such condition, and his motion for a nonsuit was properly denied.</p> <p>Id.—Payment of Money to Agent of Defendant—Deposit to Defendant’s Credit—Notice.—Where the purchase had been made through an agent for the defendant, and a portion of the purchase money was paid to such agent, it is immaterial whether the agent was authorized to receive the money or not, where it appears that he deposited the same in bank to defendant’s credit, of which fact defendant had notice.</p> <p>Id. —Substantial Conflict of Evidence—Support of Findings.— WTiere there is a substantial conflict of evidence as to all of the issues, the findings of the trial court thereon must be sustained.</p>

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

<p>Disqualified Judges—Transfer of Cause—Affidavits.—Where it appears from uncontradicted affidavits that both the judges of the superior court of the county of the venue were disqualified for interest, and that the judge of the nearest and most accessible county was likewise disqualified for interest, the disqualified judge before whom the case is presented has no' discretion, and must perform the duty imposed by section 398 of the Code of Civil Procedure, and transfer the cause for trial to the nearest' and most accessible court, where the like objection or cause for making the order does not exist.</p> <p>Id.—Selection of Judge by Law—Construction of Code.—Section 398 of the Code of Civil Procedure does not confer upon a disqualified judge the right to select a judge, but the law selects the judge, when the undisputed facts are before, the court.</p>

<p>Action upon Undertaking—Cause or Action Against Surety not Alleged—Execution and Delivery ot Undertaking.—If a complaint on an undertaking against a surety fails to allege or show that the defendant executed or delivered the undertaking, it does not state a cause of action, and a general demurrer thereto should have been sustained.</p> <p>Id.—Leave to Amend upon Beversal.—Where a demurrer which should have been sustained was improperly overruled and judgment improperly rendered for the plaintiff, upon reversal of the judgment the plaintiff will be allowed leave to amend.</p>

<p>The facts are stated in the opinion of the court,</p> <p>U. S. Webb, Attorney General, and Wm. Hoff Cook, Assistant District Attorney, for Appellant.</p>

<p>Criminal Law—Impaneling Jury—Action op Court not Excepted to—Beview upon Appeal.—The action of the court in questioning each of the twelve jurors first drawn in a criminal case, as to his qualifications, and in stating that all of them appeared prima facie qualified, but that either of them could be challenged for any statutory cause, making it clear that counsel had no right to challenge a juror on the voir dire in advance of a challenge to such juror, where no objection or exception appears to have been taken thereto, is not the subject of review upon appeal, whether erroneous or not.</p> <p>Id.—Peremptory Challenges—Examination not Allowed.—The defendant is not entitled to put questions to jurors merely for the purpose of gaining information as to the advisability of exercising peremptory challenges.</p> <p>Id.—Charge op Bobbery—Immaterial Questions.—Where the charge to be tried is one of robbery, questions asked of each juror, whether he had served on a charge of robbery, and how many men he had convicted of robbery, and how long he had served in the criminal department, and as to his age, were properly overruled as incompetent, irrelevant and immaterial to the issue being tried.</p>

<p>Basement Reserved in Deed—Construction—Finding Against Ownership—Question of Law—Review upon Appeal.—Where an easement is reserved in a deed, and the nature of it, whether in gross or as an appurtenance to land, is to be determined by the construction of a deed set forth in the findings, a finding against the ownership of the easement by the successors in interest of the grantor is not a finding of an ultimate fact, to be reviewed only for insufficiency of the evidence, but is of a conclusion of law, and raises a question of law as to the proper construction of the deed, which may be determined from the judgment-roll alone.</p> <p>Id.—Presumption of Appurtenance—Assignability.—An easement reserved in a deed is never presumed to be attached to the person of the grantor, when it can be fairly construed to be appurtenant to some other estate. The reservation is to be interpreted in favor of the grantee, and the easement is to be deemed appurtenant, when the servitude is assignable by its terms, and tends to increase the value of the estate to which it is’attached.</p> <p>Id.—Reservation of Access to Stairway—Future Use for Second Story.—The present reservation of access to a stairway to the second story of a two-story building erected on the land granted, for the benefit of a second story to be erected in future on the adjoining one-story building of the grantor, makes it no less an appurtenance, because not actually used as such at the time of the conveyance.</p> <p>Id.—Effect of Mere Nonuser.—The mere nonuser of an easement reserved in a deed for any length of time will not operate to impar» or defeat the right. I</p> <p>Id,—Right of Grantees to Use of Stairway—Incidental Rights.— The right to the future use of the easement in the stairway, as appurtenant to the land of the grantor, who reserves it as a servitude upon the land of defendant bank, appurtenant to his land, passed with it to his grantees, by his conveyance of the land to them, which carries with it such other incidental rights as were necessary to the full enjoyment of the servitude in defendant’s stairway, upon the addition of a second story to their building.</p> <p>Id.—Effect of Custom and Usage—Barricade not Allowable.— Incidents to be implied from custom and usage, and the conditions surrounding the parties to the contract when it was made, are to be considered by the court; but no custom or usage could sustain the erection or maintenance of a barricade or interference with the free and convenient use of the stairway by plaintiffs and their tenants that would destroy the easement itself.</p> <p>Id.—Reasonable Protection oe Entrance to Stairway.—The question of what is a reasonable protection of the entrance to the stairway is matter for the trial court to consider in the light of the evidence introduced.</p>

Francisco, denying a new trial. M. C. Sloss, Judge. The facts are stated in the opinion of the court. Stoney, Rouleau & Stoney, H. B. Montague, and A. S. Newburgh, for Appellants.

<p>The facts are stated in the opinion of the court.</p> <p>"Win. R. Daingerfield, and James A. Ballentine, for Appellant.</p> <p>Garber, Creswell & Garber, and Morrison & Cope, for Respondents.</p>

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

<p>Principal and Surety—Payment of Note by Surety—Extinguishment—Assumpsit—Statute of Limitations.—The payment of a note by a surety extinguishes the obligation of the principal thereon; and the only remedy of the surety is an action of assumpsit, based upon the implied obligation of the principal for money expended for Ms benefit. Such action is barred by the lapse of two years 'from the payment of the money.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Praneisco, and from order denying a motion in arrest of judgment and denying a new trial. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Conversion—Interest on Value—Value of Use—Erroneous Finding.—In an action for the conversion of personal property, the interest on the value of the property converted, allowed by section 3336 of the Civil Code, is in lieu of the value of the use, and not in addition thereto; and where such interest is allowed, an additional finding as to the value of the use, which is included in the judgment, is erroneous.</p> <p>Id.—Measure of Damages—Construction of Civil Code.—The general rule of section 3333 of the Civil Code, as to damages proximately caused, applies by its terms to cases not otherwise provided for, and the special measure of damages for the conversion of personal property is otherwise provided for in section 3336 of that code.</p> <p>Id.—Order Granting New Trial—Newly Discovered Evidence— Cumulative Effect—Discretion.—Much must be conceded to the discretion of the trial court in granting a new trial for newly discovered evidence, though it may be cumulative. It is for the trial court to determine whether it is of such a character as probably to affect the result on a new trial.</p> <p>Id.—Support op Order.—Where the order granting a new trial is in general terms, it will be sustained if it can be justified on any ground.</p>

<p>Habeas Corpus—Form op Successive Judgments—Conviction op “Felony.”—Where the defendant in two criminal cases was sentenced at the same time to successive terms of imprisonment, the fact that the form of the judgments recited in each case that defendant had been convicted of “felony,” without designating the particular felony, cannot render them insufficient upon habeas corpus.</p> <p>Id.—Hearing upon Former Writ in Superior Court—Order for Discharge not Entered—Power to Vacate.—Where, upon a hearing upon a former writ of habeas corpus in the superior court, an oral order was made -discharging the prisoner, which was not reduced to writing nor entered in the minutes of the court, the court had plenary power, while its action remained within its breast, to vacate the order, and to reserve the application for further action.</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>Action fob Goods Sold—Pleading—Unverified Complaint by Assignor—Demurrer to Answer Improperly Sustained.—In an action for goods sold and delivered by plaintiff’s assignor, where the complaint is unverified, and the answer specifically denies every allegation of the complaint, including the allegation of nonpayment, and of assignment to the plaintiff, and as a separate affirmative defense that defendant was fraudulently induced to sign the writing referred to in the complaint, a general demurrer to the answer, which did not demur to each separate defense, was improperly sustained.</p> <p>Td.—Construction of Answer—Inconsistent Defenses—Admission in One Defense.—The defendant had the right to plead as many defenses as he had, though they may be inconsistent; and an admission made in the affirmative defense cannot qualify or affect the specific denials of the answer.</p>

<p>Election Contest—Election op Ineligible Candidate—Federal Officer.—The election of a candidate by a majority of the votes cast, who was ineligible by reason of his holding the federal office of postmaster at the time of the election, cannot have the effect to cause the election of an eligible candidate having a less number of votes, but must be annulled as invalid.</p> <p>Id.—Costs upon Annulment.—Where an election is annulled upon a contest, a judgment for costs must be rendered in favor of the contesting party against the party whose election was contested.</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>Criminal Law—Larceny op Heifer by General Owner from Special Ownership of Agister.—It is larceny for the general owner of a heifer to steal it from an agister who had taken it from the owner to pasture, for compensation, and who has a special ownership therein for the enforcement of his agister’s lien; and the property may be alleged in the information to he the property of the agister. .</p> <p>Id.—Construction of Penal Code.—The words “personal property of another,” as used in section 484 of the Penal Code, correctly interpreted, means property in the possession of another who is entitled, as bailee or otherwise, to retain possession thereof for some benefit or profit to himself, to the exclusion of all others, rather than the absolute ownership defined by section 679 of the Civil Code.</p> <p>Id.—Larceny from Bailee.—The taking of property by the general owner thereof, from, tha possession of one who rightfully holds it as bailee or otherwise for benefit to himself, with the intent to charge such bailee with the value thereof, or to deprive him of such benefit, constitutes larceny.</p> <p>Id.—Instructions to be Construed Together.—Instructions given are to be construed together; and in charging the jury it is not necessary, in dealing with each particular phase of the case, ■ to repeat all of the conditions and limitations which are to be gathered from the entire text.</p> <p>Id.—Charge to Jury—Presumption or Innocence—Circumstantial Evidence.—Where the court had charged the jury that the “law presumes every man innocent until his guilt is established beyond all reasonable doubt, and this presumption attaches to every fact essential to conviction, ’ ’ such instruction is to be taken in connection with an instruction that “while every fact essential to prove the guilt of the defendant to a moral certainty must be fully proven, the law permits this to be done by circumstantial evidence, and where the evidence is circumstantial, but proves every fact essential to sustain the hypothesis of guilt, and to exclude the hypothesis of innocence, and is inconsistent with any other rational conclusion than that of the guilt of the defendant, the law makes it the duty of the jury to convict the defendant,” and there was no error in such instructions.</p> <p>Id.—Instruction not Pertinent to Evidence—Harmless Error—• Burden upon Appellant.—The giving of an abstractly correct instruction, which is not pertinent to the evidence, is to be regarded as harmless error, where the record upon appeal fails to show how the alleged error could have prejudiced the substantial rights of the defendant, upon whom, as appellant, the burden rests to show such prejudice by the record.</p> <p>Id.—Support of Verdict—Province of Jury and Trial Judge.—Held, that there is sufficient evidence to support the verdict of guilty of larceny as charged in the information, and that the determination as to the weight of conflicting evidence and the credibility of the witnesses were within the province of the jury in the first instance, and in the second, within that of the trial judge in passing upon the motion for a new trial; and where such motion is denied, the verdict will not be disturbed upon appeal.</p> <p>Id.—--Evidence—Arrest of Agister and Former Owner by Thief— Declarations—Wrongful Intent.—Evidence was admissible to show that after defendant had stolen the heifer from the possession of the agister, he declared that he would hold the agister and the former owner of the pasture both responsible for her loss, and that he caused them both to be arrested for stealing the heifer from the pasture—in order to establish the wrongful intent with which he stole the heifer,,</p>

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

<p>Promissory Note—Uncertain Provisions as to Interest—Penal Clause After Maturity—Construction—Intention op Parties. A promissory note made payable three months after daté, with the words written therein, “without interest until paid,” and the words printed at the end, “should not this note be paid at maturity, it shall thereafter bear interest at the rate of two per cent per month,” should be construed so as to give effect to every part, including the penal clause, which must be deemed intended by the parties to modify the first provision so as to mean, “without interest until paid” at or before maturity.</p> <p>Id.—Construction Against Promisor.—Under section 1654 of the Civil Code, an uncertainty in the language of a contract is to be interpreted most strongly against the party who caused the uncertainty to exist, the promisor being presumed to be such party. This rule supports the construction given to the promissory note in question, the promisor having, selected a blank form having a penal clause.</p> <p>Id.—Action upon Note—Computation op Interest—Erroneous Judgment.-—In an action upon the note in question, the proper course in allowing interest is to compute the interest at the rate fixed in the note from its maturity to the date of decision, and add it to the principal, which amount must thereafter bear interest at the legal rate. It was error to provide in the judgment that the note shall bear interest at the rates fixed therein until execution on the judgment.</p>

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

<p>Insolvent Corporation—Accounting and Settlement—Order fob Deposit of Fund in Court—Claim of Plaintiff as Creditor—■ Want of Jurisdiction.—The superior court has no jurisdiction to order the deposit of a fund in court, upon which the plaintiff has a claim, and which is not directly the subject of litigation, but which is involved only incidentally in an action for an accounting and settlement of the affairs of an insolvent corporation, and for the payment of its creditors, of which the plaintiff is one, who also, as secretary of the corporation, was authorized by its directors to sue, collect assets, pay creditors, and distribute the residue of its assets among the stockholders entitled.</p> <p>Id.—Prohibition—Void Order for Deposit—Proceedings for Contempt.—In such action, an order, at the instance of stockholders sued upon unpaid subscriptions to the stock of the insolvent corporation, to compel the payment into court of the whole fund in the hands of the plaintiff, as secretary, to the exclusion of his rights to payment out of the fund as a creditor, is void, and prohibition will lie to prevent the enforcement thereof by proceedings for contempt, for disobedience thereto.</p>

<p>Account Stated—Agency fob Defendant—Want- of Preliminary Proof—Supply of Evidence—Harmless Buling.—Where, in proving a cause of action upon an account stated, it was objected that the account was admitted in evidence without sufficient preliminary-proof of the agency of one who assumed to represent the defendant in agreeing to the account, granting that the ruling was erroneous, it was without prejudice, where proof that he was superintendent and general manager of the defendant corporation was immediately supplied by sufficient evidence.</p> <p>Id.—Order of Proof—Discretion of Court.—The order of proof is largely within the discretion of the trial court, and its action will not be reviewed if no abuse of discretion appears.</p> <p>Id.—Action on Assigned Claim—Stipulation—Proof Hnneoessary. In an action on an assigned claim, where it is stipulated and admitted by defendant at the trial that the amount sued upon for this claim is the correct amount due, no proof is necessary on such claim.</p> <p>Id.—Order for Payment of Whole Fund—Equitable Assignment.— ' An order for the payment of money, which relates to the whole amount of the fund in the hands of the one upon whom it is drawn belonging to the drawer, operates as an equitable assignment of the claim.</p> <p>Id.—Pleading—Indebtedness—Insufficient Denial—Want of Information and Belief.—The defendant must be held to know whether he is indebted to the plaintiff or not, and his denial of the indebtedness, based upon a want of information and belief, raises no issue.</p> <p>Id.—Trifling Sum—Maxim—Support of Finding.—Where a disputed sum is comparatively trifling, the maxim “De minimis lea non curat” may be applied, though the evidence in support of it may seem unsatisfactory to us; yet it is held that it cannot be said that the evidence is insufficient to support a finding as to such sum.</p>

<p>APPEAL from an order of the Superior Court of Butte County, refusing to change the place of trial. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Venue—Selection or County by Plaintiff—Unknown Eesidence of Defendant—Insufficient Affidavit—Eights of Defendants.— The right of the plaintiff to designate the place of trial, where the residence of the defendant is unknown, under section 395 of the Code of Civil Procedure, is not an arbitrary or merely optional right. The plaintiff’s affidavit must show reasonable diligence in seeking in good faith to make the discovery of defendants’ residence, and where he fails to show such diligence, the defendants are entitled of right to have the venue changed to their place of residence, upon proper demand therefor. ■</p>

<p>Action for Monet Deposited—Assignment—General Finding.—In an action by an assignee to recover money deposited by his assignor, where the complaint alleges the assignment, a general finding that all of the allegations of plaintiff's complaint are true is a sufficient finding of the assignment.</p> <p>Id.—Demurrer for Uncertainty—Review upon Appeal.—Although there is enough uncertainty in the complaint to have warranted the court in sustaining the demurrer on that ground, yet the action of the court in overruling it is not of sufficient importance to demand a reversal, after a trial upon the merits.</p> <p>Id.—Effect of Discharge in Bankruptcy—Fiduciary Capacity— Debt of Commission Merchants Barred.—The term “fiduciary capacity” used in the Bankrupt Act of 1898, as amended in 1903, applies only to technical trusts, and not to debts due by a bankrupt in the character of agent, factor, commission merchant and the like; and money deposited with a commission merchant, to cover expenditures, a portion of which remains in his hands unexpended, is covered by his discharge in bankruptcy, and cannot be recovered.</p>

<p>Estates or Deceased Persons—Homestead Selected by Deceased Husband—Survivorship op Wipe—Excess op Subsequent Value not Liable por Debts.—Where a deceased husband in his lifetime selected a homestead from community property, which was not then of the value of $5,000, the homestead, whatever its value, at the death of the husband vested absolutely in his widow, as survivor, free from any general debts of the husband; and any subsequent excess in the value of the homestead above the sum of $5,000 is not liable for any debts of the husband's estate to his creditors, though his estate is otherwise insolvent.</p>

<p>Mechanic's Lien—Extea Labor and Materials—General Finding—• Admission of Answer—Erroneous Judgment.-—In an action to foreclose a mechanic’s lien for the reasonable value of materials and labor performed in extra work in the construction of defendant’s building, of the reasonable value of $217.50, where the answer alleged that the reasonable value of the extra work for which no price was agreed was the sum of $47.25, and no more, a general finding that all of the allegations of the complaint are untrue eannot entitle the defendant to judgment, the plaintiff being entitled to at least a judgment in the sum of $47.25, on the admission of the answer, which no evidence could be received to contradict; and a judgment for the defendant is erroneous, and must be reversed.</p>

<p>Negligence—Collision op Backing Train with Wagon—Support op Verdict.—Uptih a review of the evidence, in am action for damages for personal injuries to a wife, caused by the negligent collision of a backing train with a wagon, with which she was crossing the street, held, that the evidence is sufficient to support, the verdict for the plaintiff, whether the evidence is considered on the theory that the persons in charge'of the backing train had the last clear opportunity to avoid the injury, after the discovery of the peril of the wife, or on the theory that they were grossly negligent in not using any care whatever to learn whether the street crossing was clear before backing the train thereupon.</p> <p>Ib.—Province op Jury—Conflicting Evidence—Credibility op Witnesses.—It was the province of the jury to pass upon all questions of conflicting evidence or inconsistent statements, or the credibility of witnesses, and its verdict cannot be disturbed for insufficiency of the evidence when there is' any evidence to support it.</p> <p>Id.—Instruction Pertinent to Evidence—Duty to Keep Lookout.— An instruction, based upon pertinent evidence as to the attempt of plaintiff to cross when the train was at a standstill, and as to her inability to control her horse, when the train was suddenly backed, to the effect that the law imposed upon the servants of the defendant the duty to keep a lookout, and to observe and ascertain whether the crossing was clear, and that if they failed to do so, and the plaintiff was thereby injured without fault on her part, their verdict should be for the plaintiff, was correctly given.</p> <p>Id.—Evidence—Contradiction of Witness by Party Calling Him— Surprise.—Where a witness called by a party has given testimony damaging to the party producing him, and it appears that the party by whom he has been produced has been misled and taken by surprise, and had reason from his previous statement to believe that the witness would give testimony favorable to his side, there is no reason upon principle why such party should not .be allowed to contradict his own witness, who has betrayed him, and by his unexpected testimony placed the party producing and standing sponsor for him in a false light before the court or jury. The preliminary question of surprise and of the method of proof thereof is in the sound discretion of the trial court.</p> <p>Id.—Question Part of Res Gestae.—A question addressed to the fireman by the engineer, in the presence of the party injured, immediately following the accident: “Why didn’t you tell me to stop ? ’ ’ was asked so near the time the accident occurred as to make it part of the transaction, and admissible under the rule of res gestae. The mere fact that the accident preceded the question does not necessarily take it out of that rule.</p>

The facts showing the original jurisdiction of the supreme court are stated in the opinion of the district court of appeal. On January 10, 1908, the cause was retransferred by the supreme court to the' district court of appeal for decision on the merits, which was rendered January 29, 1908 and is reported post, p. 487, (94 Pac. 779-782).

<p>Judges—Civil Action fob Damages—Failure to Decide Cause Submitted.—A judge of the superior court is not liable to a civil action for damages at suit of any private party, either for any wrongful or malicious or corrupt judicial action, or for an alleged willful, premeditated and intentional omission, failure or refusal to decide a case submitted to Mm for decision, within the period of forty-one days between its submission and Ms resignation of his office as superior judge of the county.</p> <p>Id.-—Time for Decision—Judicial Discretion—Bemedies for Abuse— Public Policy Against Civil Action.—The time within wMch a case should be decided as well as the manner of its decision is a matter of judicial discretion. If its decision is erroneous, or its discretion is abused, it may be remedied by appeal. After a long period of delay, his action, but not the manner of it, may be compelled by mandamus. If his action or omission is influenced by malice, corruption, or other bad motives, he may be impeached, but he cannot, on grounds of public policy, be held liable in an action of damages therefor.</p> <p>Id.—Effect of Constitutional Provision—Personal Inconvenience. The constitutional provision that if a cause submitted is not decided within ninety days, the monthly salary cannot be drawn, has merely the effect of personal inconvenience and nothing more.</p> <p>Id.—Insufficient Complaint—Preparation to Decide ' Case not Shown—Satisfaction of Mind of Judge not Reviewable.—Where the complaint does not show that the judge to whom the case was submitted was prepared to decide it before his resignation, or that his mind had become satisfied as to how the case should be decided, it is wholly insufficient. No other judge or jury would be competent to determine whether his mind had been satisfied as to how the case should be decided when he resigned.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, denying defendant’s motion to change the place of trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action fob Breach of Contract—Employment for Half Time— Stated Term—Wrongful Discharge—Prima Facie Case.—In an action to recover damage for a breach of a contract for employment by the defendant of the plaintiff’s services as a dentist for afternoon service at a monthly salary for a stated term of one year by a wrongful discharge of the plaintiff, the plaintiff established a prima facie ease by proof of the employment, the amount of his salary, and his discharge before the end of his term of employment.</p> <p>Id.—Order of Proof—Rebuttal Evidence in Chief—Reason Given for Discharge—-Harmless Irregularity.—It was no part of the plaintiff’s case in chief to prove that the reason given by defendant for his discharge was that the defendant wished to employ another dentist who was indebted to defendant, but where defendant Bought to prove that plaintiff was discharged for neglect of duty, the plaintiff was entitled to rebut such evidence by proof that they assigned another reason for the discharge, .and the fact that he offered such rebuttal evidence in chief became a harmless irregularity.</p> <p>Id.—Measure of Damages for Wrongful Discharge—Rule as to Employment for Whole Time Inapplicable.—The rule applicable to the measure of damages for breach of a contract of employment for the whole time, that it is the amount that would have been earned under the contract, after deduction of all sums earned, or which he might by reasonable diligence have earned during the time, has no application, by way of deduction, to the ease of the employment of the services of a dentist for afternoon service only, where the evidence shows that the amount earned by Mm during the term could have been earned by Mm in forenoon service, in addition to the amount which he might have earned under the contract of employment.</p>

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

<p>Action fob Breach of Contract—Purchase and Sale of Interest in Catering Business—Findings—Completeness of Contract—Erroneous Conclusion.—In an action to recover damages for breach of a contract for the purchase and sale of a half interest in a confectionery and catering business, it is held that the findings in regard to the terms of the contract show a complete agreement to buy and sell such interest within the meaning of section 1729 of the Civil Code, and that the court made an erroneous conclusion of law from the findings that the agreement between the parties was never completed.</p> <p>Id.—Fairness of Contract—Adequacy of Consideration—Cash Price —Skill and Labor of Plaintiff as Expert.—Although it appears that the cash price to he paid by plaintiff was but a fraction of the real value of the subject of the agreement to sell, yet, when nothing appears to the contrary, it must be presumed that the skill and labor agreed to be contributed by the plaintiff as an expert confectioner and caterer was of itself sufficient to make the consideration adequate, and the contract upon its face a fair one.</p> <p>Id.—Time for Payment not Fixed—Implied Agreement to Pay or Delivery.—Where plaintiff had made an advance payment, and no time was fixed in the agreement as to further payment, and it was left indefinite, the law implies that the further payment was to be made upon delivery.</p> <p>Id.—Absence of Delivery—Notice of Repudiation of Contract— Tender Unnecessary.—Where no delivery was made or tendered and while plaintiff was not in default, the defendant gave him no tice that he repudiated the contract, and would not carry out the same, and did not retract such repudiation, the plaintiff was nor required to tender performance of the contract on his part, beforisuing for breach of the contract.</p> <p>Id.—Cause of Action for Breach—Effect of Notice of Repudiation. The notice of repudiation of the contract constituted a breach of the agreement to sell, and plaintiff’s cause of action for the breach arose immediately, without reference to subsequent tender of payment.</p> <p>Id.—Measure of Damages for Breach.—The measure of damages for breach of a contract to sell personal property, the price of which has not been fully paid, is prescribed in section 3308 of the Civil Code, and “is decreed to be the excess, if any, of the value of the property to the buyer over the amount which would have been due to the seller under the contract, if it had been fulfilled.”</p>

<p>APPEAL from an order of the Superior Court of Merced County in proceedings supplementary to execution. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Bankruptcy—Title of Trustee—Bankrupt not Authorized to Sue. The trustee of the estate of a bankrupt, upon his appointment and qualification, becomes vested, by operation of law, with the title of the bankrupt to all transferable property owned by him, as of the date when he was adjudged a bankrupt. The bankrupt cannot maintain a suit in his own name in relation to his property not exempt pending proceedings in bankruptcy, after the appointment of a trustee.</p> <p>Id.—Transferable Interest in Land—Deed in Escrow—Effect at Death of Grantor.—A deed delivered in escrow, beyond the power of the grantor to recall it, with instructions to hold it until his death, and then deliver it to the grantee, vested title immediately in the grantee, which is transferable, and which would pass by operation of law to his trustee in bankruptcy.</p> <p>Id.—Deed by Grantor to Innocent Purchaser—Trust in Proceeds— Plea in Bar of Action by Bankrupt.—Where the property deeded in escrow, the title to which passed to the trustee, was subsequently conveyed by the grantor to an innocent purchaser without notice of the escrow, the right to enforce a trust against the grantor in the proceeds of sale, or to enforce a claim therefor against his executor, was vested in the trustee, and an action by the bankrupt against such executor upon a rejected claim is not maintainable, and the proceedings in bankruptcy may be pleaded in bar of such action.</p> <p>Id.—Beal - Party in Interest—Vested Bights of Trustee—Defendant not Protected.—The bankrupt, as plaintiff in such action, is not the real party in interest, and if he had recovered judgment and it had been satisfied by the defendant, it would have been no protection to the defendant against the claim of the trustee in whom the title to the land and the claim arising out of such title had already vested. Nor could a judgment that the plaintiff take nothing by the action estop the trustee from bringing his action to enforce his vested interest in the property or claim.</p> <p>Id.—Amendment of Answer to Plead Bankruptcy—Close of Proofs —Discretion.—Where there had been some evidence as to the bankruptcy, the court had discretion, after the parties had rested their proofs, to allow an amendment of the answer to plead the bankruptcy proceedings in bar of the action.</p> <p>Id.—Befusal to Allow Amendment to Complaint Inconsistent with Claim Presented.—The court properly refused to allow the plaintiff to amend his complaint by tendering an issue utterly inconsistent with the cause of action presented, and with the claim presented against the estate, which is sued upon.</p>

<p>TRANSFER to Supreme Court of cause appealed from the Superior Court of San Joaquin County. Frank H. Smith, 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>Lease foe Teem of Years—Action foe Bent—Bight of Lessee to Crops—Teems of Lease—Appointment of Beceiver—Want of Jurisdiction.—Where the only cause of action stated in a complaint by a lessor against a lessee for a term of years is for cash rent due, and it is not alleged that any lien or interest in the crops is reserved to the lessor, or that any right of re-entry or forfeiture is provided in the lease for conditions broken, the whole crop belongs to the lessee, and mere allegations that defendant did not, as agreed, irrigate and cultivate the whole land, that he broke a stipulation not to sell any part of his crops without written consent of the lessor, that the growing crops require attention, and that defendant is insolvent, do not confer jurisdiction upon the court to make an ex parte order appointing a receiver to care for, harvest and sell the crops, and such order must be reversed upon appeal.</p>

<p>Foreclosure of Mortgage—Service upon Grantee of Mortgagor by Publication—Setting Aside Default—Plea of Statute of Limitations.—In an action to foreclose a mortgage, where the grantee of the mortgagor, whose deed was recorded before the commencement of the action, was made a necessary party defendant, but was served with summons only by publication as an alleged nonresident, and her application to set aside the judgment by default, in order to plead the statute of limitations as a defense to the action, was timely, under section 473 of the Code of Civil Procedure, the court properly allowed her application, upon an affidavit that she was at all times a resident of the state, and had at no time been absent therefrom more than three months, and the presentation of a verified answer at the hearing setting up such defense.</p> <p>Id.—Affidavit of Merits—Verified Answer—Presentation at Hearing.—A verified answer setting up a sufficient defense is a sufficient affidavit of merits, and where there is no rule of court to the contrary, such answer may be presented at the hearing of the application to set aside the default.</p>

<p>Negligence—Maintenance op Guy Wire on Roadway—Review upon Dependant’s Appeal—Inferences Favorable to Plaintipp.— Upon appeal by the defendant, in determining the question of its negligence in maintaining a guy wire on a roadway, to plaintiff’s injury, this court must consider the ease on the inferences most favorable to the plaintiff’s contention for which there is any substantial support in the evidence.</p> <p>Id.—Wire on Roadway Leading to Depot—Implied Invitation op Plaintipp.—Where there is evidence showing that the guy wire was placed in a clearly defined and regularly traveled roadway leading to a railroad depot, and that plaintiff was using the same to go to the depot with his wagon to meet his wife in the evening when injured thereby, the reasonable inference is that he was there, not as a licensee, but on the implied invitation of the railroad company.</p> <p>Id.—Evidence op Dependant’s Negligence.—In the light of the evidence most favorable to the plaintiff, it must be held that, under the circumstances, the defendant was negligent in placing and maintaining the guy wire within the line of travel without anything to attract the attention or observation of one approaching thereon in the dark, and when such an accident as in the ease at bar was likely to occur.</p> <p>"Id.—Duty op Dependant.—It is no answer to the liability of the defendant for his negligence that he owed no duty to the plaintiff. He is bound so to use his property as not to injure another, and must practice ordinary care in the use, and not be reckless or indifferent to human life or safety.</p> <p>Id.—Long Maintenance op Wire without Injury Immaterial.—The long maintenance of the wire without previous injury is of no importance, so far as plaintiff is concerned, where he had no knowledge of its existence, and where giving full credence, as we must, to his testimony, the case is the same as though the accident had occurred the day after the wire was located.</p> <p>Id.—Contributory Negligence—Support op Finding.—Held, that the court was justified in finding that there was no contributory negligence of the plaintiff; that he acted as any ordinarily prudent man would be expected to, under the circumstances, seeing what he saw, and knowing what he knew, and that it would be unreasonable to expect him to make diligent investigation to ascertain whether there was any invisible obstruction which he had no reason to believe existed.</p>

<p>Action fob Damages by Lessees—Fall of Building into Excavation—Negligent Trespass—Amendment to Conform to Proofs—Cause of Action Unchanged.—In an action for damages by lessees for injury to their property and business from the fall of one side of the building leased into an excavation made by defendants on adjoining land, caused by their removal of shores and braces placed to support the wall and land by agreement between defendants and plaintiff’s lessor, and by picking bricks out of the wall on plaintiff’s land to make niches therein, to carry out the plans and specifications of a building to be erected on the adjoining land, an amendment to the complaint allowed to conform to the proofs without changing the cause of action, but merely to make the allegations more specific, each complaint being sufficient to sustain a finding of negligent trespass, committed by both defendants appealing, does not constitute such an amended pleading as defendants were entitled to demur to or answer as matter of right.</p> <p>Id.—Showing Bequired from Defendants.—If defendants, by reason of such amendment, claim to be deprived thereby of an opportunity to present material evidence, upon an application therefor, they must show that they were misled by it, or prevented from introducing evidence to rebut that upon which the amendment is based, and that if the case be reopened, they will be able to present testimony to overcome such evidence.</p> <p>Id.—-Evidence—Depth op Retaining Wall op Lessor—Compliance with City Ordinance.—Evidence was admissible to show that the retaining wall of the lessor was built to the depth required by the city ordinance, and was a sufficient retaining wall to that depth; and the city ordinance was admissible in connection with such evidence to show such compliance.</p> <p>Id.—Lower Extension by Adjoining Owner—Adoption op Wall as Sufficient.—Where the owner of the adjoining land extended the retaining wall to a lower depth, to make it part of the wall erected by it, and as additional support of the lessor’s land, it adopted his retaining wall as sufficient for the purposes for which it was built and when it was extended as a sufficient retaining wall for all purposes.</p> <p>Id.—Duty op Adjoining Owner to Support Wall and Land—Support by Lessor.—It was the duty of the owner of the adjoining land making a lower excavation than that required by the city ordinance to support the wall and land of the lessor; and the fact that the lessor had taken precautions to have his wall and land supported did not release the adjoining owner from the duty so imposed upon him by section 832 of the Civil Code.</p> <p>Id.—Negligent Trespass—Support op Finding.—Where the evidence clearly establishes that the contractor employed by the owner of the adjoining land was guilty of negligent trespass upon the land occupied by the plaintiffs, and also clearly shows that such trespass was made in accordance with the plans and specifications required by the owner of the adjoining land, it is sufficient to support a finding that the negligent trespass was committed by both parties.</p> <p>Id.—Secondary Evidence—Contents op Lost Lease.—Where it appears that the lease made to the plaintiffs was lost, and could not be found after diligent search, the testimony of the attorney who drew the lease was admissible to prove its contents.</p> <p>Id.—Improper Opinion Evidence.—A question addressed to a witness as to whether the taking out of the bricks would weaken the wall, though not properly subject to the objection that it called for expert evidence, was properly overruled on the ground that it called for opinion evidence, not expert, as to matters of common observation, which would admit of but one answer.</p>

<p>Homestead—Declaration by Wife fob Joint Benefit—Validity— Use by Wife fob Prostitution—Husband’s Knowledge not Shown.—Where a homestead, comprising a dwelling of four rooms on a city lot, with usual outbuildings, purchased by the husband in the wife's name, was declared by her, in valid form, for their joint benefit, it inured to the benefit of the husband as well as the wife; and its validity is neither affected by the fact that the husband, who is not shown to have any other place of residence, was absent part of the time in the course of his employment, nor by the fact that, during his absence, without any showing of knowledge on his part, the home was used by the wife for purposes of prostitution, and was so used by her when the homestead was declared.</p> <p>Id.—Construction of Homestead Act—Personal Qualifications not Prescribed.—The homestead act prescribes no personal qualifieations touching the moral character of the claimant, and does not undertake to exclude the vicious, the criminal or the immoral from the protection given by it.</p> <p>Id.—Crime—Construction of Penal Code—Property not Forfeited. If living in a house of prostitution is a crime under section 315 of the Penal Code, yet in view of section 677 of the same code a conviction therefor could not have the effect to work any forfeiture of property not expressly imposed by law.</p> <p>Id.—Personal Character of Wife as Claimant.—The personal character or conduct of the wife as claimant of the homestead, however immoral, cannot be inquired into and made the test of her right to claim a homestead for the joint benefit of herself and husband.</p> <p>3b.—Valid Claim of Homestead—Incidental Use for Prostitution. Where the claim of the homestead is valid on its face, and there is nothing therein to indicate that it is to be used for any other purpose than as a residence for husband and wife, the incidental use by the wife of the home for purposes of prostitution does not destroy the right to the homestead.</p> <p>Id.—Transfer of Homestead.—The wife, in whom the title was vested, could not convey the homestead, arid her moral character cannot affect that question. The homestead can only be transferred by the joint deed of husband and wife.</p>

Frank H. Smith, Judge. The facts are stated in the opinion of the court. U. S. Webb, Attorney General, and John W. Stetson, for Appellant. The court erred in excluding the commitment from evidence. It was valid and could not be collaterally assailed. The presumption is in favor of the jurisdiction. (Ex parte Clary, 149 Cal. 732, 87 Pac. 580 ; Koehler v. Holt Mfg.

.W. B. Wallace, Judge. The facts are stated in the opinion of the court. Charles G. Lamberson, E. T. Gosper, and Alfred Daggett, for Appellant. The certificate of sale untruly stated the time for redemption, making it expire on a day on which the owner was entitled to redeem, and was invalid. A false recital vitiates. (McKenzie v. Brandon, 71 Cal. 219, 12 Pac. 428 ; Blackwell on Tax Titles, sec. 769 ; Perham v. Kuper, 61 Cal. 332 ; Pol.

<p>Jhange of Place of Trial—Convenience of Witnesses—Showing by Affidavits—Materiality—Contents of Testimony—Discretion of Court.—Upon a motion by the defendants to change the place of trial for convenience of their witnesses, the affidavits in support of the motion must show that the witnesses are material and necessary to the defendants, and must state what is expected to be proved by them, that the court may judge of their materiality; and upon their failure to state what the witnesses would testify to, the court did not abuse its discretion in denying the motion.</p> <p>Id__Affidavit in Action for Breach of Contract—Admissibility of Ural Agreement—Conclusion of Affiant.—Where the change of jlaee of trial was sought in an action for breach of contract, a statement in an affidavit for the defendants that the memorandum of the contract was indefinite as to its terms and the amount of consideration, and was subject .to an oral agreement made part of toe transaction, averred merely the conclusion of the affiant. The written memorandum should have been set forth so that the court could judge whether the established rules of law would admit of oral proof to show that it was subject to such agreement, as claimed.</p>

<p>APPEAL from an order of the Superior Court of Solano County, setting aside its settlement of a bill of exceptions on motion for a new trial. L. G. Harrier, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

City and County of San Francisco, and from an order denying a new trial. Frank H. Dunne, Judge. The facts are stated in the opinion of the court. Campbell, Metson & Drew, John J. Barrett, and Chas. H. Fairall, for Appellant. The order of service and filing of the notice of appeal on the same day is immaterial, the law disregarding fraction of a day.

<p>NEGLIGENCE'—MASTER AND SERVANT—UNSAFE APPLIANCE—NEGLECT OF Fellow-servant—Negligence of Master not Shown.—The master is not liable to a servant for the negligence of a fellow-servant engaged in the same general employment, by reason of an appliance made unsafe by the negligent act of such fellow-servant, where there is no proof that the appliance provided by the master was not of suitable size and strength. The mere happening of the injury raised no presumption that the employer was at fault in providing the appliance.</p> <p>Id.—Duty of Master as to Appliances.—The master is not bound to furnish appliances that are absolutely safe. His duty is done when he furnishes the employee with reasonably safe appliances, and keeps them in repair.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>James C. Rives, E. A. Meserve, Biclmell, Gibson, Trask, Dunn & Crutcher, and Edward E. Bacon, for Appellants.</p>

<p>Pleading—General Demurrer to Complaint—Material Facts Admitted.—Upon general demurrer to a complaint, all material facts therein averred are admitted to be true, for the purposes of the demurrer.</p> <p>Id.—Complaint to Rescind Settlement and Release op Partnership— Fraud—Monet Paid—Greater Sum Due—Opper to Restore not Required.—A complaint, in an action to rescind the settlement and release of a partnership for money paid by the defendants to the plaintiff, which sets forth facts constituting fraud in the procurement of the settlement and release, and avers that upon a full accounting and settlement of the partnership a greater sum would be found due than that paid, need not, as against a general demurrer, allege an offer to restore the money paid.</p> <p>Id.—Restriction upon Rescission—Rule and Exceptions.—The general rule that, in order to support rescission of a contract for fraud, the plaintiff must restore or offer to restore the consideration received, before suit, is subject to exceptions. The plaintiff is not required to restore or offer to restore a sum which he is, in any event, entitled to retain, or where the thing has no value, or where it appears that defendants could not be injuriously affected by failure to make restitution, or where the complications are such, without the plaintiff’s fault, that restitution is impracticable, and the court, upon final decree, may fully adjust the equities between the parties.</p> <p>Id.—Limitation and Laches not Shown on Face op Complaint.— Where the complaint alleges that the facts constituting the alleged fraud were discovered within one year before the filing of the complaint, it does not show limitation or laches upon its face, it appearing upon the face of the complaint that no restitution was required, and that no harm could result to the defendant by the delay to sue, under the allegations of the complaint.</p> <p>Ib.—Sufficiency of Complaint—Error in Sustaining Demurrer.— Held, that the complaint in the action to rescind states a cause of action and is not demurrable for ambiguity, and that a general and special demurrer to the complaint was improperly sustained.</p>

<p>Counties—Act Fixing Boundary Lines—Election—Ministerial Functions of Commissioners.—Under the act of March 14, 1907, fixing the boundary lines between the counties of Kings and Fresno, the functions of the commissioners appointed to give notice of an election held thereunder, and to canvass thereof, are purely ministerial and they have no judicial power under the act, and cannot go behind the returns for any purpose.</p> <p>Id.—Refusal to Canvass Returns—Failure of Clerk as to Certificate of Registration—New Election—Void Judicial Action.— Where the county clerk of Fresno county had certified additional registration within forty days of the election, the refusal of the commissioner to canvass the returns for his failure to certify additional registration to the date of the election, and their declaration that the election was void on that ground, and the ordering of a new election, was judicial action in excess of the power of the commissioners.</p> <p>Id.—Proper Certificate of Clerk—General Law as to Registration Applicable.—Where the act of March 14, 1907, prescribes that, except as otherwise provided therein, the general election law shall control, the registration of voters must be controlled by the general law, and the certificate made by the clerk as to additional registration within forty days prior to the election was proper under the law.</p> <p>Id.—Remedy by Mandamus to Commissioners.—The proper remedy for the refusal of the commissioners to canvass the returns of the election held under the act is by mandamus to compel the proper exercise of their ministerial functions thereunder.</p> <p>Ib.—Remedy in Equity fob Judicial Wrong.—No remedy by contest being provided for in the statute, if any judicial wrong has been committed in the conduct of the election, the superior court may, in the exercise of its equity powers, remedy such judicial wrong.</p>

<p>Deed of Trust—Power of Sale—Assignment of Note—Record not Required—Construction of Code.—The assignor of a negotiable note secured by a deéd of trust, which passes the legal title to the trustee with power to sell upon default in payment upon the request of the payee “or his heirs or assigns,’’ is not required to record the assignment. The holder of the note is not “an encumbrancer’’ to whom a power of sale is given, within the meaning of section 858 of the Civil Code, requiring the acknowledgment and record of the assignment of the money “secured to be paid." in order to vest in the assignee a “power to sell real property’’ which “is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money. ’ ’</p> <p>Id.—Default in Payment of Interest—Option of Holder of to Declare Whole Sum Due—Power of Transferee of Note.— Where, at the time of the transfer of the note secured by the deed of trust, the debtor was in default in the payment of interest on the note, and an option was given to the holder of the note to declare the whole sum due for nonpayment of interest, the transferee of the note may exercise such option for previous defaults, and request a sale by the trustee for the entire amount of the note.</p> <p>Id.—Sale by Corporation Trustee—Advertisement—Conduct op Sale by Agent as Auctioneer—Appointment.—Where the trustee was a corporation, which, upon demand for a sale, duly adver- • tised the sale, under its corporate seal, fixing the time and place of sale, it might conclude the sale by one of its agents generally authorized to conduct sales for it as auctioneer. No special resolution of the directors appointing him as auctioneer in this case was required, but in the absence of such resolution, the manager of the corporation might authorize him to act as auctioneer.</p> <p>Id.—Sale to Creditor by Authorized Agent op Trustee.—Where the creditor was not at the sale, but had notified the trustee of the amount of her bid, and requested .the trustee to appoint some one to bid for her, and the trustee appointed one of its officers to make the bid for her, the validity of the sale to the creditor was not impaired thereby.</p> <p>Id.—Redemption After Sale Ineffective.—An attempted redemption by a vendee of the debtor after the sale was made, though before the execution of the trustee’s deed to the purchaser, was ineffective.</p> <p>Id.—Inadequacy op Price.—The fact that the amount of the debt for which the property was sold was only two-thirds of the value of the property does not disclose such gross inadequacy as would affect the validity of the sale, where there was no unfairness on the part of the trustee, who was bound to make the sale to the highest bidder, under the terms of the deed of trust.</p> <p>lb.—Duty op Trustee.—The trustee was under no duty to make other effort to procure bidders than to advertise its sale in the manner required by the deed of trust.</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. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Forcible Detainer—Construction of Code.—The word ‘‘force" used in the definition of “forcible detainer," contained in subdivision 1 of section 1160 of the Code of Civil Procedure, contemplates actual force, or such conduct on the part of defendant as tends to inspire a just apprehension of violence, by one unlawfully in possession. Where the entry was lawful and the possession peaceable, that subdivision does not apply.</p> <p>Id.—Findings Against Evidence.—Held, that findings that the defendant “unlawfully took possession of the premises described in the complaint," at a certain date, “and has ever since, by force, unlawfully held and kept possession of said premises," are against the evidence, where the evidence shows that defendant's entry was peaceable and with the assent and approval of the plaintiff, and there is no evidence tending to show that the defendant exercised force, menace or threats of violence in holding possession of the property.</p> <p>Id.—Gratuitous Bailment of Goods—Lawful Possession - of Premises Unaffected.—Where the plaintiff, when putting the defendant in possession of the premises, reserved only the right to let his goods remain therein for three days, such arrangement merely made the defendant a gratuitous depositary for safety or bailee of plaintiff's goods for the three days, which did not affect defendant's lawful possession of the premises.</p> <p>Id.—Violation of Contract not Ground for Forcible Detainer.— The violation of an alleged agreement of the defendant to pay for the possession of the premises, which was peaceably surrendered with plaintiff’s consent, cannot be made the basis of an action for forcible detainer.</p>

APPLICATION of Gr. R. Johnson for writ of review to annul an order of the Superior Court of Los Angeles County, setting aside the confirmation of a sale. James C. River, Judge. The facts are stated in the opinion of the court.

<p>County Ordinance—Prohibition of Sale of Liquors—Validity— Proper Enacting Clause—Becital in Title of Accord with Invalid Section—Vote of People.—Where a county ordinance adopted by the board of supervisors of a county, prohibiting the sale of intoxicating liquor therein, has the proper enacting clause required by law, its provisions are valid and binding, notwithstanding a recital, following its number, in the title, that it was an ordinance of the county “under and in accordance with the provisions” of an unconstitutional section of the County Government Act, providing for the inception of ordinances by vote of the people. Such recital may be treated as surplusage, there being no requirement that ordinances shall have a title, and the recital does not make the ordinance that of the people, and not that of the board.</p> <p>Id.—Motives of Board Immaterial.—The courts will not look into the motives of a legislative body in the exercise of its legislative power, in the absence of a public policy imperatively demanding it in an extraordinary case, on the ground of palpable fraud.</p> <p>Ib.—Beoital of Source, of Power Unessential.—It is not essential to the validity of an ordinance that it should state or indicate the power in execution of which it was passed, nor that the reason for its enactment be set out, where the legislative or constitutional authority for the passage of the ordinance does not expressly require it; and a misrecital in an ordinance of the source of power to enact it does not affect its validity, if in point of fact the power to enact it existed.</p> <p>Id.—Violation of Ordinance—Habeas Corpus.—The ordinance being a valid enactment by the board of supervisors, one properly charged with a violation of it cannot be discharged on habeas corpus.</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>Mechanics’ Liens—Notice to Owner by Employee of Subcontractor—Payment by Contractor to Subcontractor.—A materialman employed by a subcontractor may serve a notice on the owner of the property of his claim for reimbursement for the materials furnished to the subcontractor and used in the building, and his equitable garnishment, and the enforcement of his lien cannot be affected by a full payment made by the contractor to the subcontractor.</p> <p>Id.—Enforcement of Liens—Equitable Principles.—In enforcing liens, equity will render judgment in favor of each claimant according to the amount he is entitled to receive. The property being liable only for the value of the work done, if there be not sufficient funds to pay the subcontractor and his employees, the latter will be first paid, and the loss, if any, must be borne by the subcontractor. The same principle will be employed as between the contractor and the materialmen, whether employed by him or by a subcontractor.</p> <p>Id.—Eoreclosure of Lien—Attorneys’ Fees not Allowed.—No attorneys’ fees can be allowed upon the foreclosure of a mechanic’s lien.</p>

<p>Action to Foreclose Canceled Chattel Mortgage—Subrogation— Case in Equity—Jurisdiction—Transfer and Betransfer.—An action to set aside the release of a chattel mortgage, and to foreclose the same, on principles of equitable subrogation, is a case in equity, within the jurisdiction of the supreme court, and when appealed to this court was properly transferred to the supreme court, which had power to retransfer the same to this court for determination.</p> <p>Id.—Payment of Mortgage upon Attachment—Bemedy by Judicial Sale—Equitable Facts not Shown.—Where respondents attached property secured by chattel mortgage, and were compelled to pay the mortgage debt, and the mortgagee thereupon released .and canceled the mortgage, they were not entitled to an equitable subrogation to cancel the release and foreclose the mortgage where no equitable facts appear in the record to warrant it. In such case, their remedy for reimbursement of the money so paid, out of the proceeds of a sale upon execution, under section 2970 of the Cdvil Code is an exclusive remedy.</p> <p>Id.—Beversal—New Trial—Petition for Behearing—Equitable Facts Stated in Petition not a Ground—Amendment of Pleading.—Equitable facts, of persuasive force, not appearing in the record, and urged for the first time upon petition for rehearing, are not a ground for rehearing, though they may justify an amendment of the complaint upon the new trial ordered by this court, so as to warrant an equitable subrogation to the extent of the amount paid upon the chattel mortgage and interest.</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. Walter Bor dwell, 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 Kings County, and from an order denying a new trial. M. L. Short, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Chas. G. Lamberson, and Frank Lamberson, for Appellants.</p>

<p>Public Highway—Dedication—User by Public.—Evidence showing that a strip of land lying between the lands of the plaintiffs as they have been fenced for upward of forty years by them and their predecessors, and which had been previously used as a general roadway, and with the consent and acquiescence of the parties had been continuously used by the public at all times as a connecting link between other public highways, is sufficient to establish a dedication of the strip as a public road or highway, and the plaintiffs cannot enjoin the defendant from using the same.</p> <p>Id.—Claim of Eight by Public—Adverse User—Acquiescence of Owner—Presumption.-—It is not always necessary for the public, in using a roadway, to proclaim that they are using it under a claim of right, where the right is asserted as flowing from long usage with the knowledge and acquiescence of the owner of the land; nor is it always necessary to show some aggressively hostile act by the public that such use was intended to be adverse to the owner. The claim of right, the adverse character of the user, and the knowledge and acquiescence of the owner of the land may be presumed from the facts and circumstances attending -the use.</p> <p>Id.—Conclusive Presumption of Dedication—Presumption.—Where the claims of the public rest upon long-continued adverse use of a roadway, that use establishes against the owner the conclusive presumption of consent, and so of dedication, and may establish title to the easement in the public by prescription.</p>

<p>Railroad Companies—Liability for Expulsion of Passenger—Terms op Contract.—Whatever may be the rule in other jurisdictions, it is the rule in this state that a passenger upon a railroad train may stand upon the terms of his contract for passage, and may recover damages for an expulsion contrary thereto.</p> <p>Id.—Sale op Excursion Tickets—Waiver of Identification of Passenger—Wrongful Expulsion.—Where many excursion tickets were sold to the manager of an excursion train for resale, and across the provisions for the identification of passengers were stamped in large red letters “Not required,” and the manager wrote the name of the passenger to whom he sold a ticket on the face thereof, the identification of the passenger was thereby waived, and he may recover actual damages for a wrongful expulsion from such train by the conductor, on the ground that his signature did not conform to that written on the face of the ticket.</p> <p>Id.—Mistaken Acts by Conductor Without Malice—Requested Arrest and Imprisonment—Repudiation—Actual Damages Only Considered.—Where the acts of the conductor in expelling the plaintiff and in requesting his arrest and imprisonment on resistance were free from malice and ill-will, and through mistake as to his authority, and on promise to the arresting police officer that he would prefer charges against the plaintiff, and his action in that regard was repudiated by the company, and no charge was preferred against the plaintiff, the action of the conductor in causing the arrest and imprisonment is to be considered as within the apparent scope of his authority, on the question of actual damages j but the company cannot be charged with exemplary damages for the arrest, which was not expressly authorized nor sanctioned by it.</p> <p>Id.—Excessive Damages—Rebate Required as Condition of Affirmance.—Held, that a verdict for damages in favor of plaintiff in the sum of $4,000 is excessive, and is ground for a new trial, unless plaintiff shall stipulate to release all of the judgment above the sum of $800, in which ease the judgment would be ordered modified accordingly and affirmed in that sum.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. George E. Church, 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>Negligence—Collision on Street Railway—Injury to Passengers— Plea of Release of Damages—Support of Findings.—Where, as the result of a collision of cars on an electric street railway, plaintiffs were injured, and the findings of the court for the plaintiffs as to the amount of the injury, and against the defendant on a plea that the damages were released by each of plaintiffs, were fully sustained by the evidence for the plaintiffs, upon the appeals of the street railway company, the judgment in favor of each of the plaintiffs must be affirmed.</p> <p>Id.—Fraud in Procuring Release—Immaterial Finding Unsupported.—In view of the sustained finding that the release pleaded was never signed, it is immaterial whether a finding that the release was procured by fraud is or is not supported by the evidence. If unsupported by the evidence, it could not affect the result.</p> <p>Id.—Signature to Blank Release—Writing Subsequently Inserted by Defendant—Defense—Payment on Account not Pleaded.— Where plaintiffs signed merely a blank release, and defendant subsequently, in the absence of plaintiffs, inserted written words purporting to release all damages for the sum of $25 paid to each of the plaintiffs, which plaintiffs understood to be merely a payment for time lost, and defendants merely pleaded such release in full, upon a finding against it, it has no pleading upon which it can be allowed the $25 as a payment on account of damages to each of the plaintiffs.</p> <p>Id.—Inadmissible Evidence—Advice and Contingent Interest oe Third Party—Motives Immaterial.—The court properly excluded evidence on cross-examination of plaintiffs to show that a third party had advised the suit and had a contingent interest therein. The motive of a plaintiff, or of any of his advisers, was of no consequence if the right of action existed.</p>

<p>Estates op Deceased Persons—Deed op Gift prom Decedent to Wife—Use of Word "Grant”—Covenant Against Mortgage not Implied.—Where the land of a deceased testator was encumbered by a mortgage, and in his lifetime he executed a deed of gift to his wife, the use of the word "grant” therein did not imply a covenant against the encumbrance of the mortgage, but the wife took subject to the lien of the mortgage, and cannot require payment of the mortgage debt out of the funds of the estate of her deceased husband, where the will contained no provision for such payment.</p> <p>Id.—Recital op Deed in Will not a Devise.—A recital in the will of the decedent that he had made a deed of gift of the mortgaged land to his wife, "subject to the encumbrances thereon,” does not import any specific devise of the land to her.</p> <p>Id.—Recital in Petition and Order op Sale op Personal Property-Indebtedness—Mortgage Claim.—The recital of the indebtedness of the estate, including the mortgage claim as part of the schedule, in the petition for an order for sale of personal property, and also in the order of sale, did not adjudge that the mortgage claim was a debt due from the estate. The ultimate fact determined in that proceeding was whether a sale should be had, and if so, how much property should be sold. The question of the exoneration of the property conveyed to the wife from the lien of the mortgage was not presented nor passed upon by the court under the terms of the will.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>P. F. Dunne, Walter H..Linforth, and Jackson Hatch, for Appellant.</p>

<p>Eminent Domain-—Condemnation of Property by City—Report of Referees—Compensation for Leasehold—Modification by Court—Judgment.—In a proceeding by a city to condemn land for public use, where compensation to lessees for a leasehold interest and further compensation to the owner of the fee were included in the report of referees, the superior court had jurisdiction, upon the hearing of exceptions to”such report, to modify the • report by striking out the compensation for the leasehold interest, and to confirm the report as modified, so as to award the whole compensation to the owner of the fee by its judgment.</p> <p>Id.—Remedy by Appeal—Judgment not Changeable on Mandamus.—The statute having provided' a speedy and adequate remedy by appeal, through' which a party aggrieved may correct any errors in the action of the court or of the referees, where no appeal is taken or motion for a new trial filed, and there is no means of ascertaining the facts on which the judgment was based, this court will not, on application of the claimants of the leasehold interest for a writ of mandate, direct the court to render a different judgment from the one rendered.</p> <p>Id.—Presumption upon Application for Writ—Support of Judgment by Evidence—Est'oppel of Applicants—Errors not Correctible.—This court will assume, upon the application for the writ of mandate, that the judgment of the superior court was warranted by the evidence adduced before the court at the hearing of the exceptions to the report of the referees; and, where the applicants have not availed themselves of the right given them by the statute, they cannot be heard, in a proceeding of this nature, to correct errors, if any there be, in the condemnation proceedings.</p>

PETITION for writ of habeas corpus to the Chief of Police of the City of Los Angeles. The facts are stated in the opinion of the court.

PETITION for writ of habeas corpus to the Chief of Police of the City of Oakland. The facts are stated in the opinion of the court.

<p>Highway—Eights of Abutting Owner Subordinate to All Legitimate Uses.—While the rights of individuals to their property should be carefully conserved, the title which the owner in fee holds in the land of a highway during the existence of the easement of the public therein should be declared subject to all legitimate uses of a highway in harmony with the advanced methods and growing demands of modern society.</p> <p>Id.—Lighting of Highway—Power of Supervisors—Franchise.— Within the spirit and purpose of the law, the lighting of an urban or suburban highway may be considered incidental to the use contemplated by the dedication, as tending to promote the comfort, convenience and facility of travel over the highway; and the determination of the necessity for such lighting in any particular case is clearly within the authority of the board of supervisors or other local legislative body charged with the duty to maintain, manage and control the highway, and a franchise granted for such lighting is for “a lawful purpose.”</p> <p>Id.—Power of Court.—The action of the governing body in granting a franchise for the lighting of a highway is not subject to revision by the court, in the absence of any showing that there has been an abuse of discretion or excess of jurisdiction.</p> <p>Id.—Use of Lighting Poles and Wires for Electric Power.—The fact that the poles and wires used for lighting purposes were also, by the terms of the franchise, to be used for the transmission of electricity for electric power for private uses, does not affect the validity of the franchise for lighting the highway.</p> <p>Id.—Action of Ejectment—Pleading of Franchise in Defense.—In an action of ejectment to recover the possession of the portion of the highway adjoining plaintiff’s premises on which the poles and wires were erected, in the pleading of the franchise in defense, it is not necessary to allege that the board of supervisors determined the necessity for lighting the highway; but it is sufficient to aver in substance that the order granting the franchise was duly given or made; nor is it necessary to allege that the board of supervisors entered into a contract with' the defendant for the lighting of the road.</p> <p>Id.—Averment of Ordinance—Implication.—Although an ordinance granting the franchise is not directly pleaded, the averment being that “defendant only claims the right to use the portion of said highway . . . under and by virtue of "the said ordinance and franchise,” still considering the answer as a whole it sufficiently alleges the enactment of an ordinance granting the franchise, as against a general demurrer to the answer. The granting of the franchise alleged, which could only be by ordinance, implies that it was done in pursuance of an ordinance.</p> <p>Id.—Remedy by Ejectment.—If the franchise granted were wholly without authority of law, ejectment by the abutting owner of half of the roadway would be a proper remedy.</p>

<p>Criminal Law—Appeal—Order Denying Arrest op Judgment.—An order denying a motion in arrest of judgment is not appealable, and an attempted appeal therefrom must be disregarded.</p> <p>Id.—Manslaughter-—Evidence—Identity op Person Killed.—Where the defendant was charged with manslaughter in the killing of one Patrick Connolly, and there is evidence showing that the deceased’s death resulted from a blow on the head, delivered by the defendant, and that defendant was seen at the' inquest over the body of Patrick Connolly, at which the cause of his death was found to be a fracture through the temporal bone, it must be presumed from the identity of name, in the absence of evidence to the contrary, that the person on whom the inquest was held was the same person whom the defendant was charged with killing.</p> <p>Id.—Support of Verdict for Involuntary Manslaughter.—Where there was evidence tending to show that the defendant had knocked down another man and was engaged in kicking him, whereupon the deceased remonstrated with him for kicking a man while he was down, and was trying to help the man to his feet, whereupon the defendant made a swinging kick, which struck decedent upon the head, from which he died as the result of a fractured temporal bone, the jury was justified in finding a verdict of guilty of involuntary manslaughter.</p>

<p>Finding Outside Issues—Support of Judgment.—A finding made outside of the issues will not warrant a judgment depending thereon.</p> <p>Appeal—Beyiew of Evidence.—When an appeal is taken from .a judgment more than sixty days after its rendition, a bill of exceptions purporting to contain certain evidence had upon the trial cannot be considered.</p>

<p>Action for Damages Exceeding $2,000.—Cross-complaint for Injunction—Appeal—Jurisdiction of Supreme Court.—Where the plaintiff brought an action to recover damages for personal injuries in excess of $2,000, and the defendant, besides answering, filed a cross-complaint for an injunction to restrain plaintiff from the commission of a nuisance, and the judgment was for the defendant, from which and from an order denying plaintiff’s motion for a new trial, the plaintiff appealed, the supreme court has exclusive jurisdiction of such appeal, and, when taken to this court, it must be transferred to the supreme court.</p>

<p>Criminal Law—7Mueder—Defense of Insanity—Evidence—Prejudicial Instruction—Mueder in First Degree—Absence of Qualification.—Upon the trial of a defendant charged with murder, where the sole defense was insanity at the time of the homicide, rendering him without volition or responsibility, and powerless to know or appreciate the wrongfulness or criminality of his act, and there was evidence strongly tending to sustain such defense, an instruction to the effect if defendant was insane he could not be found guilty of murder in the first degree, because incapable of forming that willful, deliberate and premeditated malice aforethought which constitutes such crime, standing alone, without any other qualification in the charge as to the law of insanity as a defense to crime, is- highly prejudicial, and is ground for reversal of a judgment of conviction of murder in the second degree.</p> <p>Id.—Insanity Established Entitles to Acquittal.—Where insanity is established as a defense to a charge for crime, it entitles the defendant, under the law, to an absolute acquittal.</p>

APPEALS from a judgment of the Superior Court of Mendocino County, and from an order refusing to settle a bill of exceptions. J. Q. White, Judge. The facts are stated in the opinion of the court.

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

<p>Mandamus—Prior Demand for Relief Essential.—Before applying to the court for a writ of mandate, the applicant must make a demand upon the defendants to perform the act sought to be enforced by the writ.</p> <p>Id.—Application to Compel Delivery of Suspended High School. Certificate—Issues as to Demand and Refusal—Support of Findings—Presumption upon Appeal.—Where a writ of mandate was sought in the superior court to compel defendant to deliver up a suspended high school certificate, and issues were sufficiently joined upon an alleged demand upon defendants before suit for the relief sought, and their alleged refusal to grant it, and the findings upon such issues were against the applicant, upon an appeal taken by him upon the judgment-roll, without the evidence, it must be presumed that the findings were supported by sufficient evidence, and the judgment must be affirmed.</p>

<p>County Ordinance—Condition or Liquor License—Remonstrance by Electors—Local Option—Judicial Power not Delegated.— A county ordinance providing that, when a license for a saloon is applied for to be located in an election precinct, a remonstrance by a majority of voters in the precinct living within one mile of the proposed saloon shall defeat the license, establishes a valid condition of the issuance of the liquor license, which involves in effect a limited local option, and does not involve any delegation to the electors of the judicial power conferred by the ordinance upon the board of supervisors.</p> <p>Id.—Fitness op Applicant Immaterial.—The remonstrance provided for in the law, as a condition of the license, is alone sufficient to defeat it, regardless of the question whether or not the applicant therefor is a fit and proper person to be intrusted with a license to conduct a retail liquor business.</p>

<p>Claim and Delivery—Bill of Sale—Possession not Delivered— Sale by Executrix to Bona Fide Purchaser—Confirmation.— Though a bill of sale of personal property made by a deceased testator in his lifetime, without a delivery or change of possession, was valid as between the parties; yet, where the grantor died while in possession thereof, and his executrix sold the property to a bona fide purchaser for value, without notice of the bill of sale, and such sale was confirmed, an action of claim and delivery will not lie against the executrix after such sale, for want of possession by her when the suit was brought, nor can the action be maintained against the bona fide purchaser, since the original transfer was void as to him, under section 3446 of the Civil Code.</p> <p>Id.—Damages for Conversion not Allowable in Replevin.—In an action of replevin, or claim and delivery under our statute, no relief can be had for conversion of the plaintiff’s property against either of the defendants. The distinction between those two kinds of action is fully established.</p>

Fresno County, and from an order denying a new trial. H. Z. Austin, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for discharge on writ of habeas corpus.</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>Public Lands of United States—Land Actually Possessed fob Agriculture not Subject to Homestead Entry—Ouster—Eject- • ment.—Public land of the' United States actually inclosed by fence and used by the possessor for agricultural purposes, without other right, is not subject to the possession of a homestead claimant who has made a homestead entry including such land in the United States land office, and if such possessor is ousted by the homestead claimant, he is entitled to recover the possession of his land in an action of ejectment against such claimant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Louise Matthai, Rose Matthai, and Warner Temple, for Appellants.</p>

<p>Criminal Law—Sentence for Less than Minimum Term not Void— Error not Corkectible to Detriment of Appellant.—Where a defendant accused of grand larceny and of- a prior conviction for burglary pleaded guilty of the prior conviction, and upon a. plea of not guilty of the grand larceny was found guilty thereof, a sentence for seven years, which is three years less than the-minimum provided by law in such ease, is not void, and will not be corrected to the detriment of the defendant upon his appeal.</p> <p>Id.—Cross-examination of Defendant as Witness—Impeachment— Prior Conviction of Felony—Construction of Code—Waiver. When the defendant becomes a witness in his own behalf, he becomes subject to all the ordinary rules of evidence, and his truth, honesty and integrity being in issue, he may be asked on cross-examination if he had ever been convicted of a felony. The provision of section 1025 of the Penal Code, that if defendant has suffered a previous conviction, and has pleaded guilty thereof, it shall not be read to the jury nor commented on at the trial, is not intended to prevent the asking of such general question upon cross-examination of the defendant as a witness in his own behalf. By becoming such witness, he waives the protection of that section of code.</p> <p>Id.—Exclusion of Witnesses at Trial—Discretion.—The exclusion-from the trial of the witnesses for the prosecution, at the request of the defendant, is not an absolute right in all cases, but rests in the sound discretion of the court, which has power to specially except one or more witnesses from the operation of an order made for this purpose; and a suggestion of an abuse of discretion made for the first time in the appellate court cannot be considered in the absence of any showing in the record.</p> <p>Id.—Proper Refusal of Requested Instructions.—The superior court properly refused an instruction requested by the defendant, as to the weight to be given to his testimony, and other requested instructions which were duplicates of those given by the court; nor will the refusal of a requested instruction be considered where no error therein is specified in the record or presented in the briefs.</p> <p>Id.—Denial of Motion in Arrest of Judgment—Nonappealable. Order.—An order denying a motion in arrest of judgment is not appealable, and will not be considered upon appeal from the judgment where no error appears therein.</p> <p>Id.—Support op Verdict.—Where the evidence for the people sustains the verdict in every respect, its truthfulness was a question for the jury, and this court will not disturb its finding for alleged insufficiency of the evidence.</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 Orange County, and from an order denying a new trial. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Robbery—Evidence—Conspiracy—Declarations ani> Acts oe Conspirators.—Where the evidence abundantly connects-the defendant appealing with the commission of the robbery charged, and shows a carefully planned conspiracy between him and other defendants jointly charged, to entice an adult daughter from the house of the woman robbed, and to commit the crime while others were absent therefrom, evidence was admissible to show a declaration by»/ one of the defendants to the others three days before the robbery, as-to knowledge that the woman had a large sum of money and some diamonds, that her husband was dead, and it would be easy to get, while the children were absent; and to show other declarations and acts of the conspirators pursuant to the. conspiracy, until the crime was committed in the absence of all other persons from the house than the robbers and the woman robbed.</p> <p>Id.—Evidence op Force—Testimony of Physician—Corroboration of Plaintiff.—The testimony of the physician who attended the prosecutrix after the robbery as to the injuries sustained by her was admissible in corroboration of her testimony as to the use of force and violence by the defendant and his associates when the robbery was committed, and brutal maltreatment of her person by them.</p>

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

<p>Criminal Law—Murder—Support of Verdict in Second Degree— Quarrel—Inference of Premeditation.—Where it appears that after a quarrel between defendant and the deceased, who had been drinking, but had exhibited no weapon and made no threat against the defendant, defendant deliberately left the room, saying that he would "fix” deceased, and presently returned, and, without warning, fired the fatal shot, the jury had the right to infer that he left the room with the deliberate and willful intention of killing the deceased, and its verdict of murder in the second degree is sufficiently supported. It cannot be said, as matter of law, that the shot was fired upon a sudden heat of passion, and constituted only the crime of manslaughter.</p> <p>Id.—Province of Jury—Inference from Facts—Appeal.—The question as to the sufficiency of the evidence to warrant a verdict, both as to the guilt of the defendant and as to the degree of his crime, where they have a right to draw an inference from the facts proved, is peculiarly a question for the jury; and with its determination it is not the province of the appellate court to "interfere.”</p> <p>Id.—Evidence of Physician as to Position and Course of Bullet.— It was proper to allow a physician who had examined the wound and had extracted the bullet from the deceased to testify to the facts to show its position, the course taken by the bullet, and the place of entrance and exit.</p> <p>Id.—Comments of District Attorney as to Instructions.—The district attorney in his argument might legitimately call the attention of the jury to the fact that instructions were prepared by counsel and often stated hypothetical circumstances and conditions, which made it necessary for the jury to look at them carefully and critically, if there was no intimation that they should disregard the instructions.</p> <p>Id.—Assignment of Error as to Instructions Refused or Given.— Where counsel rely upon error on the refusal of the court to give a requested instruction, they must state the instruction and point out the reason why they think the court erred in refusing to give it; and the same rule obtains in regard to the giving of an instruction to which objection is made. If this rule is not followed, the instruction given or refused will not be considered.</p>

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

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

Carroll Cook, Judge. The facts are stated in the opinion of the court in this case, and in the case of People v. Caulfield, supra.

<p>Divorce—Extreme Cruelty—Grievous Mental Suffering—Sufficiency of Complaint.—A complaint charging the defendant with extreme cruelty and grievous mental suffering for five years before suit, in exercising and maintaining an unreasonable espionage over plaintiff and his affairs, and manifesting unreasonable, improper and unnecessary jealousy of plaintiff, and making false charges of infidelity, knowing them to be false, and spying upon him in an offensive manner, and prying into his personal affairs, as a physician, and seizing and keeping letters addressed to him by patients, and in instigating her son in law to make a violent personal assault upon plaintiff, sufficiently'states a cause of action for a divorce on the ground of grievous mental suffering, as against a general demurrer.</p> <p>In..—Serious Pers.onal Injury as Result of Assault—Special Demurrer—Factor in Mental Suffering.—Where plaintiff alleged that defendant instigated her son in law at their residence to make a violent personal assault upon plaintiff, “as a result of which plaintiff sustained serious personal injury,” upon a special demurrer for ambiguity, “that it does not appear therefrom how the plaintiff could have sustained serious personal injury from an assault,” if the clause objected to be eliminated, and if the assault did not and could not have caused serious personal injury, it is sufficient that the assault could have been one of the factors in causing the plaintiff grievous mental suffering.</p> <p>Id.—Letters to Plaintiff from Patients—Particulars not Required.—The complaint need not state the date of the letters from patients kept by the defendant, nor by whom they were written, nor their contents.</p> <p>Id.—Rules of Pleading—Ultimate Pacts—Evidence—Conclusions. Ultimate facts constituting the cause of action need only be stated in a pleading. It is not required to set forth evidence nor conclusions of law.</p> <p>Id.—Questions for Trial Court.—The question as to whether or not the evidence was sufficient to prove the ultimate facts alleged, and the question as to whether or not the various acts and conduct of the defendant set forth in the complaint caused the plaintiff grievous mental suffering, were questions df fact for the trial court.</p> <p>Id.—Ruling upon Evidence not Prejudicial.—The judgment will not be reversed for rulings upon evidence which could not be prejudicial to the appellant.</p> <p>Id.—Support of Pindings and Judgment.—Where the evidence, though conflicting, is sufficient to support the findings for the plaintiff, and to justify the trial court in adjudging that the plaintiff was entitled to a divorce, and that the defendant was at fault, and that the parties could not safely live together, its conclusions will not be. disturbed upon appeal.</p>

<p>Corporations—Power op Directors to Levy Assessments upon Stock—Meetings op Board—Strict Pursuance of Law.—An assessment upon the capital stock of a corporation can be levied by its board of directors only at a regular meeting, or at a special meeting regularly called. The proceedings by which the stock of a stockholder is to be forfeited must be strictly pursued; and the right to levy an assessment can only be legally exercised in the manner provided by law or by the charter of the corporation.</p> <p>Id.—By-laws—Code Provisions—Invalid Adjournment of Regular Meeting—Void Levy op Assessment.—Where the by-laws of the corporation provide for a regular monthly meeting of directors at a fixed time, and for notice to all of the directors of every other meeting, the code provisions are applicable making the majority of the directors a quorum, and making no act done valid unless a quorum is present; and a minority of the directors present at a regular meeting cannot legally perform the act of adjourning such meeting to a fixed date. When a bare majority of the directors present at such adjourned meeting, without notice to the other directors thereof, assumed to levy an assessment upon the capital stock, such assessment is without authority of law, and void.</p> <p>Id.—Action to Becover Stock Illegally Sold—Pleading—Value and Injury not Alleged—Presumption—Office of Directors.—In an action by a stockholder to recover 46,900 shares of stock illegally sold under such void assessment, it was not necessary for the complaint to allege the value of the stock, or that the plaintiff had been injured. It will be presumed that it had some value; and where it appears that plaintiff was a director of the corporation, without notice of the meeting at which the void assessment was levied, and not participating therein, its reissuanee to him will at least entitle him to hold the office of director, to which he was elected, and also to participate in the meetings of the stockholders.</p> <p>Id.—Estoppel of Corporation.—The defendant corporation will not be allowed to acquire the title to plaintiff’s entire corporate stock through an illegal sale, under a void assessment, and hold it for the alleged reason that it does not appear to have any value.</p>

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

<p>Unlawful Detainer—Sufficiency of Complaint—Change in Terms of Verbal Lease—Differing Statements.—The complaint in an action of unlawful detainer brought by a lessee for two years against a prior tenant under a verbal monthly tenancy is not rendered insufficient to state a cause of action because it avers that the former verbal rental was $35 per month, and also avers a notice ’ increasing the monthly rental to the sum of $150 per month, which was not paid, after demand, in which the prior rental was stated at $40 per month.</p> <p>Id.—Main Object of Notice.—The main object of the notice was to increase the monthly rent, the failure to pay which, after proper demand, constituted the cause of action.</p> <p>Id.—Appeal—Absence of Evidence from Bbcord—Presumption.— Upon appeal by the .defendant from a judgment for the plaintiff, where no evidence is set forth in the record to show what was in fact the amount of the prior verbal rental, changed by plaintiff’s notice to the larger sum, it must be presumed in favor of the judgment that the evidence showed, or that it was stipulated, that the prior rental was in fact $40, as stated in such notice, and that the amount was erroneously stated in the complaint.</p> <p>Id.—Form of Demand for Bent—Three Days ’ Notice not Required to be Specified.—A demand by the plaintiff in writing that the defendant pay the increased amount of rental for the ensuing month or months, stating the amount of rent due, and demanding that defendant pay the same or deliver up the possession of the premises, is sufficient in form,' and is not required by the statute to state in terms that the rent must be paid within three days.</p> <p>Id.—Statute to be Bead with Notice.—The statute fixes the period of three days, and is to be read in connection with the notice; and when the period of three days has expired, the tenant has had notice for three days, which is in substance three days’ notice in writing.</p> <p>Id.—Contents of Plaintiff’s Lease not Required to be Stated.—It was unnecessary that the plaintiff should set forth in the complaint the contents of the lease that he had acquired from the. owner of the property. The lease alleged was in effect a conveyance from the owner to the plaintiff for the purposes stated for the term of two years.</p> <p>Id.—Eights op Lessee.—The lessee for years had the right to terminate the monthly tenancy of the prior tenant, or to change the terms of such tenancy by a proper notice in writing to that effect.</p>

<p>APPLICATION for writ of review to annul an order of the Superior Court of Los Angeles County allowing the filing of an amended demurrer.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mechanic’s Lien—Abandonment " by Contractor—Insufficient Complaint by Materialman.—A complaint by a materialman to foreclose a lien, which shows that the contractor to whom the materials were furnished for the construction of the building abandoned his contract, is insufficient where it fails, to show that any balance was due to the contractor when the work was abandoned, or that the value of the work done and materials furnished by him exceeded the sum then due to the contractor, or that there was anything owing to the contractor when the lien was filed.</p> <p>Id.—Findings Under Complaint—Judgment Unsupported.—Findings corresponding to such insufficient complaint cannot support a judgment for the foreclosure of the lien.</p>

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

<p>Appeal from Judgment—Bill of Exceptions Part of Judgment-roll —Presumption.—Upon an appeal from the judgment a bill of exceptions contained in the record is part of the judgment-roll, and is presumed to contain all of the evidence material to the rulings to which exceptions were reserved and which are specified therein; and in such case no intendment can exist in support of the judgment that error therein was caused by evidence not contained in the bill of exceptions.</p> <p>Action of Eorcible Entry—Answer Piled Too Late Before Default Entered—Bule in Civil Actions Applicable.—In an action of forcible entry, where an answer is filed after the expiration of the time limited, the same rule should be applied as in ordinary civil actions, which is that default should not be entered until the answer shall have first been 'stricken from the files.</p> <p>Id.—Motion to be Believed from Default in not Answering in Time —Mistake.—Upon a motion to be relieved from default in failing to file an answer in time, the character of the mistake resulting in the default is to be ascertained by the court from the facts before it, and not from the conclusion of the counsel or the party that the act was a mistake.</p> <p>Id.—Discretion of Court—Sufficiency of Excuse.—The question whether or not the circumstances of the particular case are such that the mistake or inadvertence should be excused is one the determination of which must of necessity be left largely to the discretion of the trial court to which the application is made, and its discretion will not be interfered with upon appeal, except where there is a clear abuse of discretion.</p> <p>Id.—Affidavit of Merits—Verified Answer.—A verified answer which denies every material allegation of the complaint is a sufficient affidavit of merits.</p> <p>Id.—Answer After Default not Entered.—Where the defendant answers after a default which has not been entered, though out of time, and without leave, his default cannot be entered while the answer stands. Such an answer is not a nullity.</p> <p>Id.—Practice—Motion to Strike Out Answer—Discretion of Court. In such ease the proper practice is for the plaintiff to move to strike the answer from the files, though he is not entitled as of right to have it stricken out. The discretion to do this is lodged in the court, which has absolute power either to retain the answer, or to permit another to be filed, or pursue whatever course the justice of the case may require.</p>

PETITION for writ of review to annul an order of the Superior Court of Los Angeles County confirming a sale of personal estate of a decedent. 6. A. Gibbs, Judge. The facts are stated in the opinion of the court.

<p>Specific Performance—Unilateral Contract to Sell—Withdrawal, of Offer—Findings and Decree—Beturn of Small Check.—■ Although a unilateral contract to sell land signed by the vendor is sufficient to satisfy the statute of frauds, and might be enforced if fully performed by the purchaser, or if performance was fully tendered before rescission of the contract, provided the consideration was fair and adequate, yet, where the court finds that the consideration was not fair or adequate, and that the only consideration received by the vendor was an uncashed cheek for $10, which was tendered back on the same day it was received, and that the offer to sell was then withdrawn before any other performance or offer of performance was tendered by the vendee, and that the property had not increased in value, the court properly refused to decree a specific performance, and properly decreed merely a return of the uncashed check to the vendee.</p> <p>Id.—Bemedy of Plaintiff at Law—Power of Court of Equity.— The vendee, after the withdrawal of the offer and the tender back of the uncashed check, was not entitled to a specific performance, and was left to his remedy at law for the relief to which he was entitled. Nevertheless, the court of equity, having jurisdiction of the subject matter of an action for a specific performance, had jurisdiction, though denying the specific performance, to award complete relief between the parties by decreeing the return of such check.</p>

<p>Judgment—Motion to Set Aside Default—Insufficient Affidavit of Merits.—A motion to vacate arid set aside a judgment by default, which does not present a verified answer, but sets forth an affidavit of merits, which fails to show that the defendant had stated all of the facts of the case to her counsel, but in that regard merely states “that affiant has fully and fairly stated the facts constituting her defense to the cause of action set out in the complaint in said action to her counsel,” etc., is insufficient; and an order setting aside the judgment upon such affidavit must be reversed.</p>

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

<p>Unlawful Detainer—Vacation of Verdict for Defendant on Court’s Own Motion.—In an action of unlawful detainer, where it appears that ten months ’ rent was unpaid, and that the plaintiff was clearly entitled to a verdict for the possession of the premises and for the whole rent due, the court might properly have directed a verdict for the plaintiff, and a verdict for the defendant might properly be set aside by the court on its own-motion under section 662 of the Code of Civil Procedure.</p> <p>Id.—Recitals in Settled Statement—Request by Attorney—Order on Court’s Motion—Conclusiveness.—Where the statement on appeal shows that plaintiff’s attorney asked for the order and called the attention of the court to section 662 of the Code of Civil Procedure, and, after stating the verdict, expressly recites that “the court vacated the verdict of its own motion” on both the grounds stated in that section, the recitals are conclusive that the order was made by the court on its own motion, and not on any formal motion by plaintiff’s attorney for a new trial.</p> <p>Id.—Grounds Stated—Plain Disregard of Instructions and of Evidence—Appeal—Order Sustainable on Either Ground.—Where both grounds stated in section 662 of the Code of Civil Procedure, namely, such a plain disregard of the jury of the instructions of the court, and such plain disregard of the evidence in the ease, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice, were relied upon by the court, its order may be sustained on appeal if sustainable on either ground. Held, that the order is sustainable on the ground of such a palpable disregard of the evidence as to show prejudice on the part of the jury.</p> <p>Id.—Tender of Bent Befused not Kept Good by Deposit—Eefusal to Pay Bent on Demand.—Where the tenant tendered the rent each month in advance to the vendee of the lessor, who refused the same, but the tenant did not keep the tender good by deposit thereof in bank to the credit of the lessor, and such tender and refusal continued for ten months, such grantee was entitled to demand the whole amount of the rent due for the ten months or that the tenant surrender possession, and upon his failure to make such payment within three days, the plaintiff is entitled to recover the-premises and the whole rent due.</p>

<p>Attachment—Motion to Discharge Writ—Insufficient Complaint-Amendable.—A motion to discharge a writ of attachment for insufficiency of the complaint to state a cause of action. cannot perform the office of a demurrer, and where it appears that the-complaint may be amended so as to state a cause of action, the-writ cannot be discharged on that ground.</p> <p>Id.—Fatally Defective Affidavit not Amendable.—A fatally defective affidavit for attachment cannot be amended so as to meet a. motion to discharge the writ, and, in such case, the writ should be discharged on that ground.</p> <p>Id.—Insufficiency of Affidavit as to Creditors.—Where the writ, of attachment was .against the maker and indorsers of a promissory note, an affidavit for the writ, merely stating “that the attachment is not sought and the action is not prosecuted to hinder,, delay or defraud any creditor or creditors of the defendants, ’ ’’ without adding the words, “or any creditor of either of said defendants,” is fatally defective; and a motion to discharge the-writ on that ground should have been granted.</p>

<p>Claim and Delivery by Payee op Notes—Part Payment by Guardian op Incompetent Person—Parties—Accounting with Ward.—In an action of claim and delivery by the payee of notes, who has the right of custody thereof, as against the guardian of an incompetent ward, who was maker of part of the notes, and had no interest or right of possession in any of them, the ward, a part of whose money, while incompetent, the guardian had applied as part payment on his notes, was not required to be made a party to such action merely because, in the matter of an accounting between the guardian and the ward, the latter had objected to the payments made on his notes, which was a matter to be determined by the court having jurisdiction of the guardianship.</p> <p>Id.—Claim op Interest in Notes—Failure to Find—Absence op Evidence.—A claim of interest on the notes by the defendant as her separate property, where there is an entire absence of evidence in the record to support a finding thereupon, does not require a finding. A judgment will not be reversed for failure to find upon a material issue, if the finding 'must have been adverse to the appellant, and the findings as made support the judgment.</p> <p>Id.—Value op Notes Immaterial—Moot Question.—Where the notes were deposited with the clerk of a trial court, for delivery to plaintiff if the judgment shall he affirmed, the court in affirming the judgment will not inquire into the value of the notes, which has become a mere moot question.</p>

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

<p>Action fob Breach of Contract—Failure to Deliver Agreed Machine—Damages—Evidence—Price of Equivalent Machine not Shown.—In an action for breach of contract to sell and deliver a particular machine contracted for, where one of much less capacity was • delivered, and there is no "sufficient evidence to show the price at which an equivalent machine of the same style and pattern as that purchased could have been bought in the market nearest to that where it should have been placed in the purchaser's possession, the measure of damages provided for in section 3354 of the Civil Code cannot be allowed. The price at which other machines of different patterns and specifications could be purchased in the nearest market, though similar in character and equally good, cannot be deemed the equivalent of the machine purchased.</p> <p>Id.—Part Payment of Price—Special Damage not Shown—Amount of Recovery.—Where the evidence does not justify the measure of damages prescribed in section 3354 of the Civil Code, and no special damages are alleged or shown, and only a small payment was made upon the purchase money in the sum of $25, besides $35 paid on account of freight on the machine wrongfully delivered, the recovery was properly limited under section1 3308 of the Civil Code to the amount paid on the purchase price and the said sum of $35 so paid on freight.</p> <p>Id.—Small Additional Sum not Allowed—Rule De Minimis.—The , fact that a small additional sum paid might have been recovered will nót be ground for reversal where the rule, “De minimis non curat lex,” is applicable.</p>

<p>APPLICATION for reduction of bail upon habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank J. Murphy, Henry Ach, and M. C. Chapman, for Petitioner.</p>

MOTION to dismiss an appeal from 'an order of the Superior Court of Los Angeles County fixing the compensation of the attorney for an executor. James C. Rives, Judge. The facts are stated in the opinion of the court. Edgar E. Lefevre, McNutt & Hannon, Edward G. Kuster, and Edward L. Hutchinson, for Appellants.

W. E. Greene, Judge, rendering judgment. John Ellsworth, Judge, denying a new trial. The facts are stated in the opinion of the court.

<p>Bivery-stable Business—Nuisance.—The business of running a livery-stable is not a nuisance per se. Whether a stable is a nuisance depends upon the manner in which it is conducted.</p> <p>Id.—Void Bestriction upon Building Permits—Consent of Property Owners.—A restriction in a municipal ordinance of the city and county of San Francisco upon the granting of permits by the board of public works for the building of livery-stables to cases where the applicant presents “the written consent of the owners of' property within two hundred feet of the stable,” is unreasonable and void, as vesting in private individuals the arbitrary power to-determine whether the owner of real property may use it in the pursuit of a lawful occupation.</p> <p>Id.—Mandamus to Compel Permit.—Such restriction bejng void, mandamus will lie at suit of an applicant for a permit for the building of a one-story livery-stable to accommodate more than six horses, as. provided for in the ordinance, to compel the granting of such permit, if refused solely on the ground that the required written consent of property owners was not presented by the applicant.</p> <p>Id.—General Demurrer to Complaint for Writ—Cost of Building— Uncertainty—Amenable Defect—Review upon Appeal.—When the demurrer to the complaint for the writ of mandate in the court below was general only, and the complaint showed that the-permit for the building was refused solely for want of consent of -adjoining property owners, but failed to state specifically whether the building was to cost more than $1,000, in which ease it would be good under the building ordinance, or less than $1,000, in which case it would be defective, but the record upon appeal shows that it was to cost more than $1,000, the defect in the complaint is one. that could have been easily remedied, if it had been pointed out and relied upon in the trial court, and, under the circumstances, the objection to uncertainty in the complaint upon appeal is without merit.</p>

<p>PETITION for discharge on writ of habeas corpus, directed to the sheriff of San Diego County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Barbara County setting aside a judgment. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Prohibition—Jurisdiction or Justice’s Court—Misdemeanors—Postponement or Trial Armt Mistrial—Discretion—Abuse—Remedy by Appeal.—The writ of prohibition will not lie to prevent a trial for misdemeanor in the justice’s court, by reason of postponements of the trial, after mistrial resulting from failure of the jury to agree upon a verdict, where such postponements do not exceed the limit of sixty days. The court had discretion to postpone it for cause within that limit, and the suitable remedy for any abuse of its discretion is by appeal from the judgment upon a proper record.</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. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>