Volume 8 — California Appellate Reports

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

<p>Action fob Services of School Teacher—Term of Employment— Support of Findings—Conflicting Evidence.—In an action by a school teacher to recover for services under an alleged contract of employment for the fall and spring terms of a district school, in which the findings upon issues joined were for the defendants, that the contract of employment was only for the fall term at an agreed rate, and that he was fully paid for his services rendered, and were supported by evidence tending to prove them, the findings cannot be disturbed upon appeal, notwithstanding conflicting evidence for the plaintiff to the contrary.</p> <p>Id.—Omission to Find—Facts Admitted by the Pleadings.—The court was not required to find upon facts admitted by the pleadings.</p> <p>Id.—Evidence—Declarations of Plaintiff Contrary to His Testimony.—Evidence was admissible to show that plaintiff had made declarations to witnesses tending to dispute the testimony of plaintiff as to the term for which he had been employed.</p> <p>Appeal under New Sections—Written Record—Printing Required in Briefs.—Where an appeal is taken under the new sections 941a, 941b and 941c of the Code of Civil Procedure _ (Stats. 1907, p. 750), upon a written record made as prescribed in the same code, in the new sections 953a, 953b and 953c (Stats. 1907, p. 753), the briefs of counsel are required to print so much of the written authenticated transcript upon appeal as they desire to call to the attention of the appellate court; and it is not contemplated that they should merely refer in their briefs to the pages of the written transcript, and throw upon this court the labor of examining the same.</p>

<p>PETITION for writ of mandate to the Judge of the Superior Court of Sacramento County. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Constitutional Law—Construction on Provision Against Increase on Salaries-—-Term on Office—Appointees During Pleasure.— The prohibition in section 9 of article XI of the state constitution that the ‘‘ compensation of any county, city, town or municipal officer shall not be increased after his election or during his term of office," applies only to officers who have a fixed and definite term, and does not apply to appointive officers who hold merely at the pleasure of the appointing power.</p> <p>Id.—Power of Legislature—Increase of Salary of Deputy County Surveyor.—The legislature has power to increase the salary of a deputy county surveyor during the time of his holding of the deputyship, since he holds it only during the pleasure of the county surveyor who appointed him.</p>

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

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

<p>Appeal—Presumption—Burden on Appellant.—On appeal, it must be presumed that the proceedings of the lower court were regular, where the record does not show the contrary, and it is incumbent on the appellant to show error affirmatively.</p> <p>Id.—Review op Instructions—Stipulation—Error not Shown.—Although the record shows a stipulation as to what instructions given at the request of the parties and by the court were deemed excepted to, yet where the record does not show what instructions were given at the request of either party, or what instructions were given by the court, but they are all embodied together in the record, objection by the appellant that certain specified instructions were misleading cannot be considered, since it does not appear affirmatively that such instructions were not given at appellant’s request.</p> <p>Assumpsit por Services—Special Contract—Continuance in Employment After Fixed Term—Compensation—Presumption.—In an action of assmnpsit for services, where it appears that plaintiff was hired at a fixed salary under a special contract for a fixed term, and that he continued in the same employment after such term, without any new contract as to compensation, it is presumed that the parties intended the same compensation; and the remedy for the continued salary is by assumpsit on the contract.</p> <p>Id.—Increased Compensation not Becoverable on Quantum Meruit. The contract must control as to the continued compensation, and there can be no recovery upon a quantum meruit for an increased compensation.</p> <p>Id.—Employment by Individual—Continuance Under Incorporation Successor—Evidence.—In an action upon a quantum meruit for the reasonable value of services rendered by the plaintiff to a corporation, where the plaintiff testified that he had drawn a weekly sum from the time of the incorporation, and it appears that prior to that time he had worked for a term of years for the individual who had formed the corporation, and had given his own name thereto, and who controlled the business thereof, evidence to show that the sum drawn weekly under the corporation was the same sum that he had previously received weekly during the whole previous term of employment by the same man who had formed the corporation was admissible, and it was error to exclude it.</p> <p>Id.—Testimony of Plaintiff as Expert—Cross-examination.—Where the plaintiff had testified as an expert that his services to the corporation were worth a large monthly sum sued for, greatly in excess of the aggregate of the sum weekly received by him from the corporation, it was proper to show on cross-examination that he was working for the weekly sum received during all of his service for the owner of the business, both before and after the incorporation, and that his employment under the corporation was merely a continuance of the original contract of employment.</p> <p>Id.—Evidence—By-law of Corporation—Duties of Plaintiff as General Manager.—A by-law of the corporation showing the duties of the general manager of the corporation, to which position plaintiff had been appointed, was properly admitted in evidence.</p> <p>Id.—Qualification of Expert Witnesses—Discretion of Court.— The determination of the qualification of expert witnesses who testified to the value of plaintiff's services was matter largely within the discretion of the trial judge, and will not be interfered with where no abuse of discretion appears.</p>

<p>'APPEAL from a judgment of the Superior Court of San Diego County. Benjamin F. Bledsoe, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of review to annul an order of the superior court of Shasta County, refusing to vacate an order granting a writ of mandate. Charles M. Head, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Charter—License Tax—Business op Horseshoeing—■ Penalty.—Where a municipal charter, established by freeholders and approved by the legislature, expressly grants authority to its governing body to license, for purposes of regulation and revenue, every kind of business transacted in the city, such body has power by ordinance to impose a license tax upon the business of shoeing horses within the limits of the municipality for profit, and to make it a misdemeanor to violate the terms of the ordinance.</p> <p>Id.—Power op Begulation—Ordinance por Bevenue.—Since the power to regulate does not extend to a lawful business, not the subject of regulation, an ordinance imposing a license tax on businesses enumerated, according to the amount of business transacted, being within the express authority conferred to tax for revenues, must be presumed to be intended for that lawful object. It cannot be presumed in such case that it was intended for purposes of regulation only.</p> <p>Id.—Horseshoeing a Business “por Propit.”—The occupation of shoeing horses is a business carried on and transacted “for profit” within the terms of the prdinance.</p> <p>Id.—Penalty por Violation op Ordinance por Bevenue.—The municipal authorities have power to impose a penalty for violation of an ordinance imposing a license tax for revenue purposes.</p> <p>Id.—Construction op Penal Code—Freeholders’ Charter.—Section 3366 of the Penal Code, limiting licenses to the purpose of regulation, has no application to a freeholders’ charter, established under section 6 of article XI of the constitution.</p>

PETITION for mandamus to the Judges of the Superior Court of the County of Sacramento. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Shasta County, and from an order denying a new trial. Charles M. Head, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Sweeney & Tillotson, and Reid & Dozier, for Appellants Charles Barner et al.</p> <p>Wm. Singer, Jr., Guy Shoup, and G. O. Perry, for Central Pacific Railway Company, Appellant.</p>

<p>Action to Quiet Title—Laches—Burden of Proof—Reservation— Boundaries—Unstable Finding and Judgment—Prescription— Evidence—Equities.—Held, on the authority of Hill v. Barner, No. 410, supra, this day decided, in reference to the foregoing subject, that the judgment and order denying a new trial in this case should be reversed.</p>

<p>Mechanics’ Liens—Notice of Lien fob Materials—Name Untruly Stated—Loss of Liens.—The requirement of section 1187 of the Code of Civil Procedure, that the notice of lien shall state the person to whom the materials were furnished, requires that the name be truly stated; and where the evidence shows without conflict that they were furnished to another person than the one stated in the notice of lien and in the complaint, the notice does not comply with the statute, and cannot be the basis for the enforcement of a lien on the land of the owner.</p> <p>Id.—Substantial Compliance with Statute Essential—Judicial Power.—One who desires to avail himself of the provisions of the mechanic’s lien law, so as to Charge the land or building of a third party with a debt incurred by another, must substantially comply with the statutory requirements as to making out in writing and verifying his claim of lien. The courts have no power to dispense with the plain requirement of the statute.</p>

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

Peter J. Shields, Judge. The facts are stated in the opinion of the court in this ease and in the case of W. P. Scott, Petitioner, v. Superior Court, etc., Bespondents, filed March 27, 1908, and reported ante, p. 12, [96 Pac. 385.]

<p>Criminal Law—Instructions—Reasonable Doubt.—An instruction to the jury on the subject of reasonable doubt, giving substantially the definition by Justice Shaw in Commonwealth v. Webster, 5 Cush. 320, and adding that “a reasonable doubt is a doubt based upon reason, and growing out of the testimony and evidence in the case," is not erroneous.</p> <p>to.—Repetition oe Instructions.—It is not the duty of the court to repeat an instruction to the jury, at the request of the defendant, which is given elsewhere in the charge.</p> <p>Id.—Requested Instruction—Presumption oe Innocence—Substantial Embodiment in Charge.—It was not prejudicial to refuse a requested instruction as to the presumption of innocence that “it is the duty of the jury, if possible, to reconcile the evidence with this presumption," where an intelligent application of the instruction given, which it must be presumed was given by the jury, must necessarily have led the jury to consider the evidence with the presumption present in their minds, and they could not have reached a verdict of guilty without having found that the evidence could not be reconciled or made consistent with the presumption of innocence.</p> <p>Id.—Caution Against “Popular Peeling"—Inapplicable Request.— It was not error to refuse to caution the jury at defendant’s request against being swayed “by popular feeling," or to inform them “that the multitude are not the judges of this case,” where there is nothing in the case to suggest that “popular feeling" had in any manner been aroused or manifested in any way, or in any way calculated to arouse popular feeling.</p>

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

<p>Wills—Construction.—A will should be so construed as to carry out the desire and intention of the testator, if it is reasonably possible to do so from the words used, and so as to prevent intestacy if reasonably possible. The will and its entire scheme, the property disposed of, the persons named as devisees or legatees, the words and the context, should be considered together. The technical import of words should not prevail over the obvious intent of the testator, and words should be construed with reference to the surroundings.</p> <p>Id.—Will and Codicil—Disposition op Monet in Will—"Belongings” in Codicil.—Where the body of the will disposed of the money of the testatrix to various legatees, in specified sums, and bequeaths a specific sum to a last named legatee, provided there should be money enough to pay it after the other legacies and all just debts were paid; and the codicil leaves to the last named and another legatee "all my belongings, furniture and clothes included,” the codicil is not to be construed as including any money, but as. meaning her furniture, clothes, pictures, jewelry, dishes, and things ordinarily used by her for her personal comfort.</p> <p>Id.—Residue op Monet—Distribution to Sole Heirs.—Where it appears that the money of the testatrix was more than sufficient to pay the debts, expenses of administration, and all legacies, the residue of the money does not pass under the codicil, but was properly distributed to the sole heir of the testatrix.</p>

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

<p>¡Landlord and Tenant—Lease op Asparagus Tract—Unconditional Bent—Loss op Crop by Flood—Bent not Apportioned.—Under a lease of an asparagus tract of fifty-five acres for the period of ten months from November 30th, at an unconditional rental of $2,500, the sum of $2,250 of which was paid in advance, and the remainder of which was to be paid April 1st of the next year, on or about which date nearly the whole annual crop was destroyed by flood (the roots being uninjured), the tenant must bear the loss of the annual crop, and cannot claim any apportionment of rent, nor recover back any part of the rent paid in advance.</p> <p>Id.—Construction op Code—Destruction op Thing Hired—Bescission—Thing Leased not Destroyed—Tenant’s Loss.—It is only where the body or greater part of the thing hired is destroyed that the hirer may terminate the hiring before the end of the term, under section 1032 of the Civil Code, which has no application to a lease, under which no part of the thing leased has been destroyed. In the present case, the thing leased was the land and asparagus beds, without any existing crop thereon, no part of which was destroyed. The only thing destroyed being the growing crop, which, under section 1926 of the Civil Code, belongs to the tenant, the loss thereof must fall upon him.</p>

<p>Nonsuit—Effect of Motion.—A motion for a nonsuit at the close of the plaintiff’s case practically operates as a demurrer to the evidence, and must assume that all of the facts proved in support of the material allegations of the complaint are true, and raises only a question of law; and if the evidence tends to establish the averments of the complaint, or makes a prima facie ease, the motion must be denied.</p> <p>Id.—Error in Evidence not Reviewable.—Error in the admission of evidence for the plaintiff cannot be reviewed upon motion for a nonsuit; and all relevant testimony received must be given its full probative force, whether erroneously admitted or not.</p> <p>Id.—Erroneous Nonsuit in Action upon Note—Ownership—Right to Sue—Indorsement of Payee.—The court erroneously granted a nonsuit in an action upon a note, on the ground that the cor- • poration plaintiff “had not proved that it was the owner of the note, and that it had no right to sue thereon,” where its incorporation was admitted, and the evidence showed that the payee ' of the note took it for the benefit of the corporation, and indorsed, assigned and transferred the same to the corporation, and the evidence for plaintiff tended to prove all of the material allegations of the complaint.</p>

<p>Criminal Law—Impanelment of Jury—Qualifications op Jurors— Expression of Opinion Founded on Published Statements.—In the impanelment of a jury in a criminal case, the formation and expression of an opinion, founded on public rumor, statements in public journals or common notoriety, do not disqualify a juror from serving on the jury, if it appears to the court, upon his voir dire, that he could and would try the ease fairly and impartially, regardless of such opinion, and return a verdict in accordance with the evidence adduced and the instructions of the court.</p> <p>Id.—Province of Trial Court.—It is the province of the trial court, even where the answers of the juror are conflicting as to his qualifications, to decide whether he is qualified, and a finding thereon cannot be disturbed by the reviewing court, unless it can be truthfully said that the testimony shows on its face that, as matter of law, the court erred in its ruling.</p> <p>Id.—Error in Denying Challenge for Actual Bias—Peremptory Challenges not Exhausted.—Even though errors should appear in disallowing challenges for actual bias, the defendant has no ground of complaint if he has not exhausted his peremptory challenges.</p> <p>Id.—Presumption upon Appeal.—In the absence of a showing in the record whether or not the defendant‘had exhausted his peremptory challenges, it being his duty to show prejudicial error afiirmatively, it must be presumed that he was not prejudiced by the disallowance of his challenge for actual bias.</p> <p>Id.—Murder—Pleas of “Former Acquittal” and “Once in Jeopardy”—Error of Clerk Without Prejudice.—Although the clerk erred in not stating to the jury pleas of “former acquittal” and “once in jeopardy,” set up by the defendant, yet such error is not prejudicial, where the record, shows no attempt to introduce any evidence in support of either of those pleas.</p> <p>Ib.—Order for Control op Jurors by Sheriff Before Completion op Panel—Separation.-—-Where the jurors sworn pending the completion of the panel were ordered into the custody of the sheriff, “while retiring,” and it was not intended by the court nor understood by defendant and his attorneys that the order was made under section 1121 of the Penal Code, and it was applied by their consent to custody during the noon recess only, and was so applied by consent after the panel was completed, and there was no separation under the order as thus interpreted, the order is not reversible error, and a temporary separation of the jurors under that order at other times is not reversible error, when it appears that an order made at the close of the trial for the custody of the whole jury, under that section, was fully obeyed.</p> <p>Id.—Testimony op Defendant as to Self-defense—Scope op Cross-examination.—Where the defendant as a witness testified only to facts constituting self-defense in the commission of the homicide, such testimony involved the whole case, and the prosecution were entitled to cross-examine him as to all the circumstances leading up to, and connected with, the homicide.</p> <p>Id.—Evidence—Crippled Condition op Deceased—Rebuttal—Order of Proof.—Testimony to show the crippled condition of the left arm of the deceased, in the trend of which defendant testified that he advanced upon him with a knife, when he shot him, was clearly admissible in rebuttal; but the production of such evidence out of its proper order would not warrant a reversal of the case.</p> <p>Id.—Corpus Delicti—Declarations—Order of Proof—Discretion.— Although ordinarily proof of the corpus delicti should precede proof of the declarations or admission of the defendant, yet the order of proof being in the sound discretion of the court, and it appearing that the corpus delicti was fully proved, after the declarations were proved, it is evident that defendant was not prejudiced by the change in the order of proof.</p> <p>Id.—Model of Porch Where Shooting Ocourred—Explanation op Evidence—Hindrances to View.—A correct model of the porch where the shooting occurred conceded as not representing hindrance to view by growing vines about the trellis-work or otherwise, but faithfully representing the porch itself, was properly received for the purpose of illustrating the testimony of witnesses as to the place of the shooting, where the conditions surrounding- and obstructing the view were fully explained by witnesses.</p> <p>Id.—Instructions.—Seld, that the instructions given by the court were full, fair and pertinent to all of the material issues presented by the information and the evidence; and that instructions offered by the defendant and refused were, where applicable to any important issue, fairly presented in the charges; and that no prejudicial error appears on the refusal of requested instructions.</p> <p>Id.—Instruction as to Flight.—Although the defendant finally surrendered himself voluntarily, yet where there was evidence that the accused was seen on horseback after the homicide, to which he referred, and stated that he wanted to see his father and get money with which to leave the country, an instruction as to flight was appropriate, and not presumed prejudicial.</p> <p>Id.—Instruction as to Commonplace—Ambiguity Behoved.—An instruction based on subdivision 2 of section 2061 of the Code of Civil Procedure involves mere matter of commonplace, and when an ambiguity therein is clearly stated in the latter part of the instruction, no prejudicial error appears. It ought not to be necessary to tell a jury of average intelligence, under that section, that they need not accept the testimony of any number of witnesses if it does not convince them of the truth of the fact to which it relates.</p> <p>Id.—Instruction as to Matter of Belief, Inferences, etc.—Beld, that though a requested instruction under section 1845 of the Code of Civil Procedure, that the jury must disregard any part of the testimony of a witness which involves only his “belief, or his inferences, or his impressions, or his deductions,” might have well enough been given, the defendant was not prejudiced by its refusal.</p>

<p>Building Contract—Action by Contractor for Compensation—Percentage of Cost—Filing Unnecessary.—A written contract between the owner of a lot and a contractor, as an agent for the owner, to construct a building thereupon for a compensation of ten per cent of the actual cost thereof is valid between the parties, without being filed with the recorder, although the amount to be expended in cost is the sum of $4,000, where no right of any claimant of a lien is involved, but the controversy wholly relates to the extent of the compensation of the contractor, in a suit by him against the owner of the property.</p> <p>Id.—Pleading—Performance of Conditions by Plaintiff—Proof.— In the action by the contractor, the performance of the conditions on his part under the contract need not be set forth in full in his complaint; but it is sufficient to state generally that the plaintiff duly performed all the conditions of the contract on his part to be performed. If such allegation is controverted, the plaintiff must establish on the trial facts showing such performance.</p> <p>Id.—Findings—Averments in Answer Involving Denial of Performance—General Finding Sufficient.—It was not necessary that the court in its findings should negative facts affirmatively averred in the answer, which are merely another form of denial that plaintiff had performed the conditions of the contract. In such case, it is sufficient to find that all of the allegations of the complaint are true, which negatives every form of denial that the plaintiff had performed the terms and conditions of his contract.</p> <p>Id.—Construction of Findings—Support of Judgment.—Findings should be so construed as to support the judgment, where it can be done; and if, taking them as a whole, in view of the entire record, they fairly dispose of the material issues raised by the pleadings on which evidence was offered, the judgment will be upheld.</p> <p>Id.—Conflicting Evidence as to Character of Work—Province of Trial Court—Findings not Disturbed.—Where the evidence was conflicting relative to certain portions of the work and finish of the building, and as to whether it was done in a workmanlike manner, it was within the province of the trial court, which saw and heard the witnesses, to determine such conflict; and the findings in favor of the plaintiff, which are sufficient to support the judgment in his favor, will not be disturbed upon appeal.</p>

PETITION for writ of mandate to the controller of state, to compel receipt for the amount of an inheritance tax. The facts are stated in the opinion of the court.

<p>Negligence—Injury to Gatekeeper—Careless Driving of Truck— Contributory Negligence—Question of Fact.—In an action for personal injuries sustained by the plaintiff, while in the performance of his duties as gatekeeper, by the careless driving of a truck of the defendant, whereby the gateway and the adjoining fence were thrown upon plaintiff to his injury, where the only question involved upon appeal from the judgment in favor of the plaintiff is that of his contributory negligence, the judgment will not be disturbed, where the record shows that it was fairly debatable whether plaintiff’s conduct was not that of a reasonable, prudent and cautious person, and that the question of its determination was one of fact for the jury, whose conclusion is binding upon appeal</p> <p>Id.—Wideness op Gate—Facility fob Entrance—Proper Position op Plaintiff.—Where it appears that the gate was sufficiently wide for the easy entrance of the truck, with proper driving, and that the plaintiff was at a convenient place for the discharge of Ms duties as gatekeeper, and where he was accustomed to stand while the gate was being used, it cannot be said, as matter of law, that Ms position was one of danger.</p> <p>Id.—Position When not One op Danger.—A position is not one of danger if a person occupying it can come to harm only through lack of ordinary sMll and care on the part of another.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Lewis H. Smith, F. G. Ostrander, Raleigh E. Rhodes, and Geo. G. Goucher, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura County, and from an order denying a new trial. Felix W. Ewing, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Clarke & Farrand, Wellborn & Wellborn, Chas. S. Burnell and Charles E. Haas, for Appellant.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Mateo County, and from an order denying a new trial. A. L. Rhodes, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Drown, Leicester & Drown, and D. M. Delmas, for Appellant.</p>

<p>Water Bights—Damages for Nondelivery by Water Company— Sufficiency of Complaint.—A complaint to recover damages for nondelivery of - water by the defendant water company to the plaintiff for irrigation of his lands, which shows that plaintiff is entitled to the water claimed for that purpose, and which alleges the demand and tender of established water rates, and all the facts contemplated in section 10 of the “Act to regulate the sale, rental and distribution of water in this state,” approved March 12, 1885, as a precedent to, and as a basis for, the liability of the water company for damages to the extent of the injury sustained by the plaintiff, states a sufficient cause of action.</p> <p>Id.—Sufficiency of Water to Supply Needs—Preference of Other Customers—Matter of Defense.—Where the complaint alleges a sufficiency of water to supply the demands of the stockholders and of the plaintiff at the time of his demand and tender, and does not show any facts entitling any stockholders to a preference under section 552 of the Code of Civil Procedure, such preference does not arise upon the demurrer, but is matter of defense to be disclosed by the answer.</p> <p>Id.—Need of Irrigation for Plaintiff’s Lands—Loss of Alfalfa Crop.—The need of irrigation for plaintiff’s lands, and that irrigation would benefit them, is sufficiently shown by the averment “that by reason of the refusal of said defendant to furnish plaintiff with water as aforesaid, the said crop of alfalfa growing on said tract of land has become lost and destroyed.”</p> <p>Id.—Averment of Tender—Presumption.—The averment that the plaintiff tendered to the defendant in cash the sum of one hundred dollars in advance for the payment of such waters as might be furnished by the defendant at the rates established by the board of supervisors, is not open to attack by general demurrer, and in considering the complaint it cannot be presumed that the tender was objected to by the defendant, as to its form or the sufficiency of the amount offered.</p> <p>Id.—Befusal Prior to Demand—Specific Demand and Tender Waived.—Where the complaint alleged that, prior to the demand, defendant refused to supply the plaintiff with water for irrigation purposes, or at all, a specific demand and tender were thereby waived.</p> <p>Id.—Defective Averments Supplied by Answer not Prejudicial.— Where defective averments in the complaint were supplied by averments in the answer, and thereby all of the material issues were clearly presented by the pleadings, it cannot' be objected that the defects in the complaint were material to the cause of action or were prejudicial to the defendant.</p> <p>Id.—Want cot Certainty in Allegations not Ground op Reversal.— Mere want of certainty and accuracy in allegations, notwithstanding a demurrer on that ground was tenable, would not be ground for reversing the judgment of the trial court, based upon the trial of the issues joined upon the complaint and answer, lb.—Breach op Obligation not Arising upon Contract—Exemplary Damages.—Where the breach of the obligation does not arise upon contract, but arises from the constitution declaring that the use of all water furnished for sale, rental or distribution shall be a public use and subject to the regulation and control of the state in the manner prescribed by law, the fact that the law provides for. actual damages does not preclude the allowance of exemplary damages under section 3294 of the Civil Code in addition to the actual damages, where the defendant is shown to have been guilty of oppression, fraud or malice.</p> <p>Id.—Intention op Legislature—Presumption.—It is not to be presumed that the legislature, in the enactment of statutes, intends to overturn long-established principles of law, unless such intention is made clearly to appear, either by express declaration or by necessary implication.</p>

<p>Mechanics ’ Liens—Foreclosure—Pleading—Nonpayment — Averment op “Amount Due”—Demurrer—Waiver op Objection.— In an action to foreclose a mechanic’s lien, the gist of the action is the breach of the contract, and a substantial averment of nonpayment is essential to the cause of action; yet, when there is an attempted allegation thereof in the defective form that “the whole amount due” is the sum claimed, and the demurrer is general to the cause of action and special to other averments, but is not addressed to the defective averment of nonpayment, objection to the form thereof is waived.</p> <p>Id.—Condition of Arbitration—Pleading—Waiver—Completion and Acceptance of Building.—Although the general rule is that, where the contract sued upon provided that if any dispute arises between the parties thereto regarding the completion, construction or acceptance of the buildings or the value of extra work, such matters shall be submitted to arbitration, the complaint must show a compliance with such provision, to state a cause of action, yet, where the complaint avers that the contract was completed, whereupon the buildings were accepted by the defendant, and states no dispute, it shows a waiver of the right of the defendant to have any dispute settled by arbitration by accepting the buildings.</p>

<p>PETITION for writ of mandate.</p> <p>The facts are. stated in the opinion of the court.</p>

<p>State Land—Patent in Sixteenth Section-—Character op Land— Quieting Title—Collateral Attack by Mineral Claimants.—A state patent to land in a sixteenth section is conclusive as to the nonmineral character of the land as against a collateral attack by mineral claimants in an action to quiet title based upon the patent, notwithstanding their claim that at the time of the United States survey the land was known to be mineral, and the survey and plat filed in the federal land office showed it to be mineral, and that it has never been listed to the state.</p> <p>Id.—Remedy of Mineral Claimants—Direct and not Collateral Attack.—Strong as are the facts set up by the defendants, and conclusive as they might be, if shown to be true, on a direct attack, yet they cannot be advanced collaterally, in this action, to overthrow the state patent.</p> <p>Id.—Cross-complaint for Other Lands.—Mineral lands not included in the state patent cannot be set up by way of cross-complaint, in an action to quiet title based upon the patent.</p> <p>Id.—Mistake in Judgment Shown by Clerk’s Certificate.—Where a mistake in the judgment appearing in the transcript, which would seem to require a reversal for including lands not covered by the patent, is shown by the certificate of the clerk, the transcript will be amended accordingly, and it appearing thereby that the judgment includes only the lands claimed in the complaint, the judgment will be affirmed. [On Petition for Rehearing.]</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>

<p>Parol Contract to Make Will—Enforcement in Equity.—Equity-will enforce a parol contract to make a will in favor of the plaintiff, where the plaintiff, in reliance upon the contract, has changed her condition and relations so that a refusal of the promisor to carry out the agreement will operate as a fraud upon her.</p> <p>Id.—Enforcement Against Claimants Under Deceased Promisor—■ Trust.—The contract is enforced against those claiming under the deceased promisor, not by ordering a win to be made in favor of the plaintiff, but by regarding the property in the hands of the heirs, devisees, assignees or representatives of the deceased promisor as impressed with a trust in favor of the plaintiff, and compelling such a disposition of the property as will carry out the intent of the agreement.</p> <p>Id.—Sufficiency of Evidence—Rule of Equity—Certainty and Justice of Contract.—Held, upon a review of the evidence, that, notwithstanding the rule that a court of equity should scrutinize evidence of an oral contract to make a will with particular care, and that it should be enforced only upon a satisfactory showing that it is definite, certain and just, the evidence is sufficient to prove the contract alleged, and shows an adequate consideration that the contract is just and reasonable as to the parties against whom it is to be enforced—that is, certain and definite, and involves no invasion of the legal or equitable rights of innocent third parties.</p> <p>Id.—Province of Trial Court—Findings not Disturbed.—It was within the province of the trial court to determine all questions of fact, and the truth or falsity of the testimony, and whether the evidence was sufficient to make a satisfactory showing that the agreement was definite, certain and just; and this court cannot interfere with its findings where it cannot be said, as matter of law, from the evidence in the record, that the contrary is true.</p> <p>Id.—Ultimate and Probative Facts—Support of Findings.—It is sufficient that the findings of ultimate facts upon which the enforcement of the contract depends are sustained by the evidence; and it is immaterial whether probative facts unnecessarily found are not warranted by the evidence.</p>

<p>Prohibition—Criminal Trial—Jurisdiction—Motion to Set Aside Indictment—Error not Reviewable.—Prohibition will not lie to prevent the trial of a charge of arson where the indictment shows jurisdiction of the offense, and the jurisdiction of the person of the defendant is not questioned, and the court had jurisdiction to hear and determine all questions of law and fact on a motion to set aside the indictment. Error in the decision of such motion could not render the decision void, but it is valid and binding until reversed on appeal; and no error therein can be reviewed upon prohibition.</p> <p>Id.-—Defendant not Held to Answer—Privilege to Examine Panel . of Grand Jury—Error not Committed on Motion.—Although a defendant not held to answer for a felony is not entitled as of right to examine the panel of the grand jury; yet where he was accorded such privilege, and had an opportunity before the grand jury was organized to challenge grand jurors of the panel, it was not error for the court, upon motion to set aside the indictment, to decline to allow the defendant to go over the same ground previously explored.</p> <p>Id.—Illegal Evidence—Improper Ground of Motion—Construction of Code.—Section 995 of the Penal Code does not include illegal evidence taken before the grand jury, as a ground of a motion to set aside the indictment; and such ground must be deemed excluded therefrom by intention of the legislature.</p>

<p>Mortgage—Sale Under Foreclosure—Surplus Proceeds Paid Owner of Record Title—Half Interest in Plaintiff—Recovery of Half Proceeds.—It appearing that plaintiff was the owner of a half interest in a lot, the record title to the whole of which stood in the name of the defendant appealing, subject to a mortgage, and that plaintiff recovered judgment for conveyance of such half interest, and that, upon foreclosure of the mortgage, the whole surplus proceeds were paid to said defendant, the plaintiff is entitled to recover one-half of such surplus proceeds from said defendant.</p> <p>Id.—Plaintiff Made Party to Foreclosure—Conflicting Interests not Adjudged,—The fact that the plaintiff was made a party defendant to the foreclosure of the mortgage, under the general allegation that he claimed some interest in the premises which was subordinate to the lien of the mortgage, upon the foreclosure of which no conflict of interests between plaintiff and the defendant appealing was set up or adjudged, the decree of foreclosure is not res adjwdieata against the right of the plaintiff to recover one-half of the proceeds of sale wholly paid to said defendant.</p> <p>Id.—Single Cause of Action—Misjoinder—Surplusage.—Where the cause of action stated is single, for the recovery of one-half of the proceeds of sale, the fact that a futile attempt is made tb state another cause of action, which is mere surplusage, does not show a misjoinder of causes of action.</p> <p>Id.—Misjoinder of Parties—Appellant not Prejudiced.—Conceding that the ruling upon demurrer for misjoinder of parties defendant was erroneous, it was error which could not prejudice the rights of the defendant appealing from a judgment upon the merits.</p> <p>Id.—Form of Judgment—Irregularity—Substance the Test of Sufficiency.—An irregular form of judgment for the recovery of money, in departing from the usual expression “that plaintiff do have and recover, ’ ’ etc., and adopting the form by which the court “ordered, adjudged and decreed that the defendant Mary Williams, within ten days from this date, pay to plaintiff, F. G. Hentig,” 'the sum stated, does not render the judgment interlocutory. It constitutes a “final determination of the rights of the parties,” within the definition of a final judgment in section 577 of the Code of Civil Procedure. In the absence of any particular form of judgment prescribed by the code, the test of the sufficiency of a judgment must be the substance rather than its form.</p> <p>Id.—Surplusage in Judgment—Right to Execution.—Tested by the ordinary rules applicable to final judgment, the judgment in question constitutes a final judgment for money to be enforced by writ of execution against the property of the defendant, and the words “within ten days from this date” perform no office, and on- the face of the judgment are of no force or effect, and cannot prejudice the substantial rights of the appellant.</p> <p>Id.—Appeal—Modification of Judgment not Required.—It is not necessary to order a modification of the judgment upon appeal by-striking therefrom words which are mere surplusage.</p>

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

<p>Quieting Title—Condition of Equitable Belief—Invalid Tax Title —Becital in Deed—Purchase from State—Beimbursement Bequired.—A plaintiff who comes into equity for relief must do equity as a condition of equitable relief. A plaintiff who seeks to quiet title against a purchaser from the state for delinquent taxes, twelve years after the land was sold to the state, on the ground that the deed to the state recites that the sale was upon insufficient publication, without offering to pay the taxes assessed, or to reimburse the defendant for the amount paid in good faith to the state for the property, is not entitled to the relief sought.</p> <p>Id.—Becord upon Appeal—Diminution—Objection to Evidence— Binding not Assailed—Presumption.—Where the record upon appeal, as corrected upon diminution, merely shows an objection by appellants to the admission in evidence of several tax deeds, and does not assail the findings for insufficiency of evidence, or disclose any offer to do equity, it must be presumed that appellants are unwilling to pay the tax assessed, and that therefore the court was justified in finding against them.</p> <p>Id.—Admission at Trial—Appellants not Aggrieved as to Other Tracts.—-Where the appellants admitted at the trial that their title was only involved in one of the tax deeds, they are not aggrieved by the ruling or the judgment as to other tracts covered by that objection.</p>

PETITION for writ of review to the superior court of Santa Clara County, and M. H. Hyland, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for writ of mandate to the City Clerk of the City of San Jose.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Yacating Default After Six Months—Consent—Particular Answer—Refusal to Allow Different Answer—Discretion.— Where defaulting defendants, after six months, moved the court to set aside their default, and for leave to file a proposed answer, which was consented to by parties before the court, upon eliminating therefrom a plea in abatement, which was stricken out by the court, and such defendants agreed to file their proposed answer so changed on the same day, but did not file it at all, and, on the next day, proposed to file, a different answer, which was objected to, the court did not abuse its discretion in refusing to allow the second answer to be filed.</p> <p>Id.—New Trial—Issue of Fact not Tried—Appeal from Order— Affirmance.—A new trial is a re-examination of an issue of fact; and a motion for a new trial is not a proper proceeding to review the action of the court in giving judgment, where no issue of fact was tried. If an order denying such motion is appealed from, the order must be affirmed.</p>

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

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

<p>Corporations—Authority to President to Sell Treasury Stock— Employment of Brokers—General Custom—Recovery of Commissions.—The president of a corporation who is authorized in general terms to sell its treasury stock at par has authority, in view of a general custom of business established throughout California, that corporate officers authorized generally to sell corporate stock, place and list the stock with brokers, to employ brokers to sell the stock at par, and when such brokers found a customer who took the stock at par, they are entitled to recover their reasonable commissions from the corporation.</p> <p>Id.—Knowledge of General Custom Imputable to Directors—Construction of Resolution—Rights of Plaintiffs.—Knowledge of a general custom of business in the sale of corporation stock was imputable to the board of directors when it passed the resolution authorizing the president in general terms to effect the sale, and the resolution must be construed as authorizing the sale in the usual and ordinary manner. If it did not desire the usual custom of business to be followed, it should have specified its desire in the resolution; otherwise the plaintiffs had the right to assume that their employment as brokers by the president was warranted.</p> <p>Id.—Authority of President as Agent—Power of Court—Proof of Custom in “Ordinary Course of Business."—The president had authority as an agent of the corporation, under the authority given him by the resolution to employ the plaintiffs as brokers, under section 2319 of the Civil Code, “to do everything necessary or proper or usual in the ordinary course of business for effecting the purpose of his agency" and it was proper for the court to ascertain by proof what was usual in the ordinary course of business of his agency to sell stock.</p> <p>Id.—Liability of Corporation Suffering Appearances and Action of Officers—Reasonable Belief of Employment.—A corporation which suffers appearances to exist, and its officers and agents so to act as to .give one employed by such officers and agents reason to believe that he is employed by the company, becomes liable to such employee to pay for the services rendered.</p> <p>Id.—Bindings Against Evidence.—Held, that the findings in this case that no services were rendered by plaintiffs to the corporation defendant, and that no indebtedness against the corporation arose by reason of the transaction, were against the evidence; and that the record shows without contradiction that the services were rendered under a valid agreement; and, it being stipulated that the commission claimed by plaintiffs was a reasonable one, that the indebtedness was clearly established for the amount claimed in the complaint.</p>

<p>Physicians—Action fob Services—Care of Defendant’s Daughter—Evidence—Condition of Eoom—Impression of Witness— Harmless Buling.—In an action for medical services rendered to defendant’s daughter during her last illness, in plaintiff’s rooms, in which a witness had testified that the sick-room was in a “mussed-up” condition, but after her death, when he visited it with the coroner’s jury, it was considerably changed and had been cleaned up, a question whether the witness wished “to leave the impression . . . that the rooms had -been in any way transformed for the purpose of inspection,’’ should properly have been ruled out upon objection thereto; yet, where the witness answered in the negative, the question of fact whether he did convey said impression or not-was for the jury, but whether he intended to convey such impression was wholly Immaterial, and the answer was harmless.</p> <p>Id.—Friendly Eelations Between Families.—Evidence of friendly relations between plaintiff’s daughters and the daughters of defendant, and between the two families, is relevant to show why the plaintiff was employed as a physician; but evidence of such fact would not excuse defendant from paying the legal obligation incurred for care of his daughter, and was harmless to the defendant.</p> <p>Id.-—Cross-examination of Defendant—Omission in Belation to Daughter.—Evidence given upon the cross-examination of defendant against his objection to show that he did not accompany his daughter to the city where she was cared for in plaintiff’s charge, that he did not have her address, or write to her, and did not visit the room to which she was taken, tended to show that the daughter was left in plaintiff’s entire charge, and that it was his duty to look out and care for her, and was not prejudicially erroneous, so as to require a reversal of the judgment for plaintiff.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County, appointing an administrator. Frank F. Oster, 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>Prohibition—Action on Note in Justice’s Court — Averment op Mistake — Surplusage.— A writ of prohibition will not lie to prevent the trial of an action on a note for less than $300 in the justice’s court merely because the complaint avers a mistake in the note, when it is insufficient to justify equitable relief to reform the note, and no such relief is sought, but the averment is mere matter of surplusage which might be stricken from the complaint.</p> <p>Id.— Excess of Jurisdiction not Presumed.—The appellate court cannot assume that, in the trial of the case, the justice’s court will exceed its jurisdiction by undertaking to reform a written contract, without sufficient averments or demand for such relief.</p>

MOTION to dismiss an appeal for an order of the Superior Court of the City and County of San Francisco, denying a new trial. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>Mechanics ’ Liens — Improvements in Building — Entire Undertaking — Commencement of Time for Filing Liens.— Where improvements in a large building of seventeen rooms made by the owners consisted of an entire undertaking, which it took nearly two years to complete, the time for filing liens began to date from the actual or constructive completion of the work.</p> <p>Id.—Part Occupation by Owners—Continuance of Improvements.— The occupation of the upper part of the building by the owners before the work was half completed, which was not inconsistent with the further progress and completion of the improvements, could not have the effect to start the time running for the filing of liens.</p> <p>Id.—Cessation of Labor by Claimant—Absence of Notice by Owner—Time fob Filing Lien.—Where the whole work was done-by the owner, without the intervention of a contractor, the claimant of a lien who had ceased work, no notice of such cessation or of the completion of the work being filed by the owners, had ninety days from the actual or constructive completion of the entire-work in which to file his liens.</p> <p>Id.—Constructive Completion.—If the building was not actually completed when all work ceased thereon, it must be deemed completed thirty days thereafter, and a claimant of lien has ninety days from that period in which to file his lien, if no notice of cessation or completion is filed by the owners.</p> <p>Id.—Priority of Liens to Deed of Trust.—Where the work of reconstruction of the building was commenced and all materials were furnished therefor about one year before the execution or record of a deed of trust, the lien for work and materials has priority by relation, and will prevail over such deed under the terms of section 1180 of the Code of Civil Procedure.</p> <p>Id.— Employment of Foreman Carpenter by Day — Amount of-Wages Exceeding $1,000 — Filing not Required.— A foreman carpenter employed by the owners by the day, the amount of whose wages finally exceeded the sum of $1,000, was not employed under a void contract, because it was not in writing and filed for record, where his employment was neither for a definite period nor for a definite amount of work; and it could not be ascertained at the time of his employment whether the aggregate amount of his wages would exceed $1,000, and there was no one under him who could claim a lien against his wages.</p> <p>Id.— Allowance op Interest.— Interest is allowed on a claim of lien from the commencement of an action to foreclose the same, where the claim is capable of being made certain either by computation or reference to market values; but where the claim is on a quantum meruit for the reasonable value of services, it is not susceptible of such computation, and does not bear interest prior to the judgment.</p> <p>Id.—Appellants not Parties—Eight to Interest not Appeoted.— The circumstance that the appellants claiming under a deed of trust were not parties to any of the claims of lien, and that they were contracted without their knowledge, does not affect the right of the lien of the lienholders to interest.</p> <p>Id.—Personal Judgment Against Owner.—Where the work and material were furnished at the instance of the owner, the lien-holders are entitled to a personal judgment against the owners, as well as to a judgment foreclosing their liens.</p> <p>Id.— Attorneys’ Pees not Allowable.—No attorneys’ fees can be allowed in an action to foreclose mechanics’ liens.</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>The facts are stated in the opinion of the court.</p>

<p>Negligence—Master and Servant—Unsafe Rope for Scaffolding— Sufficiency of Complaint—Demurrer.—A complaint by a servant against his master for alleged injuries sustained through the alleged negligence of the master in furnishing an insecure, unsafe and defective rope for a scaffolding which broke, precipitating plaintiff to the ground, which avers ‘ that the said rope was one of the usual and necessary appliances used and necessary in the work plaintiff was employed to do by said defendant,” who “well knew that said rope which broke as aforesaid was unsafe, insecure and defective,” but “failed, neglected and refused to remove the same, and to supply a safe and secure rope in its stead,” and that plaintiff’s injuries “were not sustained through -any fault of said plaintiff,” states a cause of action, and a general demurrer thereto was- properly overruled.</p> <p>Id.—Rule Inapplicable to Case Stated.—The rule that where it clearly appears that the appliance was constructed by the servant himself, or by him and his fellow-servants, from material furnished by the employer, he is not liable for any neglect in the preparation of the appliance, has no application to the case stated in the complaint, in which it is admitted upon demurrer that the rope which broke was itself an appliance.</p> <p>•Id.—Rope as an Appliance—Duty of Master.—A rope may be an appliance under proper circumstances, and regarding it as such, which must be done upon the demurrer, it was the duty of the master to see that it was a reasonably safe and suitable appliance, and to keep it in safe and proper condition, and he could not delegate this duty so as to shift the responsibility to any agent or servant.</p> <p>Id.—Defective Materials Furnished by Master—Neglect of Duty— Verdict Sustained.—Where the evidence shows that the case was one of defective materials furnished by the master for the construction of the scaffolding, and that his duty was neglected in that respect, the verdict for the plaintiff will not be disturbed upon appeal.</p>

PETITION for discharge upon writ of habeas corpus. The facts are stated in the opinion of the court. James C. Sims, J. A. Spinetti, and Roland Becsey, for Appellant.

<p>Water Bights—Support op Findings and Judgment—Prescriptive Bights—Priority.—In an action to determine water rights, where the evidence sufficiently supports findings by the court that plaintiffs and their predecessors had used the water in controversy for twenty years to irrigate their lands, that defendants had acquired no prescriptive rights therein, that plaintiffs’ user was prior to any rights of defendants therein, and that defendants had wrongfully diverted the water to plaintiffs’ damage in the sum found, the findings so sustained are sufficient to negative any rights of defendants in the waters, and to support the judgment for the plaintiffs.</p> <p>Id.—Review of Evidence to Sustain Findings.—In reviewing the sufficiency of the evidence to sustain the findings for the plaintiffs, the preponderance of the evidence or the substantial character of the showing made by the defendants cannot be considered, but the single inquiry is, Does the record contain any evidence tending to support the findings?</p> <p>Id.—Omission to Find upon Issue of Prior Appropriation Immaterial.—The findings sustained by the evidence being sufficient to show a presumptive user of the waters by the plaintiffs and their predecessors for the statutory period, and to show priority of rights of the plaintiffs to any rights of the defendants, and to sustain the judgment for plaintiffs, the omission to find specifically upon a defense of prior appropriation by the defendants is immaterial.</p>

<p>Ejectment—Intervention by Mortgagee—Insufficient Cause of Action—Judgment Unsupported.—In an action of ejectment against a tenant in possession, in which a mortgagee intervened, and for one distinct cause of action merely alleged the ownership of two mortgages acquired by purchase and assignment, without alleging possession or right of possession under the mortgages, his complaint in intervention as mortgagee states no cause of action, and a judgment in Ms favor based thereon cannot be supported.</p> <p>Id.—Pleading — Demurrer — Motion to Strike Out. — The proper mode in wMch to meet an insufficient cause of action in the com-, plaint in intervention is by demurrer, and not by motion to strike out the insufficient cause of action.</p> <p>2d.—Failure to Demur—Objection not Waived—Review upon Appeal.—When the complaint of the intervener, upon wMch the judgment in his favor is based, fails to state a cause of action for want of essential facts, objection thereto is not waived by failure to demur thereto, nor cured by verdict or judgment, and the point may be urged upon appeal, notwithstanding the failure to demur.</p> <p>Id.—Proof of Equities not Pleaded—Absence of Allegation not Cured.—Notwithstanding the evidence clearly discloses equities in favor of the intervener mortgagee, as having been put into possession by a second mortgagee, yet the action being one at law in ejectment against a tMrd person, and the position of the mortgagee being that of one who is setting up an outlawed mortgage, in regard to wMch no equity is pleaded, no evidence thereof, even if admitted without objection, can cure the total absence of allegations essential to the statement of a cause of action.</p> <p>Id.—First Cause of Action—Adverse Possession—Tenant of Mortgagee—Separate Statement—Absence of Reference.—A first cause of action in the complaint in intervention, setting up title by adverse possession, and that the tenant sued is the tenant of the mortgagee, wMch is separately stated, cannot aid the allegations in favor of the mortgagee upon a second cause of action, separately stated, in wMch no possession of the mortgagee is alleged, and in which no part of the first cause of action is referred to or made part of the second cause of action by adoption.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Chas. Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>F. W. Allender, Clara A. Allender, and Warren L. Williams, for Appellant.</p>

<p>APPLICATION for writ of prohibition to the judge of the Superior Court of San Luis Obispo County. E. P. XJhangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Albert Nelson, District Attorney, for the People, Plaintiff and Petitioner.</p>

<p>Criminal Law—Burglary—Instructions—Recent Possession op Stolen Property.—Instructions as to the recent possession of stolen property, under a charge of burglary, requested by the defendant, which are substantially embodied in the charge, need not be repeated. The court properly instructed the jury “that the mere possession of stolen property, unexplained by a defendant, however soon after the taking, is not of itself, and standing alone, sufficient to justify a conviction,” but that “it is a circumstance which, if not satisfactorily explained, tends to show his guilt, and, when taken in connection with other incriminating evidence in the case, if such there be, may be sufficient to satisfy the jury beyond a reasonable doubt of the guilt of the defendant of the crime of burglary as alleged in the information.”</p> <p>Id.—Burden upon Accused.—In such case, the accused is bound to explain the possession, in order to remove the effect of the possession, as a circumstance, to be considered in connection with other suspicious facts tending to show guilt, which may be disclosed by the evidence.</p>

<p>Criminal Law—Forgery—Proof of Loss to Fire Insurance Company—Construction of Code.—Although the proof of loss to a fire insurance company is not one of the instruments specifically enumerated in section 470 of the Penal Code, it is an instrument recognized in the Penal Code, and by text-writers and decisions of courts, the functions of which in insurance matters are well known; and the counterfeiting of the handwriting of insured persons losing by fire, in the proof of loss thereof, is forgery under the general terms of section 470 of the Penal Code.</p> <p>Id.—Possibility of Fraud and Injury.—Fraud and deceit are essential elements of the crime of forgery; and unless the counterfeited handwriting be of such a nature that some one might possibly be defrauded by it, the mere falsity of the writing is not an offense; but if it might possibly deceive another, and was prepared with intent to deceive and defraud another, it is immaterial whether any person was actually injured or not.</p> <p>Id.—Averment of Extraneous Facts—Applicability of Bulb.— When a forged writing is defective or unintelligible, and it cannot be seen in what way it could operate to defraud, then its capacity in that respect must be made to appear by averment of extraneous facts. B,ut when, as here, the instrument is perfect and intelligible, and its nature, extent and capacity can be seen and judged by the court itself, such rule does not apply, and no such averments are necessary.</p> <p>Id.—Unnecessary Allegations in Indictment.—The indictment for forgery of the proof of loss need not allege that a policy of insurance was issued to the persons whose names were forged, nor that the property was destroyed by fire. When the instrument on its face is valid, the indictment need not expressly allege every fact the existence of which is assumed by the forged document.</p>

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

<p>Mining Claims—Annual Work—Relocation—Quieting Title—Support op Findings—Conflicting Evidence.—In an action to quiet title to mining claims relocated by the defendant for alleged failure of plaintiffs to do the requisite annual work for the preceding year, findings by the court upon conflicting evidence for the plaintiffs that the full amount of work was done by them for that year cannot be disturbed upon appeal.</p> <p>Id.—Credibility of Witnesses—Province of Trial Judge.—It is the peculiar province of the trial judge to determine the credibility of the witnesses, which cannot be invaded upon appeal, unless the testimony for the prevailing party is so improbable that the appellate court must reject it as not entitled to belief.</p> <p>Id.—Motion for New Trial—Newly Discovered Evidence—Discretion—Presumption.—A motion for a new trial on the ground oí newly discovered evidence is addressed to the sound discretion oí the trial court, which must be presumed to have been properly exercised in denying the same, unless it appears that the evidence is such as must, if proved upon a new trial, change the result, in which case, if proper diligence is shown, the order must be reversed; but where the evidence is substantially cumulative, and it cannot be held that the result would probably be different if the new evidenee were received, the discretion of the court cannot be interfered with.</p> <p>Id.—Accident and Surprise—Want op Diligence—Improper Beliance upon Visit by Judge.—-The ground of “accident and surprise” cannot justify the motion for a new trial, where it appears that they were occasioned by the testimony of plaintiff's witnesses that the annual work was done, which was given upon the only issue joined in the case, upon the trial of which common prudence would require defendant to be prepared to show the contrary, and he was bound to exercise reasonable diligence on his part in producing all evidence obtainable thereupon; nor can such want of diligence be justified by improper reliance upon a visit of the judge to inspect the work done before rendering his decision, without reasonable ground for anticipating such visit.</p>

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

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

<p>APPEAL from an order of the Superior Court of Tulare County settling the commissions of an administrator. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Order Granting New Trial—“Errors oe Law"—Beview upon Appeal.—Upon appeal from an order granting a new trial, “solely upon errors of law,” the appellate court is limited in its .review to errors appearing in the record, exclusive of the sufficiency of conflicting evidence to justify the decision.</p> <p>Id.—Failure to Find upon Material Issue—Decision Against Law. The failure of the court to find upon a material issue renders the decision against law, and such failure will support the order granting a new trial.</p> <p>Id.—Unsupported Finding—Error op Law.—A finding essential to the judgment rendered, which there is no evidence to support, constitutes an error of law, which will support the order appealed from.</p> <p>Id.—Action to Rescind Contract to Sell Land—Cross-complaint— Failure to Find upon Issue op Fraud.—In an action to rescind a contract to sell real estate, for fraud in its procurement, and to recover possession from the purchaser, who seeks to enforce the contract by cross-complaint, in answer to which the fraud is set forth, showing that a person named, acting on behalf of the defendant purchaser, falsely represented that he was employed by plaintiff’s agents and urged her to pay more for the property than she had offered, knowing his representation to be false, to plaintiff’s injury, the plaintiff was entitled to a finding upon that issue, and where the judgment was for the defendant, and the court granted a new trial to the plaintiff for errors of law, the failure to find upon the issue of fraud will support the order granting the new trial.</p> <p>lb.—Finding Against Evidence.—A finding that the defendant was guilty of no deception or fraud, and that plaintiff has suffered no damages, in so far as it implies that the intermediary was acting for plaintiff’s agents, and that plaintiff was not damaged by his fraud, is wholly against the evidence, and is an error of law supporting a new trial.</p> <p>Id.—Inequitable Enforcement of Contract.—A court cannot properly lend its aid to enforce a contract which is in any respect unfair or savors of oppression.</p> <p>Id.—Damage to Plaintiff—Increased Liability for Commissions.— The increased liability of plaintiff to his agents for commissions constituted damage to plaintiff by reason of the deception and fraud increasing the price offered by plaintiff.</p> <p>Id.—Error of Law as to Construction of Contract—Right of Possession by Purchaser.—It was an error of law to construe the contract as authorizing the defendant as proposed purchaser to take possession, and to find that he was rightfully in possession, and such error will also support the order granting a new trial to the plaintiff.</p>

<p>Habeas Corpus—Imprisonment Under Judgment for Misdemeanor— Long Delay in Execution.—The writ of habeas corpus will not lie to release a defendant from imprisonment under a judgment of conviction for misdemeanor, by reason of long delay in the execution of the judgment. If it be conceded that such delay, even by consent of the defendant, is invalid, it could not, however long continued, avoid the original judgment, which is valid and subsisting, and the execution thereof by imprisonment dates only from its actual commencement, and is legal and valid until the full sentence is served.</p> <p>Id.—Rights of Defendant.—The defendant had the right to eompá the beginning of his imprisonment by mandamus, if not in custody ^ and if in custody, may have a writ of habeas corpus, in order t«' direct .the beginning thereof, under the judgment, in pursuance or. section 670 of the, Penal Code.</p> <p>Id.—Time of Execution no Part of Judgment.—The time at which a judgment or sentence shall be carried into execution forms no part of the judgment of the court. The judgment is the penalty of the law as declared by the court, while the direction as to the time of carrying it into effect is in the nature of an award of execution. The expiration of time without imprisonment is in no sense an execution of the sentence.</p> <p>Id.—Power of Justice to Arrest and Commit.—The justice of the peace who imposed the sentence for misdemeanor may, if the convicted defendant is at liberty, and has not served his sentence, in the absence of a statute to the contrary, arrest him, and order him into custody upon the unexecuted judgment, and commit him in execution thereof.</p>

<p>Criminal Law—Burning Insured Property—Arson.—Where the specific acts pleaded in an information show the offense of willfully and maliciously burning the insured property of the defendant, with the intent to defraud, prejudice and damage an insurance company, under section 548 of the Penal Code, the further designation of the offense as "arson” is immaterial.</p> <p>to.—Legality of Commitment—Waiver of Objection.—Where no motion was made to set aside the information upon the ground that the defendant had not been legally committed by a magistrate, objection on that ground is waived under section 996 of the Penal , Code, and cannot be considered upon appeal.</p> <p>Id.—Informality of Verdict—Construction—Duty of Court.—Although the verdict is to some extent informal, it is the duty of the trial court to construe it so as to give it the effect intended by the jury, if the intended effect can be ascertained from its language considered in connection with the pleadings and the evidence.</p> <p>Id.—Burning Insured Property—Invalidity of Policy no Defense. The crime of maliciously burning insured property with intent to collect on an insurance policy is complete, although the policy may be invalid, if the defendant believed it to be valid, and committed the act with the intent to defraud.</p> <p>Id.—Proof of Existence of Insurance Company—De Facto Corporation.—It need only be shown that the insurance company intended to be defrauded was a de facto corporation, and acting as an insurance company. The statement in the insurance policy held by the defendant that the insurance company was incorporated on a certain date, and the evidence of a witness that he was in the employment of the corporation, constitute sufficient evidence that it is a de facto corporation.</p> <p>Id.—Proof of Corpus Delicti—Confessions.—Held, that there was sufficient proof of the corpus delicti to warrant evidence of a confession made by one of the defendants.</p> <p>Id.—Confession Proved by Accomplice—Corroborative Evidence— Support of Verdict.—Held, that evidence given by one of the defendants, as accomplice, of a confession made by the other defendant, is sufficiently corroborated by independent evidence tending to show the guilt of the eodefendant making the confession, and that the whole evidence is sufficient to support the verdict of guilty against him.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. M. Barstow, Collier & Carnahan, and John D. Pope, for Appellant.</p>

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

<p>Mechanics' Liens—Foreclosure—Insufficient Complaint.—A complaint to foreclose a mechanic’s lien must show a substantial compliance with the statute as to the contents of the notice of lien; and a complaint failing to aver what the claim of lien filed for record contained, other than a description of the property sought to be charged, states no cause of action to enforce a lien.</p> <p>Id.—Amount Sued fob Below Jurisdiction—General Demuebeb.— Where the amount sued for, independently of the lien, is too small to be within the jurisdiction of the superior court, no cause of action is stated, and a general demurrer to the complaint was properly-sustained.</p>

<p>The facts are stated in the opinion of the court.</p> <p>N. C. Coldwell, M. K. Harris, and S. L. Strother, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of the City of San Francisco, and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Mullany, Grant & Cushing, Cushing, Grant & Cushing, and Garret W. McEnerney, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney General, and E. B. Power, Assistant Attorney General, for Appellant.</p>

The facts are stated in the opinion of the court. Louis Gonsalves, Weldon & Held, Thomas, Pemberton & Thomas, and C. E. McLaughlin, for Petitioner. Held: Thomas, Pemberton & Thomas, and C. E. McLaughlin, for Petitioner.

<p>APPEAL from a judgment of the Superior Court of Siskiyou County, and from an order denying a new trial. J. S-Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Gillis & Tapscott, James F. Farraher, and James D. Fairchild, for Appellants.</p>

<p>APPLICATION for a writ of prohibition to A. I. Mc-Sorley, Judge of the Superior Court of Calaveras County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>State Lands—Contest oe Eight to Purchase—Jurisdiction oe Supreme Court—Appeal—Motion to Dismiss—Transfer.—The supreme court, by virtue of its appellate jurisdiction “in all special proceedings,” has jurisdiction of an appeal from a judgment determining a contest of the right to purchase state school lands referred to the superior court by the surveyor general; and where such appeal is taken to this court, it will not determine a motion to dismiss the appeal, but will transfer the cause to the supreme court, under section 4 of article VI of the constitution.</p>

<p>Taxation—Municipal Corporation op Sixth Class—Time por A% SESSMent.—A municipal corporation of the sixth class, created under the municipal corporation act of 1883, had, under section 871 thereof, as it stood prior to 1905, the power to fix the time for the - assessment, levy and collection of city taxes, and could provide that the assessment thereof should be fixed according to the status of property at 12 o’clock M. of May 1st, instead of 12 o’clock M. of the first Monday in March.</p> <p>Id.—Date op Lien not Inconsistent with Power Given.—The fact that section 871 of the act of 1883 provides that the lien of city taxes shall relate to the first Monday in March is not inconsistent with the power given to fix the time for the assessment, levy and collection of taxes.</p> <p>Id.—Bulb as to Lien op Tax.—The general rule is that taxes are not a-lien, unless expressly made so by statute, and the time to which the lien will attach, if at all, must be determined by the statute.</p> <p>Id.—Justification in Fixing Time for Assessment—Presumption.— • In the absence of anything appearing to the contrary, it must be presumed that circumstances existed which justified the municipal board in fixing the time for assessment, in pursuance of the power given, as of May 1st, and that they properly performed their official duty in this regard.</p> <p>Id.—Construction of Constitution.—There is nothing in the eonsti- • tution inconsistent with the municipal corporation act of 1883. Section 8 of article XIII thereof has no application to the assessment of property in municipal corporations for local purposes. But section 12 of article XI makes it the duty of the legislature, by general laws, to vest in the corporate authorities of municipalities the power to assess and collect taxes for municipal purposes.</p>

PETITION for writ of habeas corpus to the marshal of the City of South Pasadena. The facts are stated in the opinion of the court.

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

<p>APPEAL from a judgment of the Superior Court of 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>APPEAL from a judgment of the Superior Court of the County of Fresno, 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>

PETITION for writ of habeas corpus to secure admission to bail. The facts are stated in the opinion of the court. Henry Ach, Frank J. Murphy, and M. C. Chapman, for Petitioner.

<p>Negotiable Paper—Action on Accepted Draft—Payment on Delivery of Prunes Sold—Receipts—Support of Finding and Judgment.—The acceptance by the defendant as drawee of a draft drawn by the purchaser of prunes from the plaintiff, who became payee, and which was made payable in full on receipt by the drawee of prunes evidenced by two receipts specified, is, in effect, an agreement by the drawee to pay the sum stated upon delivery to him of the prunes represented by the two receipts; and in an action upon the accepted draft, which was paid in part by the drawee, where there is evidence, notwithstanding conflict therein, to support a finding that the prunes represented by such receipts were delivered to and received by the defendant, the finding cannot be disturbed, and the judgment for the balance due on the accepted draft in favor of the plaintiff must be affirmed.</p> <p>Id.—Presumptions Favoring Action of Trial Court.—All presumptions are in favor of the correctness of the findings and conclusions of the trial court which heard the evidence and passed upon the order denying a new trial.</p> <p>Id.—Omission in Finding—Answer as to Nondelivery of Whole Crop—Immaterial Issue.—The only issue material to the liability of the drawee upon the accepted draft being the delivery of the two receipts for prunes specified, an issue tendered in the answer as to nondelivery of the whole of plaintiff’s crop of prunes cannot affect such liability, and a failure to find thereon is immaterial.</p>

<p>Assumpsit—Value of Services op Beal Estate Brokers—Premature Withdrawal op Contract—Promise—Error in Excluding Evidence—Direction op Verdict.—In an action of indebitatus assumpsit by the assignee of real estate brokers, the court erred in excluding all evidence to show that, before a written contract with them was prematurely withdrawn by the owner, plaintiff's assignors had performed services thereunder, and the reasonable value thereof, and that before such withdrawal the owner promised to pay them the agreed commission; and it was error to withdraw such matters from the jury, and to direct a verdict for the defendant.</p> <p>Id.—Form op Action—Prevention op Performance—Contract Admissible.—The performance of the contract having been prevented by the defendant, the action was properly brought in the form of indebitatus assumpsit, and not directly upon the contract; though, as it is the basis upon which the cause of action arose, it is admissible in evidence in said action.</p> <p>Id.—Bight op Bbcovery—Services and Expenditures in Good Faith —Promise in Consideration op Withdrawal.—If the brokers performed services in good faith, or expended money to obtain a purchaser while the contract was in force, and the defendant, in view thereof, went to them before the time limited had expired, and promised to pay for those services, and for being permitted to withdraw the contract, and upon such promise the contract was withdrawn, there is no reason in law or in morals which would preclude a recovery.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, denying an application for a writ of mandate. N. H. Conklin, Judge.</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 refusing to recall and quash execution upon a judgment for costs, and refusing to retax costs, and refusing to allow a setoff upon such judgment. J. W. Taggart, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Collision of Automobile with Bicycle—Street Obstructed by Debris—Crowded Thoroughfare—Contributory Negligence.—In an action against the owner of an automobile for damages caused by negligent collision thereof with the rider of a bicycle, on Market street, in San Francisco, where the verdict was for the plaintiff, held, that, under the evidence disclosed in the record, the plaintiff was not guilty of any contributory negligence which would preclude his recovery, merely because the street was narrowed by the obstructions of debris, and the collision occurred in a crowded thoroughfare, where it appears that plaintiff led his bicycle until the street appeared clear and safe, and after mounting it, the automobile came out of the track from behind a ear and ran into him.</p> <p>Id.—Evidence—Speed of Automobile.—Where a witness testified that the automobile was going down the street at a lively gait, and in a reckless manner, just before the accident, and that he saw several young men make lively escapes, and that he saw the machine strike the plaintiff, not a hundred feet distant from such escapes, the court did not err in refusing to strike out his evidence, on the ground that it did not tend to prove the rate of speed at the time-of the accident.</p>

<p>Action in Equity to Vacate and Avoid Foreclosure Decree by Default—Jurisdiction of Supreme Court—Transfer of Appeal.— The supreme court has exclusive jurisdiction of an- appeal from a judgment in an action in equity to set aside and avoid a decree of foreclosure taken by default; and where such an appeal is improperly taken to this court, it is not thereby lost, but must be transferred to the supreme court, under section 4 of article VI of the constitution.</p>

<p>Statute of Frauds—Employment of Real Estate Broker by Letter —Recovery of Commissions.—A letter written and signed by the defendant, addressed to plaintiff’s assignor, who was a real estate broker, in which it is said: “With regard to the price on the Yorba Ranch $50 per acre is all right, and we also agree to pay regular commission fees in case of sale,’’ sufficiently complies with the statute of frauds, and shows an employment of plaintiff’s assignor by defendant to effect a sale; and where a purchaser was found by the real estate broker to whom a sale was effected, and title obtained from defendant and his sister, who were the owners of the land, plaintiff is entitled to recover from defendant regular broker’s commissions therefor.</p> <p>Id.—Sufficiency of Complaint—Employment by Defendant—Performance—Ownership in Defendant not Alleged.—The complaint to recover the broker’s commissions from the defendant, which sufficiently alleges defendant’s employment of the broker to sell the land described, and the broker’s performance thereof by finding a purchaser to whom a sale of the land was effected through the broker’s efforts, is not demurrable on the ground that it does not allege ownership of the land purchased in the defendant.</p> <p>Id.—Construction of Code—Ownership in Employer Immaterial.— Under the statute of frauds embodied in section 1624 of the Civil Code, there is no reason why A should not, by a memorandum of contract, charge himself with the duty of paying C a commission for selling the lands of B. It is purely a matter of contract; and it is immaterial, so far as concerns the right of the real estate agent to recover, whether the party to be charged under the contract is or is not the owner of the land to be sold.</p> <p>Id.—Sufficiency of Memorandum—Description of Land.—The statute does not require a formal written contract, but merely some note or memorandum thereon signed by the party to be charged; and such memorandum is not required to contain a full description of the land to be sold. The description thereof by name as the “Yorba Ranch” sufficiently furnishes the means of identifying the property.</p> <p>Id.—Identification of Land by Pleadings and Evidence.—The identification of the “Yorba Ranch” is fully established by the uncontroverted description thereof in the complaint, and by evidence leaving no question as to the identity of the property sold.</p>

PETITION for writ' of mandate to the President of the Board of Trustees of the City of San Buenaventura. The facts are stated in the opinion of the court.

In this appeal, No. 445, and in appeal No. 472, an opinion was rendered on January 10, 1908, covering both appeals. Subsequently a rehearing was granted by the district court of appeals in both appeals. The opinion on the rehearing of this appeal, which is reported below, adopts the opinion rendered on January 10, 1908, and .quotes it in extenso. The further facts are stated in the opinion of the court.

N. H. Conklin, Judge. This is an appeal by the City of San Diego from the judgment, and was numbered 472. In this appeal, and in appeal No. 445, taken in the same case, an opinion was rendered on January 10, 1908, covering both appeals. Subsequently a rehearing was granted by the district court of appeals in both appeals. The opinion on the rehearing of this appeal, which is reported below adopts the opinion rendered on January 10, 1908.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from orders refusing to vacate the judgment and to amend the conclusions of law; and refusing to permit the withdrawal of a deposit made in court. Waldo M. .York, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>R. L. Horton, J. Wiseman McDonald and Thomas P. Higgins, for Appellant.</p> <p>Charles L. Batcheller, Percy B. Lhoyd, Scarborough & Bowen, W. D. McConnell, Munson & Barclay, Jones & Weller, and Hutton & Williams, for Respondents.</p>

<p>PETITION for writ of mandate to the State Controller. ."Writ allowed.</p> <p>The facts are stated in the opinion of the court.</p>

Geo. H. Buck, Judge. The action was originally begun in the superior court of the city and county of San Francisco; but the venue was changed to San Mateo county, before the demurrer to the complaint was passed upon, or the answer was filed. Further facts are stated in the opinion of the court. James A. Devoto, and Devoto & Richardson, for Appellant.

<p>APPEAL from judgments of the Superior Court of Inyo County against appellants respectively, and from an order denying their motion for a new trial. Walter A. Lamar, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>White Smith, Frank V. Drake, and P. W. Forbes, for Appellants.</p>

<p>Action fob Lumber Sold and Account Stated—Issues—Bid fob Schoolhouses—Defendant not Responsible—Support of Findings—Conflicting Evidence.—In an action for lumber sold and upon an account stated, where issues were joined upon all the allegations of the complaint, and the findings were in favor of the defendant upon all of the issues, and the evidence was conflicting as to whether the lumber was sold to a contractor under a bid for the erection of schoolhouses, and as to whether defendant agreed to become responsible and pay therefor, and the court accepted as true the statements of defendant’s witnesses that no such agreement was made or responsibility assumed by the corporation defendant, the findings by the court are conclusive, and will not be disturbed upon appeal.</p> <p>Id.—Basis of Rule as to Account Stated—Existing Liability Essential—Finding Against Liability.—The rule that, if an account is presented to a debtor, and he does not object to it within a reasonable time, his acquiescence will be taken as an admission that the account is truly stated, is based on the existing liability of a debtor to his creditor and on previous monetary transactions between them. An account stated cannot be made the instrument to create a liability where none existed; and where the court found, upon sufficient evidence, that there was no monetary transaction between plaintiff and defendant, and no existing liability of defendant to plaintiff, defendant could not be charged with an account stated, even if an itemized account were presented against it.</p> <p>Id.—Itemized Accounts Against Previous Partnership—Corporation not Chargeable.—Where the record shows that no account of any kind was rendered to the corporation defendant, and that itemized accounts were made out against a previous partnership formerly engaged in the same business, from which the corporation received part of its property, the corporation having been organized before the lumber was sold, the corporation cannot be charged with an account stated upon such itemized accounts, there being nothing to indicate that any claim or estoppel was being asserted against it.</p> <p>Id.—Omission to Find upon Delivery of Itemized Accounts to Corporation—Absence of Evidence.—A finding is not necessary upon an issue as to the delivery of the itemized account to the corporation defendant, and its retention of the same, where there is no evidence warranting such finding. The fact that itemized accounts against a copartnership were delivered at the office of the corporation, to its general manager, who was one of the previous partners, would not render it an account against the corporation or delivered thereto.</p>

PETITION for writ of habeas corpus to the Sheriff of San Diego County. The facts are stated in the opinion of the court.

<p>Banks—Insolvency—Closing up Business—Powers op Bank Commissioners and Directors.—Under the act creating the bank commissioners, as amended in 1895, it is not contemplated that the bank commissioners shall conduct in person the closing up of the business of an insolvent bank, or shall employ any persons, or fix the salaries of employees; but they are only empowered, in order to cause an expeditious and -economical termination of its affairs by its directors, to fix the maximum limit of the number of persons to be employed by them, and the maximum limit of their salaries, and the board of directors may employ a less number, and fix their salaries at any figure within the limit fixed therefor.</p> <p>Id.—Action to Recover Money Collected by Secretary and Manager—Compensation not Agreed—Quantum Meruit.—In an action by the directors of an insolvent bank to recover from its secretary and manager a sum collected by him, in excess of the value of his services, where it appears that no compensation was agreed upon, he is not entitled to retain the maximum sum fixed by the commissioners, but can only retain a sum to be determined upon a quantum meruit as the reasonable value of Ms services; and the directors are entitled to recover the residue of the sum collected by Mm.</p> <p>Id.—Conclusiveness of Finding as to Seasonable Value—Appeal prom Order Denying New Trial—Affirmance.—The finding of the court as to the reasonable value of the services of the secretary and manager must be deemed conclusive upon appeal from an order denying him a new trial, and where no error appears, the order must be affirmed.</p>

<p>Deed—Exception—Land Previously Granted for School Purposes —Reservation in Grantors Excepted.—A deed excepting land previously granted not only excepts land' previously granted for school purposes, but also excepts a reservation in such grant to the grantors in case the land granted should cease to he used for school purposes.</p> <p>Id.—Construction of Codes.—Under section 1069 of the Civil Code and section 1864 of the Code of Civil Procedure, it is intended that an exception in a grant as well as a reservation therein shall, in case of uncertainty, he interpreted in favor of the grantor.</p> <p>to.—“Exception” and “Reservation” Synonymous.—The words “exception” and “reservation” are used synonymously in grants, and have the same effect.</p>

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

<p>Eminent Domain—Railroad Right of Wat—Abandonment of Route Before Defauw? in Payment—Dismissal of Action.—In an action by a railroad company to condemn land for a right of way, in which, after verdict, the judgment of the court was that the-amount of the verdict be paid within thirty days, the railroad company may, before default in such payment, give notice of its-abandonment of the route set forth in its complaint, so as not to. pass over the defendant’s land; and the court may thereupon order a dismissal of the action at plaintiff’s costs.</p> <p>Id.—Costs not Inclusive of Attorneys’ Pees.—There is no provision for including attorneys’ fees paid by the defendant as part of' the costs to be allowed upon dismissal of the action to condemn, the lands of the defendant.</p>

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

<p>Action to Cancel Street Assessment Liens—Parties—Joinder of Owners of Separate Lots.—In an action to cancel street assessment liens, for invalidity of the assessment, and to have the entire record of the warrant, assessment and diagram in the office of the superintendent of streets canceled by the judgment of the court, the owners in severalty of separate lots may be joined as plaintiffs, as "having an interest in the subject of the action and in obtaining the relief demanded,” in accordance with section 378 of the Code of Civil Procedure. If not all necessary parties, they are at least proper parties.</p> <p>Id.—Overruling Demurrer for Misjoinder.—Assuming that the action of the court in overruling a demurrer for misjoinder of parties plaintiff was technically erroneous, it is clear that defendants were not prejudiced thereby, and it could not justify a reversal.</p> <p>Id.—Conjunctive Denial of Title Insufficient—Admission of Title ■—Proof not Required.—Where each of the.plaintiffs claimed more than one lot, a conjunctive denial in the form that each plaintiff named is not, and never has been, the owner of one lot described and of another lot described is insufficient to raise any issue as to the title of either lot, and is an admission of plaintiff’s title to both lots, and the plaintiff is not required to prove it.</p>

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

<p>Criminal Law—Order Beeusing to Set Aside Information—Bill of Exceptions—Beview upon Appeal.—No appeal can be taken from an order refusing to set aside an information for want of a legal commitment before the filing of the same; but such order is reviewable upon an appeal from the judgment, provided the proceedings are embodied in a settled and authenticated bill of exceptions as required in section 1174 of the Penal Code.</p> <p>■ Id.—Absence op Legal Becokd—Evidence and Exceptions in Minutes—Order not Beviewable.—In the absence of a bill of exceptions, evidence and exceptions to rulings embodied in the minutes and inserted in the transcript furnish no authenticated or legal record, from which it can be determined whether the court erred in making the order complained of.</p>

<p>Criminal Law—Motion to Dismiss—Trial After Sixty Days—Consent of Defendant.—Where a defendant accused of felony moved to dismiss the action for failure to bring the case to trial within sixty days, the fact that, within the sixty days, defendant consented to setting the cause for trial at a date two months later, obviates the necessity on the part of the people of showing any other good cause why the motion should be denied.</p> <p>Id.—Unlawful Taking of Young Girl for Prostitution—Support of Verdict—Presumption from Conduct.—Held, upon reyiew of the evidence upon trial of a charge of unlawful taking away of a young unmarried girl for purposes of prostitution, that the jury were warranted, even in the absence of direct evidence, in finding the defendant guilty of the offense charged, from the conduct of the defendant in placing her in a bad house and in immoral surroundings, on the principle that one is conclusively presumed to intend the probable consequences of his acts.</p> <p>Id.—Intent Charged a Question for Jury.—The intent charged was a matter of fact which was for the jury to determine.</p> <p>.Id.—Evidence Bearing upon Intent—Prior Marriage of Defendant with Prostitute.—The court did not err in admitting evidence of defendant’s statements to show that before his acquaintance with this young girl he h'ad been married to and had been living with a prostitute. It was competent as tending to show to the jury the intent reasonably to be inferred from defendant’s relation to this young girl and in placing her under the'■surroundings shown.</p> <p>Id.—Costume Provided for Girl in Immoral Dance-hall.—The admission in evidence of an improper costume provided by the proprietors of an immoral dance-hall in a saloon in which the young girl was placed was proper, so that the jury might have before them the whole of the surroundings into which she was placed, and intelligently determine the intent and object of those charged with recruiting victims for such a den of vice.</p>

<p>APPEAL from an order of the Superior Court of Kern County, refusing to set aside an information, and from a judgment, and order denying a new trial. Paul W. Bennett, 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>Chas. S. Burnell, and Haas, Garrett & Dunnigan, for Appellants.</p> <p>Leslie R. Hewitt, City Attorney, and E. R Young, Deputy, and Howard Robertson, Deputy, for Respondents.</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. W. P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Appointment of Special Administrator—Preferment of Stranger to Child—Error—Certiorari. The appointment of a stranger as a special administrator of the estate of a deceased person, in preference to the daughter of the decedent, who, as heir at law, devisee and legatee, petitioned for the appointment, constitutes an error in the exercise of jurisdiction, which, however gross, cannot he annulled upon writ of certiorari.</p> <p>Id.—Office of Certiorari—Review of Jurisdiction—Not Writ of Error—Remedy by Appeal not Essential.—The writ of certiorari only lies to review and annul an act without or in excess of jurisdiction. It cannot be issued to correct errors either of fact or law committed by the lower court, within the limits of its jurisdiction. It cannot be used in this state as a writ of error, whether there is a remedy by appeal or not.</p> <p>Id.—Nature of Jurisdiction—Power to Decide Correctly or Incorrectly.—Jurisdiction is the power to hear and determine a cause or controversy, and necessarily includes the power to decide it incorrectly as well as correctly. It does not relate to the rights of the parties as between each other, but to the power of the court.</p>

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

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

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

<p>Vendor and Purchaser—Foreclosure of Contract for Sale and Purchase—Conclusiveness of Findings upon Appeal.—In an action by vendors to foreclose a contract for the purchase and sale of land for nonpayment of purchase money, where the findings were for the plaintiffs upon all of the issues raised by the defendants, and no evidence is brought up upon appeal, the findings as made are conclusive of the rights of the parties.</p> <p>Id.—Construction of Contract—Interest and Taxes—Consideration of Purchase.—A provision in the contract of sale that the purchaser shall, besides the interest, pay taxes, is to be construed as meaning only taxes on the land, and not double taxation on the land and purchase price; and such provision, like that for payment of the principal, constitutes part of the consideration for the purchase of the land.</p> <p>Id.—Construction of Constitution—Forfeiture of Interest.—Section 5 of article XIII of the constitution, providing for the forfeiture of interest, where “a debtor is obligated to pay any tax or assessment on money loaned or on any mortgage, deed of trust, or other lien,” has no application to a contract by a purchaser under a contract of sale to pay taxes on the land; nor does it refer to a possible equitable lien of the purchaser for purchase money paid, which could arise, if at all, only where the vendor is in default.</p> <p>Id.—Liens not Implied.—The law implies no lien from a mere contract to pay the purchase money; and where the vendor has title, he has it without any occasion for a lien.</p> <p>Id.—Judgment Limiting Equitable Bight of Purchaser—Amount of Interest Bequired to be Paid.—Held, that the amount of interest fixed by the judgment in the action to foreclose the equitable rights of the purchaser required to be paid, besides the principal, within a limited time, in order to preserve such equitable rights, was justified by the pleadings, as well as by a proper construction of the contract, and also by presumed evidence, not returned upon appeal, removing any possible uncertainty in the language respecting interest.</p>

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

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

<p>Action to Enforce Trust—Insufficient Complaint—Trust not Created—Deed not Delivered.—A complaint in an action to enforce a trust which shows on its face that no trust was created, or title ever vested in the defendant, and that the deed under which defendant claims was only delivered to him as bailee of the plaintiff for safekeeping, and for no other purpose, and that it was understood that, no title was vested thereby in the defendant, but that plaintiff should retain complete control and dominion over the deed, states no cause of action to enforce a trust by reason of defendant’s improper record of the deed.</p> <p>Id.—Intention to Make Deed Operative Essential to Delivery.— It is not sufficient, to constitute delivery of a deed, that there should be a mere delivery of its possession, but such act must be accompanied by the intent that the deed shall become operative as such.</p> <p>Id.—Insufficient Complaint to Remove Cloud or Quiet Title— Present Cause of Action not Alleged.—The action considered as really to remove a cloud on plaintiff’s title, or to quiet her title against the adverse claim of the defendant, cannot be maintained under the complaint, which does not state facts sufficient to constitute any cause of action, since it only alleges title as of the date of the deed, and shows no title in plaintiff at the time of the commencement of the action.</p> <p>Id.—Presumption Against Pleader.—The presumption in favor of a general demurrer' is, that the pleader has stated his case as strongly as he can, and the demurrer was properly sustained on the ground that it must be presumed that at the time plaintiff brought the action she had no further interest in the property.</p> <p>Id.—Judgment upon Demurrer not a Bar to Subsequent Action.— The final judgment rendered upon demurrer to the complaint is not a bar to a subsequent action for appropriate relief under proper averments, showing a cause of action.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from orders refusing to set aside and vacate the conclusions of law, and amend the same, and to amend the judgment accordingly. A. L. Rhodes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action fob Breach of Warranty—Sufficiency of Pleading—Beview upon Appeal.—Upon appeal from a judgment for damages in an action for a breach of warranty, upon the sale of apricot trees that they were of a specific variety, held, that the complaint stated a sufficient cause of action without ambiguity or uncertainty, and that a demurrer thereto was properly overruled.</p> <p>Id.—Sufficiency of General Finding—Uncertainty in Elements of Damages Considered—Support of Judgment.—Under a complaint alleging separate items of damages for breach of the warranty, in separate sums, besides averring a total damage of $1,553.33, a general finding that all of the allegations of the complaint are true except as to damages, which were fixed at $450, thdugh uncertain as to the elements of damage considered by the court, is sufficient to support the judgment, in the absence of a request for a more specific finding.</p> <p>Id.—Construction of Findings—Uncertainty.—Findings which are in any respect uncertain are to be so construed as to support the judgment, rather than to defeat it.</p> <p>-Id.—Argument upon Appeal—Appellant’s Points—Opening Brief— Beply Brief.—The points to be urged for the appellant as ground for reversal are required to be presented in the opening brief; and a point urged for the first time in his reply brief may properly be overruled.</p> <p>Id.—Plea of Statute of Limitations—Finding Against Plea—Appeal upon Judgment-roll—Presumption.—Upon au appeal taken from the judgment on the judgment-roll, without a bill of exceptions presenting the evidence, a finding against a plea that the action is barred by the statute of limitations is conclusive, and the evidence must be presumed to have shown sufficient facts to take the case out of the bar of the statute.</p> <p>Id.—Statute not Presented by General Demurrer.—A general demurrer does not present the question of the bar of the statute of limitations.</p> <p>Id.—Jurisdiction to Bender Judgment—Absence of Prayer to Complaint—Stipulation Adding Prayer.—When the original complaint contained no prayer for relief, a stipulation adding a sufficient prayer thereto, specified in the stipulation, and stating that the answers of defendants shall stand and be the answer to the complaint as amended, is to be reasonably construed as requiring no further addition to the prayer.</p> <p>to—Trial Without Objection—Waiver.—Where the case was tried without objection that the stipulated prayer was not formerly added to the complaint, it is too late after judgment to object to such omission.</p> <p>Id.—Effect of Answer—Belief not Limited to Prayer—Jurisdiction.—Where an answer is filed, the court may grant any relief consistent with the case made by the complaint and embraced within the issues, and is not limited to the relief demanded in the prayer. In such ease the jurisdiction of the court to grant any particular relief does not depend on the prayer of the complaint, but upon the issues made by the pleadings.</p>

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

<p>Prohibition—Equity Power—Behoving Directors of Corporation— Fraud—Abandonment of Trust—Order for Receiver—Order of Sale—Remedy by Appeal.—A court of equity has power to remove the directors of a corporation for fraudulent practices, and when they have abandoned their trust, may make an ex parte order appointing a receiver to preserve its assets; and, when circumstances arise requiring it, may order the assets to be sold. Each of such orders is appealable, and prohibition will not lie to restrain proceedings under either order.</p>

PETITION for discharge on writ of habeas corpus, from the custody of the sheriff holding petitioner, under punishment for contempt by the Superior Court of the City and County of San Francisco. M. T. Dooling, Judge presiding. The facts are stated in the opinion of the court.

<p>Criminal Law—Verdict not Appealable.—The Penal Code does not provide for an appeal from the verdict of the jury in a criminal action; and the record presents nothing for consideration under an appeal attempted in that name.</p> <p>Id.—Rape—Intercourse with Young Girl—Redirect Examination— Arrest upon Street—Delated Complaint to Officer—Evidence not Prejudicial.—Upon the trial of a defendant charged with rape, in having sexual intercourse with a girl under sixteen years of age, where on cross-examination the defendant elicited the fact of a delayed complaint made to a police sergeant, when she was arrested on the street in the early morning three weeks after the alleged offense, the repetition of evidence on re-examination that she then for the first time complained to the arresting officer that she had been ravished by the defendant would not prejudice the defendant.</p> <p>Id.—Rebuttal of Cross-examination as to Lewd Conduct—Purpose of Drowning when Arrested on Street.—It was proper on redirect examination to rebut the inference of subsequent lewd conduct of the prosecutrix in being on the street before arrest, elicited on cross-examination, in order to show that her condition testified to by a physician might have been caused by other lewd conduct, by testimony that before arrest she left her home because she was worried and was going to drown herself, when she was arrested and made the complaint against defendant to the arresting officer.</p> <p>Id.—Incompetent Opinion Evidence—Worry About “Family Way" —Improper Corroboration—Error in Refusing to Strike Out. The response to a question as to the cause of her worry, when going to drown herself, “I was afraid I was in a family way, so I run away,” was incompetent opinion evidence of the prosecutrix, offered in improper corroboration of the ease for the people, and which might have great weight with the jury, and it was prejudicial error to refuse a motion to strike it out.</p> <p>Co.—Impeachment of Witness—Prejudicial Rejection of Opinion.— Where a witness is called to impeach another by showing knowledge of the bad reputation of the witness for truth and veracity, it is improper to reject the opinion evidence of the impeaching witness, based on such knowledge, that he would not believe the impeached witness under oath. It cannot be said that such rejection is not prejudicial, and that the opinion rejected will have no weight with the jury.</p> <p>Ib.—Modification or Refusal of Requested Instructions-—Conclusion of Guilt or Innocence.—It was proper to modify a requested instruction so as- to make it import substantially that where the evidence justified equally or alike a conclusion of guilt or innocence, the jury must adopt the latter, and to refuse a requested instruction as to two chains of circumstances not covered by a rule of law, and not within the facts of the case.</p> <p>Id.—Proper Instructions as to Guilt or Innocence.—It was proper to instruct the jury that if two opposing conclusions could with equal propriety be drawn from the evidence, the one favoring innocence should be adopted, and that the one favoring guilt of the accused could only be adopted when convincing beyond a reasonable doubt.</p> <p>Id.—Instructions Construed Together^-Reasonable Doubt.—All of the instructions embodied in the charge to the jury are to be construed together; and when they embody the whole law as to reasonable doubt, instructions given must be deemed modified by that law, though not fully expressed in each instruction.</p> <p>Id.—Modification of Request—Distrust of Willfully False Witness.—The court properly modified an instruction as to the distrust of a willfully false witness, the request for which added to the code provision evidence taken either at the preliminary examination or at the trial, by striking out all allusion to the place where the evidence was given.</p> <p>Id.—Instruction as to Inferences of Fact for Jury—Commonplace Matters.—Instructions improperly relating to inferences of fact which are matters for the jury, in so far as they relate to commonplace matter which the jury must be presumed to know about in the absence of instructions, are not ground of reversal, whether given or refused, if neither is prejudicial to the defendant.</p> <p>Id.—Instruction as to Impeachment—Prejudicial Refusal of Request.—When the court instructed the jury merely that a witness may be impeached by a party against whom he is called by contradictory evidence, or by evidence that his truth, honesty or integrity is bad, it was prejudicial error to refuse an additional request that he may also be impeached if "he has made at other times statements inconsistent with his present testimony,” if there is evidence to which it applied.</p> <p>Id.—Instruction Limiting Evidence of Impeachment.—It is proper for the court to instruct the jury that evidence offered for the purpose of impeachment is to be considered only in reference to that 'limited purpose, and cannot be considered as establishing the facts stated.</p> <p>Id.—Cautionary Instruction not Required as to Evidence of Prosecutrix—Harmless Error in Modifying Request.—There is no statutory requirement for a cautionary instruction in rape cases, as to the evidence for the prosecutrix, or as to corroboration of her evidence, but a conviction will be sustained upon the testimony of the prosecutrix alone. When the defendant requested a cautionary instruction as to scrutinizing the evidence of the prosecutrix with great care, and it was modified by adding "except where it is corroborated by other credible evidence, if you find that there is any such in the case," whatever error was committed in giving the instruction as modified was to the benefit, and not to the prejudice, of the defendant.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>G. C. De Garmo, and Charles L. Batcheller, for Appellants.</p>

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

<p>Appeal—Order Sustaining Demurrer—Absence of Judgment—Dismissal.—An order sustaining a demurrer to a complaint is not appealable, and where it appears that no judgment has been rendered or entered, such order is not reviewable, and the appeal therefrom must be dismissed.</p> <p>Id.—Entry of Judgment Essential.—The entry of a judgment from which an appeal may be taken is essential to the review of an order sustaining a demurrer to the complaint, whether the court refuses leave to amend, or the plaintiff declines to amend the complaint demurred to.</p> <p>Id.—Demurrer Properly Sustained.—Held, upon examination of the record, notwithstanding the dismissal of the appeal from the order sustaining the demurrer, it appears that the demurrer to the complaint was properly sustained.</p>

<p>Officers—Misdemeanor—Removal of Constable—Willful Neglect to Preserve Peace—Sufficiency of Accusation.—A written and verified accusation, under section 772 of the Penal Code, for the removal of a constable from his office for misdemeanor in office, which charges that on a certain date, within a town in his township, “a large number of persons on the streets of said town did then and there willfully and unlawfully disturb the peace of said neighborhood and of said plaintiff by threatening, traducing, quarreling and fighting with one another,” and alleges “that said defendant was present and a witness to all and each of said acts, . . . and did willfully, knowingly, and unlawfully refuse and neglect to preserve the peace, or to make any effort.to prevent the same,” sufficiently shows a willful neglect of duty to prevent or suppress the disturbance of the peace, which rendered him liable to removal from office.</p> <p>Id.—Insufficient Clause—Vulgar and Profane Language.—A clause in the accusation which charges that said disturbers of the peace did “then and there use vulgar and profane language, which was heard by all passers-by on said streets,” without alleging that it was “used in the presence of women or children in a loud and boisterous manner,” is insufficient, and must be eliminated from the charge.</p> <p>Id.—Construction of Statute and Accusation—“Maliciously and Willfully”—“Willfully and Unlawfully.”—Under the Penal Code (section 7, subdivision 4), the word “maliciously” imports “an intent to do a wrongful act”; and under section 415 of the same code, making everyone who “maliciously and willfully disturbs the peace,” etc., guilty of a misdemeanor, an accusation alleging that certain persons “did willfully and unlawfully disturb the peace ... by fighting” sufficiently meets the requirement of the statute.</p> <p>Id,—“Fighting” Unlawful.—“Fighting” has a well-defined meaning, and is itself unlawful, and persons cannot “willfully and unlawfully” disturb the peace by fighting without'having the “intent to do a wrongful act.” Persons who are engaged therein are committing a public offense; and a peace officer who is present cannot be a passive spectator and discharge the duties of his office.</p> <p>Id.—"Uncertainty in Accusation—Waiver op Objection—Support op Judgment.—Any uncertainty in the accusation was waived by failure to object to its sufficiency in that respect in the court below, when it is clear that the facts alleged and the corresponding findings, even if defectively stated, furnish ample support for the judgment ousting the defendant from his office.</p> <p>Id.—Sufficiency op Evidence—Review upon Appeal.—In considering the sufficiency of the evidence to support the findings, the testimony must be taken- most strongly against the appellant, and it is sufficient' that the testimony in support of the accusation justifies the findings.</p> <p>Ed.—Appellate Jurisdiction—Question Raised, but not Decided.— It seems, from cases cited, that the proceeding to remove an officer summarily for misdemeanor in office by accusation, not being presented by indictment or information, is not within the appellate jurisdiction of this court, or of the supreme court under the constitution; and that the judgment thereon is final, and the appeal therefrom should be dismissed; but inasmuch as the judgment must be upheld, and the question of jurisdiction has not been raised by counsel, it is not decided in this ease.</p>

<p>Deed of Trust—Void Trust to Convey—Trust as to Income—Compensation of Succeeding Trustee.—A trust to convey to designated beneficiaries after the determination of an estate for life in the net income of the trust property is void, and a succeeding trustee, whose compensation is not fixed in the declaration of trust, can claim no commissions upon the corpus of the trust estate, but is entitled only, under section 1618 of the Code of Civil Procedure, to the commissions on the income actually accounted for by him during the existence of his trust.</p> <p>Id.—Effect of Waiver of Compensation by Preceding Trustees.—The waiver of compensation by preceding trustees, whether intended for the benefit of the life tenant or for that of all the beneficiaries, cannot have any effect to increase the commissions on the income accounted for by the succeeding trustee, whose compensation must have reference to the rights of the preceding trustees, whether asserted by them or not.</p> <p>Id.—Allowance of Commissions on Life Estate Sold—Appeal by Trustee—Error Against Respondent not Considered—Affirmance.—The question whether the court erred in allowing commissions to the succeeding trustee on the whole value of the life estate, which was sold to the respondent during his incumbency ■ of the trust, cannot be considered, upon an appeal by the trustee only, who claims a greater compensation than. that allowed, to which he is not entitled, and in such case the order adjusting his compensation must be affirmed.</p>

PETITION for writ of review to annul a judgment of the Superior Court of-San Joaquin County dismissing an appeal from the justice’s court of O’Neal township. Prank H. Smith, Judge. The facts are stated in the opinion of the court.

<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>Estates op Deceased Persons—Compensation op Attorney por Executor—Services upon Contest op Will Before Probate.—The court properly allowed compensation for services rendered to the executor by his attorney, in resisting a contest of the will before probate, as the result of which the will was established, and also for services rendered to the executor upon an appeal taken by the contestants which was dismissed.</p> <p>Id.—Duty op Executor to Establish Will—Bight to Litigate—Expense op Counsel Charged upon Estate.—It is the duty of the executor, in the discharge of his trust, to establish the will and to execute the wishes of the testator, and having the right to litigate for that purpose, the expense of counsel necessarily employed for successful litigation is a charge upon the estate.</p> <p>Id.—Denial op Eormer Application por Eees—Privilege op Benewal —Pendency op Action—Discretion—Presumption.—The denial of a former application for allowance of attorney’s fees after the will was established, with privilege of renewing the same, made before the motion of the contestants for a new trial, and their subsequent appeal, was an order made in a pending action, the subsequent granting of which, at the end of the litigation, together with an allowance for further services rendered, was in the discretion of the court, which must be presumed to have been properly exercised.</p> <p>Id.—Power op Executor to Charge Estate—Belation op Liability After Appointment.-—Assuming that no power to charge the estate by contract exists in the executor prior to his due appointment, nevertheless when such appointment is made, the liability of the estate for expense of counsel incurred in securing probate of the will would relate to the initiatory act necessarily performed in endeavoring to secure probate of the will.</p> <p>Id.-—Construction of Code—Testacy Favored—Bights of Attorney. The law favors testacy; and section 1616 of the Code of Civil Procedure, as to the rights of an attorney who has rendered services to an executor or administrator to apply to the court for compensation, should receive such construction as would include services rendered to the executor in establishing the will.</p>

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