Volume 9 — California Appellate Reports

<p>APPEAL from a judgment of the Superior Court of Fresno-County rendered upon an order directing a verdict for the defendant. Geo. E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Non-negotiable Note—Indorsement by Third Party—Guaranty— Liability of Guarantor.—A third party who indorses a nonnegotiable note for the purpose of giving it credit is a guarantor, and is liable prima facie for the payment of the note upon default of the principal, without any previous demand or notice.</p> <p>Id.—Indorsement by Corporation as Guarantor—Authority of Executive Committee.—Where a corporation indorsed the note as guarantor by an executive committee, which it had authorized to act in its name, in pursuance of its charter and by-laws, the corporation is bound by such indorsement.</p> <p>Id.—Reception of Benefit by Corporation—Estoppel.—Where it appears that the maker of the note was an agent of the corporation indorser engaged in the sale of its stock in promotion of an enterprise in which the corporation was engaged, and was an accommodation maker, and that all of the money received from the payee was received by the corporation and applied for its benefit, it is practically the principal debtor, and is estopped to question the authority under which it obtained the money.</p>

<p>Action fob False Imprisonment Against Police Officer—Finding Against Evidence—Appeal.—Held, upon appeal in an action against a police officer for false imprisonment, in which the findings and judgment were for the plaintiff upon trial by the court, that there is no evidence in the record to sustain the finding that the plaintiff was in fact unlawfully restrained of his liberty by the defendant, but that the uneontradieted evidence shows, on the contrary, that all that the police officer dicl was in the lawful exercise of the authority conferred upon him as such officer.</p> <p>Id.—Authority of Police Officer—Suspicious Circumstances—Inquiry as to Identity—Refusal of Plaintiff to Answer—Search for Weapons.—When, the plaintiff was found by the police officer at a late hour of the night in a vicinity where he had been specially ordered to search for a suspicious character, and where previous crimes had been committed, he had authority to inquire as to his identity and business, and it was the duty of the defendant to answer him, knowing him to be a police officer in uniform, and when he refused to answer, the officer properly proposed to take him to the police station, if he persisted in such refusal, and had the right to search him for any concealed weapons.</p> <p>Id.—Waiver by Plaintiff of Formal Arrest.—The plaintiff waived a formal arrest by the police officer, by his voluntary action in urging the officer to come along with him and go to the police station, at which he arrived in company with the officer.</p> <p>Id.—Report by Officer to Sergeant—End of Duty—Irresponsibility for Order of Sergeant for «Imprisonment.—The duty of the police officer was at an end when he reported to the police sergeant where the plaintiff was found, and his refusal to answer.. He could not be held responsible for the action of the sergeant in taking plaintiff into custody, and ordering him imprisoned until further investigation should be made. The sergeant was alone responsible for such imprisonment.</p>

<p>Change of Place of Trial—Sufficient Showing as to Besidence.— Upon a motion to change the place of trial to the residence of the defendant moving, an affidavit that “on the day of the beginning of the proceedings,” naming the date of the commencement of the action, the defendant “had his place of residence” in another county named, sufficiently avers the fact that at the time of the commencement of the action he resided in such county.</p> <p>Id.—Insufficient Affidavit of Merits—“Pacts of Case” not Stated —“Advice of Counsel” not Shown.—An affidavit of merits which merely states that affiant has fairly and fully stated “all the facts” to his counsel without averring that the “facts of the case” were so stated, and which merely avers that he “is advised and believes that ' he has a good and valid defense,” without averring that he was so “advised by his counsel,” is insufficient to support an order changing the place of trial.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County, and from an order denying a new trial. Paul W. Bennett, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. W. Camp, A. H. Van Cott, and U. T. Clotfelter, for Appellant.</p>

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

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

<p>Vendor and Purchaser—Contract of Sale—Recovery of Deposit for Failure of Title—Pleading—Insufficient Count.—In an action to recover money deposited under a contract for the sale and purchase of land for alleged failure of consideration in not furnishing a merchantable title, where the contract appended to a second count in the complaint provided for thirty days in which to have the title examined by the California Title Insurance and Trust Company, whose policy issued without objection should be conclusive of title, any objection to be removed by the vendor, the failure of such count to allege that such company ever examined the title, or was requested to do so, or that it made any report thereon, or objection thereto, or that the title was such that it would not issue a policy thereupon without objection, states no cause of action, and a demurrer thereto was properly sustained.</p> <p>Id.—Rights of Parties as to Title—Rescission by Vendee—Essential Averment.—The parties have the right to contract for such title as they may see fit, and the vendee cannot rescind under the contract for failure of title, without alleging the failure of such title as was contracted for.</p> <p>Id.—Trial Under First Count—Extension of Time to Report on Title—Act of God—Judicial Notice of Holidays After Earthquake.—Where -a trial was had under a first count of the complaint alleging that the time for procuring a certificate of title within thirty days after April 4, 1906, was extended by act of God until July 3, 1906, the court will take judicial notice that by the earthquake and conflagration of April 18th, and the succeeding holidays declared by the governor the time for procuring such certificate was extended to and including the fourth day of June, 1906, and no longer.</p> <p>Id.—Support of Finding—Negligence of Purchaser in Procuring Certificate.—Where it appears that the certificate of title was in readiness for delivery June 4, 1906, and that the purchaser neglected to obtain the same until July 3, 1906, a finding that she was not prevented by the act of God or any other cause from procuring the policy within the time limited therefor, and that her failure to report the result within the required time was the result of her own neglect, is sufficiently supported.</p> <p>ID.—Prompt Removal of Objection by Vendor—Objection of Purchaser Under Contract—Payment upon Deed.—When the objection by the title insurance company for want of a deed from the city was first reported by the purchaser to the vendor July 7, 1906, and on July 11, 1906, the objection was promptly removed by payment thereto of the whole expense of procuring such deed, whereupon the title insurance company immediately offered to plaintiff to insure the title, the contingency then arose on which plaintiff was bound under the contract to accept and pay for the title upon the execution of a deed therefor.</p> <p>ID.—Waiver of Default of Plaintiff—Pleading.—When the plaintiff relies upon the waiver of his default in not complying with the condition of his contract, he must both plead and prove such waiver by the defendant.</p> <p>Id.—Time of Essence of Contract—Absence of Tender—Default in Conditions—Payment not Recoverable.—When the contract makes time of its essence, and plaintiff does not claim to have tendered the residue of the purchase money, and is in default in the performance of the conditions of the contract, he cannot recover the payment made to the defendant.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a motion to vacate a default and judgment on default. Chas. Monroe, 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 Luis Obispo County, and from an order denying a new trial. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor, and Purchaser—Contract op Sale—Limited Agency to Sell for Cross Sum—Sale Per Acre Unauthorized and Void.— Where the owner of property authorized an agent to sell it for a gross sum specified, a contract of sale by the agent, without the consent of the owner, at a price per acre was beyond the authority conferred; and where it appears that the purchase by measurement at the agreed price per acre would result in a substantial diminution of the gross price fixed, and that the purchaser sought to obtain through the agent terms to which the principal had refused to agree, when brought to him by the agent as a proposed purchaser, the sale was void, and the owner may quiet his title against the purchaser.</p>

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

<p>Mandamus—Bill of Exceptions in Criminal Case—Amendments— Jurisdiction of Trial Court.—Mandamus will not lie to compel the trial court to settle a particular bill of exceptions presented by the defendant in a criminal case, where amendments have been proposed thereto by the district attorney, and the time within which the trial court has jurisdiction to settle and allow a bill of exception has not elapsed, and no notice for the final settlement has been given.</p>

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

of certiorari to review an order of the Superior Court of Los Angeles County, remanding a case certified to it from a justice’s court. Frederick W. Houser, Judge. The facts are stated in the opinion of the court.

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

<p>The facts are stated in the opinion of the court.</p> <p>Joel H. Smith, George B. Graham, and Graham & Wallace, for Appellant.</p>

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco, made in proceedings supplementary to execution. Jas. M. Troutt, Judge. The facts are stated in the opinion of the court.

<p>Vendor and Purchaser—Contract op Sale—Ordinary Authority to Real Estate Agent to Sell—Finding op Purchaser.—The ordinary written authority from the owner of land to a real estate agent to sell the same merely imports authority to find a purchaser ready and willing to contract with the owner for the sale thereof, and carries no authority to bind the owner by a contract of sale, if no such authority is expressly conferred.</p> <p>Id.—Express Authority to Bind Owner by Contract of Sale— Specific Performance.—When the owner expressly authorizes the agent to sell for him, and in his name, land of the owner, described, upon specific terms set forth, and expressly agrees to convey the same by a sufficient deed to any purchaser obtained by the agent, the agent is authorized to execute a contract of sale in the owner’s name, the specific performance of which may be enforced by the purchaser.</p> <p>Id.—Construction of Code—Agent Thereunto Authorized.—In the concluding language of section 1741 of the Civil Code, requiring an agreement for the sale of real property to “be in writing and subscribed by the party to be charged, or his agent, thereunto authorized, in writing,” the word “thereunto” has the ordinary meaning of “to that,” which is an elliptical expression for the. phrase “to do that,” and, so far as the agent is eoneerned, the language imparts that he must be authorized in writing “to do that,” viz., to execute an agreement of sale which shall bind the owner.</p> <p>Id.—Construction op Contract as to Authority of Agent.—In construing a contract to determine the authority conferred upon an agent to execute a contract of sale, its language, measured according to the established rules of interpretation, must fairly import and clearly reveal the intention of the owner specifically to empower the agent to enter into a contract of sale of the property in the ordinary acceptation of that term.</p> <p>Id.—Words Importing Authority, “For Me, in My Name.”—The words “for me, in my name,” convey the idea of selling for the principal, and by his authority, as representing the principal in contracting to sell the land, with power to bind the principal.</p> <p>Id.—Confirmation of Authority—Agreement to Convey.—The agreement to convey to the purchaser deprived the owner of the right to decline to execute a deed, and operated as an agreement to ratify and confirm the sale to any purchaser that the agent may contract with for the sale of the owner’s property.</p> <p>Id.—Details op Terms of Sale.—The details of the terms of sale, leaving nothing to be supplied by the owner, point strongly to the conclusion that it was designed to authorize the purchaser to execute a contract of sale.</p> <p>Id.—Eight of Purchaser to Enforce Contract—Benefit op Purchaser.—When an owner promises to convey to any purchaser who might be secured by his agent, the contract by him is made for the benefit of such purchaser; and there is no merit in the contention of the owner that the purchaser cannot enforce specific performance of the contract on the ground that it was not made for Ms benefit. It was not necessary that the purchaser should have been named in the presence of the owner.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. Henry A. Melvin, 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 Diego County, and from an order denying a new trial. E. S. Torrance, 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 orders denying a new trial, and denying a motion to strike an amended complaint from the files. W. P. James, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Wrongs by Officers of Two Corporations—Repair of Barn—Untenable Action—Loss to IiíNocent Party.—Where a corporation bearing the names of two officers thereof had erected a barn for defendant, the roof of which fell in, and such officers, upon request to repair the loss, agreed to do so on defendant pay ing one-half the cost, defendant being ignorant that such corporation had ceased to do business, and that such officers were officers of plaintiff corporation, who wrongfully charged all the materials and work upon such roof upon the books thereof against defendant, such corporation cannot maintain an action against defendant for want of privity of contract, and because it had put it in the power of its officers to impose upon defendant as an innocent third party, and must bear the loss resulting from the wrongful acts of its agents against such innocent party.</p> <p>Id.—Principal and Agent—Violation of Duty by Agent—General Rule—Protection of Innocent Third Person.—Though the general rule is that a principal may recover the value of his own property from a third person when transferred thereto by the agent in violation of his duty to his principal) yet when the agent is invested with apparent authority to dispose of property, and by the principal held out as possessing authority to use materials and labor of his principal, such redress, notwithstanding the agent's wrongful act, will be denied against an innocent third person, for the reason that “where one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer. ’ ’</p> <p>Ib.—Bight to Becover upon Contract with Agent—Estoppel.—The" plaintiff corporation would have had the right to recover upon the contract made by its officers with defendant to pay one-half of the cost of repairing the roof, but where it was tendered by the defendant, and the plaintiff refused to receive it or anything less than the whole sum expended, and defendant subsequently paid such sum to the benefit of creditors of the first corporation with the approval of its assignee thereof, the plaintiff corporation is es-topped to claim the same or any right thereto.</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>Criminal Law—Rape—Sufficiency of Information—Time of Offense.—An information for rape committed upon a female under the-age of sixteen years, which charges that the offense was committed “on or about” a specified date, within the time limited for filing; the information, is sufficiently definite as to time.</p> <p>■ Id.—Averment of Nonmarriage of Girl Unnecessary.—It is sufficient that the information alleges that the female under sixteen years of age, with whom sexual intercourse was had by defendant, was not at the time the wife of the defendant; and it is not required that it should aver that she had never been married to another person. The offense is complete under the statute, even though the female may have been at the time of the offense the wife of another.</p> <p>Id.—Instructions—Presumption of Truthfulness—Rebuttal by Bias and Prejudice.—A charge by the court that “the presumption that a witness speaks the truth may be repelled by his interest in the case, if any, or his bias or prejudice, if any,” though it goes beyond section 1847 of the Code of Civil Procedure, is not, therefore, error; and it amounts only to telling the jury that interest and bias may be considered in weighing the testimony.</p> <p>Id.—Belief of Prosecutrix—Reasonable Doubt.—The court properly instructed the jury: “If you believe the prosecutrix, and are satisfied from all the evidence in the case, beyond a reasonable doubt, of the defendant’s guilt, then you should so find.”</p> <p>Id.—Instruction as to “Penetration”—Omission of “Sexual” not Prejudicial.—An instruction that “proof of any penetration, however slight, is sufficient in a ease of rape,” is not rendered prejudicial by the omission of the word “sexual” preceding the word “penetration,” where, in view of the other instructions defining the offense, and which must be read in connection therewith, it was clearly disclosed to the jury that “sexual penetration” was referred to in such instruction.</p> <p>Id.—Construction of Penal Code—“Sexual Penetration”—Provision Inclusive of Offense Charged.—The provision in section 263 of the Penal Code that “any sexual penetration, however slight, is sufficient to complete the crime,” refers to every definition of “rape” contained in section 261 of that code, including the offense here charged, of “rape” by “sexual intercourse with a female under the age of sixteen years.”</p> <p>Id.—Constitutionality of Offense—Knowledge—Motive—Criminal Intent.—Section 261 of the Penal Code, defining the offense charged, is not unconstitutional in making the act of sexual intercourse with a female under the age of sixteen years a felony, independent of whether or not the accused intended any crime, or had any notice or knowledge of any fact or facts which would constitute his acts a crime. In such ease, the illegal motive is present, and becomes a criminal intent, when the facts, at whose peril he acts, are shown to exist.</p> <p>Id.—Protection of Society and Family—Estoppel of Offender.— The protection of society, of the family, and of the infant, demands that one who has carnal intercourse with an infant shall do so in peril of the fact, and he will not be heard against the evidence to urge his belief that the victim of his outrage had passed the period which would make his act a crime.</p>

<p>Criminal Law—Settlement of Bill of Exceptions in Appellate Court—Primary Duty of Trial Court.—Primarily, the duty of authenticating the record upon appeal rests with the trial court, and in order that this court should interfere, it must clearly appear and the party seeking relief should show that the. trial court refused to embody in the bill an objection to a decision of the court on a matter of law, and that an exception was regularly taken to such decision.</p> <p>Id.—Insufficient Application—Settlement in Trial Court.—Where the application to this court shows that a bill of exceptions has been settled in the trial court, but does not show whether it was not properly settled and allowed, nor that petitioner was denied the right to prove any exception which he should be permitted to prove in this court, the application is insufficient.</p> <p>Id.—Province of Trial Court—Power of Appellate Court.—When one bill of exceptions has been settled and allowed on the appeal by the action of the trial court, the appellate court has no power to compel the trial judge to settle another bill, or to itself assume to do so.</p> <p>Id.—Ex Parte Application.—When the application to settle a particular bill of exceptions presented by the defendant to this court was presented ex parte, without notice, even if it be deemed sufficient in form for the proving of an exception denied by the trial court, it cannot be acted upon.</p> <p>Id.—Settlement of Exceptions—Notice Essential.—Bills of exception are only settled upon notice, and the bill or statement embodying the exception which defendant desires to prove before this court could be considered only after notice given to the district attorney.</p>

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

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

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

The facts are stated in the opinion of the Court. U. S. Webb, Attorney General, Timothy J. Lyons, Arthur M. Seymour, and Garret W. McEnerney, for Appellant. The enactment of the provisions of section 869 of the Political Code as to vacancies in the office of controller and the filling of the same under section 1001 thereof is constitutional and valid.

<p>Justices ’ Courts—Jurisdiction—Failure for Three Tears to Serve and Return Summons—Construction of Code.—Section 581 of the Code of Civil Procedure, providing for dismissal of an action for failure to serve and return the summons within three years, is inapplicable to justices’ courts; and notwithstanding such failure in a justice’s court, it has jurisdiction to try the case upon the merits, when the action is not dismissed under section 890 of that code, which is exclusively applicable to justices’ courts.</p> <p>Id.—Special Provisions for Justices’ Courts—General Provisions Excluded.—When general provisions relating to the same subject matter applicable to the superior court are only in part inserted in sections regulating proceedings in justice’s courts, and are coupled therein with express limitations or conditions, such general provisions are thereby excluded from applicability to justices’ courts, and the special provisions alone apply thereto.</p> <p>Id.—Motion in Justice’s Court to Dismiss Under Special Section- - Jurisdiction—Discretion.—A motion made under section 890 of the Code of Civil Procedure, especially applicable to justices’ courts on the subject matter of dismissal, to. dismiss the action for failure to prosecute the same with reasonable diligence to final judgment, was not addressed to the jurisdiction, but to the discretion, of the justice’s court; and when, upon a counter showing, such motion was denied, the court had jurisdiction to try the action.</p> <p>Id.—Jurisdiction of Appeal to Superior Court—Prohibition.—The justice’s court having had jurisdiction to try the action upon its merits, and to render judgment therein, the superior court had jurisdiction of an appeal-regularly taken therefrom, and prohibition will not lie to prevent such court from determining the appeal,. on the ground that the summons was not served and returned within three years in the justice’s court.</p>

<p>Taxation—Excessive Sum in Delinquent List—Void Sale to State for Correct Sum.—When the delinquent list, as published, contained an erroneous statement of an amount of taxes, penalties and costs in excess of the sum authorized by law, a sale made tnereunder to the state, though made for the correct sum, is void.</p> <p>Id.—Strict Compliance with Law Essential—Smallest Deviation Fatal.—In tax proceedings, in order to divest title, a strict compliance with the law is essential. The exact sum required by law must be stated in the delinquent list; and the smallest deviation therefrom, in an excessive statement, is fatal.</p> <p>Id.—Notice of Sale Jurisdictional—Deed to State not Conclusive. The contents of the delinquent list are part of the notice of sale, and an unauthorized notice constitutes no notice. The notice of sale required by law is jurisdictional, in order to constitute due process of law, as a condition of transferring the title to the state; and the deed to the state cannot be conclusive evidence of the performance of acts necessary to confer jurisdiction.</p>

<p>Order Denying Net Trial—Review upon Appeal—Matters not Reviewable.—When there is no appeal from the judgment, and the appeal is solely from an order denying a new trial, neither the sufficiency of the complaint nor of a demurrer thereto, nor an order denying a nonsuit moved for on the ground of insufficiency of the complaint, nor the sufficiency of the findings to support the judgment, nor any conflict therein, can be made the subject of review upon the appeal from such order.</p> <p>Id.—Review op Evidence and Rulings—Grounds op Objection—Error must Appear.—The court may look into the bill of exceptions to determine whether the evidence is sufficient to support the findings, and whether any prejudicial errors of law were committed at the trial. But error must be affirmatively made to appear; and when the grounds of an objection to a ruling are not stated, no reviewable error appears.</p> <p>Id.—Failure to Find upon Material Issue—Decision Against Law. Any failure by the court to find upon a material issue is a decision against law, reviewable as such, upon a motion for a new trial, and upon appeal from the order denying the same. But, held, that no such failure appears in the record. [By supreme court on petition for hearing therein.]</p> <p>Mortgage to Bank—Prior Pledge—Delivery for Foreclosure—Assignment by Insolvent Bank to Pledgee—Defense of Fraud Unsupported.—When a mortgage to a bank was pledged to its creditor, and redelivered to the bank for foreclosure, and the bank became insolvent pending suit, and assigned the note and mortgage upon a settlement absolutely to the pledgee, who was substituted as plaintiff, and a defense was set up that the assignment was a fraud upon the creditors of the bank, and upon defendants as such, held, that the defense of fraud is unsupported by the evidence, that none of the creditors of the bank were shown to be injured, and the assignment was in course of liquidation of the bank’s business with the presumed consent of the bank commissioners, who could not have regarded the mortgage as an asset of the bank in which its creditors were entitled to share.</p> <p>Id.—Pledge op Note and Mortgage—"Things in Action”—Possession not Essential to Lien.—The note and mortgage held by the pledgee, being “things in action,” are subjects of lien without change of possession, and not being dependent upon possession, the redelivery of them to the bank for collection did not extinguish the Hen.</p> <p>Id.—Eight op Bank to Sue as Owner Subject to Lien.—The bank to whom the note and mortgage were delivered by the pledgee had the right to sue thereon as owner thereof, subject to the Een, and was equally interested with the pledgee in enforcing collection thereof.</p> <p>Ib.—Suit in Corporate Name as Payee—Pleading—Unnecessary Allegation.—The bank had the right to sue in its corporate name as payee of the note and mortgage, without the necessity of alleging intermediate assignments, or that the bank was in course of liquidation.</p> <p>Id.—Authority op Bank to Assign Mortgage to Pledgee in Settlement Under Bank Commissioners’ Act.—The bank was not without authority under the bank commissioners’ act to make an absolute assignment of the note and mortgage, in settlement with the pledgee, whose interest accrued before the bank commissioners took charge of the bank, which was then a going concern in process of liquidation under the direction of the bank commissioners who had full knowledge of its affairs, and presumably approved of such settlement.</p> <p>Id.—Parties—Joint Interest—Exclusive Interest op Pledgee by Assignment—Substitution.—When the suit was commenced, both the bank and its pledgee were interested in the cause of action, and either could sue upon it, and when the bank, which it was agreed should sue, assigned all of its interest to the pledgee, the latter, as full owner, was entitled to be substituted in the place of the bank as plaintiff.</p> <p>Id.—Statute of Limitations.—The action having been properly com; meneed by the payee in joint interest with the pledgee, within the</p> <p>, statute of limitations, the absolute assignment of all interest by the payee to the pledgee, and the substitution of the assignee as plaintiff, was not the commencement of a new action by the substitute, subject to the statute.</p> <p>Id.—Leave to File Supplemental Complaint—Pleading op Assignment—Discretion—Facts Appearing in Proof.—The court did not abuse its discretion in granting leave to the substitute to file a supplemental complaint pleading the assignment, where no new material issue was presented, and all of the facts respecting the rights of the plaintiff, the pledge of the note and mortgage, the delivery of it for collection, and the assignment to the plaintiff, had already appeared in proof.</p>

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

<p>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>Action fob Reasonable Value of Services—Pleading—Statute of Limitations.—In an action to recover the reasonable value of services rendered in establishing the ownership of defendant’s mining property before the Secretary of the Interior, where the complaint states a cause of action, and nothing appears upon its face to indicate that the claim is barred by the statute of limitations, a demurrer on that ground will not lie.</p> <p>tD.—Terms of Agreement for Services—Appeal upon Judgment-roll —Conclusiveness of Findings.—Upon an appeal taken by the defendant from a judgment in favor of the plaintiff upon the judgment-roll, it appearing that the complaint and findings support the judgment, the findings are conclusive as to the terms of agreement respecting the services set forth in the complaint, and the contrary terms of agreement relative thereto set up in the answer.</p> <p>Id.—Plea of Agreement for Interest in Mining Property—Failure to Find upon Tender of Deed.—The court having found against the averment in the answer that there was an agreement of the plaintiff to take an interest in the mining property, the ownership of which was sought to be established, the failure of the court to find upon an issue as to the tender of a deed by the defendant to the plaintiff of such interest therein was immaterial.</p>

<p>PETITION for mandamus to compel the judge of the Superior Court of San Diego County to settle a bill of exceptions. E. S. Torrance, 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>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County. Z. B. West, 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. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Charge of Grand Larceny—Conviction for Petit Larceny.—Under an information charging grand larceny, the jury had the right to return a verdict of guilty of petit larceny, which by implication finds that the property stolen was of less value than $50, instead of the value of $200, as charged in the information.</p> <p>Id.—Province of Jury—Interpretation of Verdict.—The jury may ¡find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged; and the verdict must be read and construed with the plea of the defendant and the information.</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>The facts are stated in the opinion of the court.</p>

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

<p>Eminent Domain—Action fob Injuries to Property Damaged by. Railroad Structure—Value of Property—Finding Unsupported. In an action to recover damages to property injured without compensation from the construction of a railroad drawbridge and embankment in front of and partly on plaintiff’s property, held, that a finding as to the value of the plaintiff’s property prior to and at the time of such construction, and as to the damages thus sustained, based on such value, was unsupported by evidence of the value of the property at the time of the trial, more than three years thereafter.</p> <p>Id.—Presumption of. Continuance Prospective Only—Fluctuation of Values—Present Value No Criterion of Past Value.—The presumption stated in section 1693, subdivision 32, of the Code of Civil Procedure, “that a thing once proved to exist continues as long as is usual with things of that nature,” is prospective and not retrospective, and can have no reference to future evidence of value. In view of the fluctuation in values characterizing growing communities, which is matter of common knowledge, evidence of the present value of property can be no criterion of the past value, when more than three years have intervened.</p> <p>Id.—Damages at Time of Trial—Judgment Unsupported—Absence of Averment and Finding.—Conceding that damages may be estimated as of the date of the trial, the evidence adduced as of that time can have no effect to support the judgment, where there is no corresponding allegation in the complaint, nor finding as to what the property would be worth without the obstruction at the time of trial.</p>

<p>Criminal Law—Commission of Lewd and Lascivious Act with Child—Insufficient Indictment.—An indictment under section 288 of the Penal Code, purporting to charge a lewd and lascivious act upon the body of a child under the age of fourteen years, which does not specify the particular acts which the defendant must have committed to warrant his conviction, nor describe the offense in the language of the statute defining it, fails to state a public offense.</p> <p>Id.—Objection to Insufficiency of Indictment not Waived.—The objection to the insufficiency of the indictment to state an offense is not- waived by failure to demur to the indictment, or to move in arrest of judgment, but may be urged at any stage of the case or upon appeal.</p> <p>Id.—Charging Offense in Language of Statute—Exception must be Negatived.—Since section 288 of the Penal Code by its terms only applies to ‘ ‘ any lewd or lascivious act other than the acts constituting other crimes stated" in Part I of the Penal Code (erroneously designated Part II), an indictment, in order to' charge the offense in the language of the statute, if the particular acts constituting the offense are not designated, must negative the exception stated in the language of that section.</p>

' MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. Thos. F. Graham, Judge. The facts pertinent to the motion are stated in the opinion of the court.

<p>Criminal Law—Murder—Mailing Poisoned Gandy—Loss or Photographic Exhibits op Handwriting by Fire—Reversal not Required.—Upon appeal from a judgment of conviction of murder committed by poisoned candy mailed to the deceased, the mere fact that photographic exhibits of handwriting of defendant made by experts and forming part of the record on appeal were destroyed by the fire of April 18, 1906, without the fault of any person, cannot require this court to presume that the defendant did not have a fair trial, or to reverse the judgment based on the verdict of the jury which heard all of the testimony and saw the exhibits of handwriting presented by the expert witnesses.</p> <p>Id.—Death Caused Here in Another State—Jurisdiction—Procedure—Law op Case.—The decision on the former appeal that the courts of this state have jurisdiction of the crime committed therein of mailing poisoned candy to another state with intent to commit murder in another state, and thereby causing the intended death of the person, to whom it was therein addressed, and that “the defendant, having committed a murder in part in the state of California, is punishable under the laws of this state, exactly in the same way, in the same courts, and under the same procedure, as if the crime was committed entirely within the state, ’ ’ is the law of the case upon this appeal.</p> <p>Id.—Constitutional Law—Trial by Jury.—The defendant was not deprived of the right of trial by jury secured to her by sections 7 and 13 of article I of the constitution of this state.</p> <p>Ib.—Federal Constitution not Violated.—The defendant was not deprived of any rights under article III of the federal constitution or under articles V and VI of the amendments thereto, which refer only to powers exercised under the federal government, and not under the states. Nor is section 27 of the Penal Code of this state, allowing a crime to be punished therein when part of the acts constituting it are committed within this state, in violation of section 2 of article IV or of section 1 of article XIV of the amendments to the constitution of the United States or of any other provision of that constitution.</p> <p>Id.—Proof of Motive—Illicit Relations of Defendant with Husband of Deceased—Avowed Intention to Return to Family.— Evidence was admissible, upon the question of motive, to show that the husband of the deceased had lived with the defendant in illicit relations; that he left San Francisco as a war correspondent for the scene of the Spanish-American war with the avowed intention of returning to live with his wife and family when the war was over; that the defendant corresponded with him after his departure, and after the death of his wife from the poisoned candy used expressions indicating she hoped that she and he might yet come together and be married.</p> <p>Id.—Circumstantial Evidence of Crime—Evidence of Motive Important.—Where the evidence connecting the defendant with the killing of the wife of her friend was circumstantial only, it was most important for the prosecution to show that defendant had a motive for desiring her death, and the evidence admitted tended to prove the existence of such motive, and its admission is amply sustained by authority.</p> <p>Id.—Evidence—Arsenical Poisoning.—Evidence was admissible to show that the deceased died from arsenical poisoning, and that all who partook of the poisoned candy showed symptoms of arsenical poisoning, which tended to prove that the candy contained arsenic.</p> <p>Id.—Declaration of Deceased.—It was not prejudicial error to admit a declaration of the deceased of a negative character, that she had no thought who sent the candy received. Her declaration to her physician as to her symptoms were properly admitted.</p> <p>Id.—Place of Obtaining Candy Mailed—Evidence as to Identity— Uncertainty.—When the evidence tended strongly to show that the candy mailed was obtained from the store of Haas & Son, San Francisco, evidence of one of their employees was admissible to prove that defendant reminded her of a person to whom she sold candy at that store on a Sunday afternoon last preceding the date on which the candy was mailed, and that she believed her to be the same person, though not sure. Any uncertainty in such testimony goes only to its weight, and not to its admissibility.</p> <p>Id.—Testimony Negativing Poison by Candy Makers.—Since the evidence showed that the candy mailed and received was strongly impregnated with arsenic, the testimony of the candy-makers at the factory of Haas & Son was admissible to show that no arsenic or other poison was used in making the same at that factory.</p> <p>Id.—Proof of Examples of Handwriting.—Evidence of an admission made on the first trial that examples of handwriting of the defendant used in the second trial were correct, was admissible, though not conclusive; but such evidence was confirmed by the testimony of the defendant on the second trial that they were in her handwriting.</p> <p>Id.—Sufficiency of Evidence to Support Verdict.—Held, that the evidence, though circumstantial, is very convincing as to the guilt of the defendant, and quite sufficient to justify the verdict.</p> <p>Id.—Misconduct of District Attorney—Correction by Court.—Held, that there was no misconduct of the district attorney justifying a reversal, it appearing that the jury was immediately and properly instructed by the court to disregard any objectionable remarks made by the district attorney.</p> <p>Id.—Instruction—Duty of Jury to Deceive Law from Court—Emphasis.-—A remark made at the conclusion of an instruction that the jury must determine all questions ■ of fact, but must receive the law from the court, that “if you do so, no harm can come from my errors, if I commit any, for a supreme court sits to correct them, and the jury should not assume to exercise the functions of that tribunal,” only emphasizes the duty of the jury to be governed by the instructions of the court, and is not erroneous.</p> <p>Id.—Limiting Evidence to Question of Motive.—The court properly limited the effect of the evidence as to relations existing between defendant and the husband of the deceased by its instruction to the jury to consider it only on the question of motive.</p> <p>Id,—Malicious and Guilty Intent—Conclusive Presumption.—The court properly instructed the jury that a malicious and guilty intent is conclusively presumed from the deliberate commission of an unlawful act for the purpose of injuring another.</p> <p>Id.—Effect of Evidence—Number of Witnesses—Amplification of Code Instruction.—The court did not err after giving the instruction as to the effect of evidence and number of witnesses, embodied in subdivision 2 of section 2061 of the Code of Civil Procedure, in further explaining and amplifying it by saying: "In other words, it is not the greater number of witnesses that should control you where their testimony is not satisfactory to your minds, against a less number whose testimony does satisfy your minds, and produces moral conviction that they are telling the truth. It is upon the quality of the testimony rather than the quantity or the number of witnesses, that you should act, providing it produces in your minds this moral conviction, and satisfies you of its truthfulness.”</p> <p>Id.—Reasonable Doubt.—Where the court gave the well-known charge from the Webster ease upon reasonable doubt, the court did not err in stating that that term does not mean a “mere possible doubt, a conjectural doubt,” nor “a doubt which is merely capricious.”</p> <p>Id.—Presumption op Innocence.—An instruction as to the presumption of innocence, in substantially the same language as that approved by the supreme court, in so far as not taken from an instruction requested by the defendant, cannot be deemed erroneous.</p> <p>Id.—Instruction as to Weight op Testimony.—The charge of the court that in considering the weight and effect to be given to the testimony of witnesses, the jurors have the right, among other things, “to consider the consequences resulting to a witness, if any, from the result of the trial,” is not open to the criticism that it singles out the defendant. The language was general, and the application was left to the jury.</p> <p>Id.—Requested Instruction ' as to Absence op Motive—Instruction as to Presence op Motive.—Where a requested instruction was given on the supposition of the absence of motive, the court, in view of the evidence, also properly instructed the jury on the supposition of the presence of motive, and properly stated that the presence or absence of motive increases or diminishes the presumption of innocence, and can have no other function.</p> <p>Id.—Instruction as to Circumstantial Evidence.—Held, that the instruction on the subject of circumstantial evidence was not argumentative.</p> <p>Id.—General Instructions.—Held, that there is nothing to criticise in general instructions intended to guard the jury against being moved with pity for the defendant or by prejudice or passion on account of the nature of the offense with which she was charged, and to impress upon them the serious nature of the duties they were called upon to perform.</p>

<p>Appeals—Certiorari—Mandamus—Personal Eights or Employment Agent—Abatement by Death—Dismissal Against Administrator.—Appeals by an employment agent in a certiorari case to annul an order of police commissioners revoking his license, and in a mandamus case to compel the issuance to him of a new license, involve simply his personal rights and privileges, which are not assignable, and upon the death of the appellant pending the appeals, the actions involved abate without right of revivor in his personal representative, and the appeals must be dismissed, as against him, as presenting mere abstract questions of no practical benefit to anyone.</p>

<p>Criminal Law—Perjury—Order Setting Aside Information—Appeal—Sufficiency of Complaint—Positive Averment—Presumption.—Upon appeal from an order setting aside an information for perjury in an oath to secure registration in 1908, that the defendant was born in San Francisco, when in truth he was born in England, it appearing that one of the grounds of the order was the insufficiency of the complaint, which purports to charge the perjury in positive terms, though it is claimed by defendant that the complainant was too young to know the place of defendant’s birth, and must have stated that fact upon information and belief; yet, as his age does not appear in the record, it must be presumed that the complainant spoke from personal knowledge; and the question whether a complaint charging perjury upon information and belief, without other support, is insufficient in law, is not before this court for review.</p> <p>Id.—Insufficiency of Evidence to Warrant Commitment—Probable Cause Sufficient—Conflicting Affidavits for Registration.— When the only remaining ground for the order setting aside the information was insufficiency of the evidence to sustain the commitment, that ground is not tenable in support of the order, it being sufficient that probable cause appears for the commitment; and when conflicting affidavits for registration made in 1906 and 1908 were before the magistrate, in the first of which defendant swore that he was born in England, and was naturalized in San Francisco, and in the latter swore that he was born in San Francisco, the magistrate had probable cause to hold the defendant to answer for perjury in the latter affidavit.</p>

<p>Criminal Law—Bobbery—Sentence Under Plea of Guilty—Motion to Avoid Judgment for Duress.—When it is claimed that a judgment, under a charge of robbery upon a plea of guilty, should be avoided on the ground that the plea of guilty was obtained by duress, the proper procedure is by motion supported by documentary or oral evidence or both. A confession of guilt obtained by duress is void, and cannot be the basis for a valid judgment.</p> <p>Id.—Order Denying Motion—Appeal.—An order denying such motion is appealable, as being an “order made after judgment affecting the substantial rights of the defendant,” within section 1237 of the Penal Code.</p> <p>Id.—Affirmance of Order—Voluntary Plea.—Held, that the order should be affirmed on the ground that the evidence justified the court in believing that the plea of guilty was entirely voluntary, and that there was no support for defendant’s claim of duress or coercion.</p>

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

<p>Chattel Mortgage—Foreclosure—Sufficiency of Description Between Parties.—As between the parties to a chattel mortgage sought to be foreclosed, it is only necessary that the description of the chattels therein shall be sufficient to identify them with a reasonable degree of certainty as subject to the lien thereof; and a description of the mortgaged chattels as “All the furniture, upholstery, carpets, draperies, chinaware, and other household goods of every kind,” contained in a specified building definitely described and located, is amply sufficient to identify them, where no rights of third parties are involved.</p> <p>Id,—Goods Located in Apartment House—Defense of Misrepresentation as to Profits—Evidence—Source of Payments Made.— Where the goods were located in an apartment house, and defendant undertook to assume the mortgage, and interposed a defense that plaintiff misrepresented the profits of the business, and claimed that it was conducted at a loss, and had testified to the income and expenses of the business, the court properly excluded evidence to show the sources of payments made on the note, as not tending to strengthen the defense.</p> <p>Id.—Rebuttal—Letter Showing Wish to Remain.—The court properly allowed evidence, in rebuttal of the defense, of part of a letter written to plaintiff by defendant, to the effect that, after being in possession of the apartment for nearly two months, she did not desire to give it up.</p> <p>Id.—Remainder of Letter not Relevant.—Where the remainder of the letter was not relevant to any issue in the case, the court properly rejected it.</p> <p>Id.—Ruling on Evidence Cured by Subsequent Proof.—The question whether the rejection of evidence was erroneous becomes immaterial when any error therein is cured by subsequent proof.</p> <p>Id.—Cost of Furniture—Books of Plaintiff.—Where there is no. allegation in the answer that there was any misrepresentation as to-the value of the furniture, its original cost is immaterial, and the defendant was not entitled to put in evidence the books of the plaintiff to show the original cost of the furniture.</p>

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

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

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

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

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

<p>Criminal Law—Murder—Aiding and Abetting—Erroneous Refusal of Instruction as to Manslaughter.—Upon the trial of a charge for murder, where there is no pretense that the defendant fired the fatal shot, and he is charged as principal on the theory that he aided and abetted the crime, and was a co-conspirator with the person who fired it, if the circumstances of the ease were such that it was prejudicial error to refuse a requested instruction as to manslaughter, as to the one who fired the shot, it was equally prejudicial error to refuse such instruction as to the defendant, who as aider and abettor can be guilty of no higher offense than the principal who committed the homicide.</p> <p>Id.—Evidence—Declarations as to Past Motive for Shooting Inadmissible.—The declarations of the party who fired the fatal shot as to the motive of the shooting made after the shooting was over and the crowd had dispersed, and which was but a -narrative concerning a past and completed act, were not admissible against the defendant as part of the res gestae, nor as having been made in pursuance of the conspiracy.</p>

<p>Criminal Law—Murder—Both Parties Armed—Refusal to Instruct as to Manslaughter—Prejudicial Error.—Upon a trial for murder, apparently growing out of labor troubles, it being proved that both parties were armed and that the defendant was wounded, but it is not shown with certainty who fired the fatal shot, and defendant was convicted of murder in the second degree, it was prejudicial error, requiring a reversal, to refuse to instruct the jury as to the law of manslaughter at defendant’s request.</p> <p>Id.—Manslaughter a Question for Jury—Duty of Court.—No matter how conflicting the evidence, if there is any evidence tending to show that the crime might be manslaughter, it is the duty of the court to submit the question to the jury for its decision.</p> <p>Id.—Quarrel—Killing Under Reasonable Belief of Imminent Danger.—When the accused embarks in a quarrel with no felonious intent or malice or premeditated purpose of doing bodily harm, and under a reasonable belief of imminent danger he inflicts a fatal wound, it is not murder, but may be manslaughter.</p> <p>lb.—Improper Cross-examination by District Attorney — False Statements by Persons not Witnesses.—The court erred in permitting the district attorney, in cross-examining a witness for the defense, to ask questions in order to put before the jury the fact that three persons, not witnesses at the trial, who were seen with the defendant and his associates upon the occasion of the homicide, falsely denied that they were present.</p> <p>Id.—Dying Declaration Inadmissible.—The court properly excluded the dying declaration by the deceased that he fired the first shot at the defendant, when there was no sufficient proof that he made it under a sense of impending death.</p> <p>Id.—Evidence Tending to Show Conspiracy—Associate Unloading Pistol While Departing.—Evidence was admissible as tending to show a conspiracy that one of the associates with defendant was seen immediately after the shooting running from the scene thereof with a pistol which he was unloading, thereby showing that it had been loaded at the place of the homicide.</p> <p>Id.—Declarations of Defendant.—Evidence was admissible to show a declaration by the defendant to the effect that the nonunion men were carrying revolvers, and that he was liable to use the one seen in his hand before night.</p> <p>Id.—Scattering of Associates After Shooting—Res Gestae.—Evidence was admissible to show that immediately after the shooting the crowd of persons associated with the defendant immediately scattered and ran away, as being part of the res gestae, since it was the natural and spontaneous outgrowth of the main occurrence.</p>

PETITION for writ of habeas corpus to the sheriff of Los Angeles County. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of the County of Alameda, and from orders denying a new trial and denying a motion in arrest of judgment. William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Merced County, refusing to change the place of trial of an action. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Sullivan & Sullivan, and Theo. J. Roche, for Appellants.</p>

<p>Vicious Animals—Bite of Minor by Vicious Dog—Ownership— Knowledge of Vicious Propensities—Support of Verdict.—In an action by a minor to recover damages for the bite of a vicious dog, negligently allowed to run at large by the owner with knowledge of its vicious propensities, held, against the contention of the defendant appealing to the contrary, that the evidence is sufficient to show his ownership of the dog at the time of the bite; and that he had previous knowledge of its vicious propensity to bite children, and that the verdict for the plaintiff was supported in both respects.</p> <p>Id.—Evidence of Ownership—Province of Jury—Gift—Subterfuge. Evidence was properly admitted that defendant appealing procured a collar for the dog with his initials engraved thereon, which was worn at the time of the bite, as tending to show his ownership at that time, to be considered in connection with other evidence that he was seen daily with it on the streets, had bought and paid for it, and was much attached to it; and the jury might properly consider from such evidence that he was the real owner of the dog at the ^time of the bite, and that an alleged gift thereof by him to the lady of the house in which he lived was a mere subterfuge to escape liability.</p> <p>Id.—Evidence of “Tricks” by Dog Properly Excluded.—Offered evidence for the purpose of showing the nature and kind of the tricks that could be performed by the dog as a “trick dog” was properly excluded, as not tending to justify its bite of the child.</p> <p>Id.—Refusal of Instruction as to Ownership of Dog by Persons Living Therewith.—There was no error in refusing a requested instruction that one who treats a dog as living at his house and undertakes to control its actions is the owner of the dog within the meaning of the law. Though such instruction might be given where one is charged as keeper of a vicious dog in full control, and is claiming otherwise, yet, when the owner also has control of the dog, and keeps it with knowledge of its vicious nature, he cannot escape liability on the theory that the dog lived with other defendants not appealing, and was sometimes seen with them or either of them.</p>

<p>Action for Accounting—Illegal Contract by Agent of Vendor for Half Interest with Purchaser not Enforceable.—In an action for an accounting of the net profits of a half interest in land held in defendant’s name and sold and converted to defendant’s use, in which it appears that the land was sold to such defendant by the trustees of an estate who had employed plaintiff as their agent to effect the sale and paid him a commission therefor, and that a secret written contract was made between the agent and purchaser, that the sale was for their joint benefit, and that the purchaser, after obtaining the deed, was to convey a half interest to the agent, who agreed to divide commissions with the purchaser-—held, that such contract is illegal and void as against public policy, and cannot be enforced by the agent against the purchaser.</p> <p>Id.—Findings Against Plaintiff—Agreement to Share Commissions. Where the findings were against the plaintiff, and included the agreement to share commissions, such agreement, being part of the illegal contract, cannot be eliminated from the findings on the ground that it has no probative force on the question of its validity. Every part of the contract is to be considered in determining that question.</p>

<p>PETITION for writ of prohibition to the Superior Court of Santa Clara County. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the Court.</p>

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

<p>State School Lands—Contest—Action by Second Applicant—Intervention by Successor of Prior Applicant—Issue as to Fraud— Default of Prior Applicant.—In a contest for state school lands, when a second applicant sues a prior applicant, alleging fraud in the prior application, and it appears that the prior applicant had paid for the land and acquired a certificate of purchase, and that all rights thereunder had passed by mesne conveyance to one who intervened by leave of the court, and took issue upon the alleged fraud, and set up his rights as successor in interest of the prior applicant, the entry of the default of the prior applicant cannot prejudice nor affect the rights of such successor, nor be deemed as an admission on the part of the latter of any fact alleged in the complaint.</p> <p>Id.—Burden op Proof as to Fraud—Presumption—Admitted Possession—Bight op Successor op Prior Applicant to Judgment. A prior application regular in form is prima facie prior in right to a second application; and when a second applicant, who claims no possession, assails such prior application for fraud in its procurement, and issue is joined thereupon by a successor in interest of the prior applicant, whose presumed rights are reinforced by the admitted possession of the land involved by himself and his predecessors for more than ten years, the burden of proof is upon the second applicant to overcome the presumption in favor of the rights existing under the prior application, and to establish the fraud alleged; otherwise such successor in interest was entitled to judgment.</p> <p>Id.—Erroneous Finding Without Prejudice.—An erroneous finding is without prejudice, when, without it, the judgment has ample support in the remaining findings.</p> <p>Id.—Motion to Dismiss Appeal—Time of Presenting Statement— Conflicting Evidence.—A motion to dismiss the appeal for failure to present the statement in time must be denied where the evidence is conflicting on that question. The conflict must be resolved in favor of the appellant, and of the action of the court below in settling the statement.</p>

<p>Negligence—Sale of Gasoline fob Coal-oil—Explosion—Destruction of Property—Responsibility of Grocer.—A grocer to whom plaintiff applied for a can of coal-oil, and who negligently delivered gasoline as coal-oil, which, being placed in lamps lighted without knowledge of the negligence, caused an explosion, which resulted in the destruction of plaintiff’s dwelling and personal property therein, is responsible for the resulting damage, if no contributory negligence appears on the part of the plaintiff.</p> <p>Id.—Contributory Negligence—Matter of Defense—Pleading— . Finding.—When contributory negligence does not appear upon the face of the complaint nor in the plaintiff’s evidence, it is matter of defense which must be pleaded and proved by the defendant, and if not pleaded in the answer, no finding is required thereupon.</p> <p>Id.—New Trial—Newly Discovered Evidence—Cumulative Proof— Discretion.—When a motion for a new trial is made on the ground of newly discovered evidence, which is merely cumulative, it is matter within the sound discretion of the trial court to determine whether it is of such a character as to render a different result probable; and its discretion will not be interfered with when no abuse thereof appears.</p>

<p>State School Lands—Application by Female—Bioht to “Purchase and Hold Beal Estate.”—An application for state school lands, sworn to by a female, which declares that she is “native born, a citizen of the United States, a resident of this state, of lawful age,” sufficiently shows “that she is entitled to -purchase and hold real estate in her own name,” to meet the requirement of section 3496 of the Political Code.</p> <p>Id.—Contest—Action by Subsequent Applicant—Presumptions— Burden op Proop.—When a certificate of purchase has been issued to a prior applicant upon an application not defective in form, all presumptions are in favor of its validity, as against a subsequent applicant, and when the subsequent applicant, in a contest of the prior application instituted by him, brings action, the burden is upon him to allege and prove facts showing its invalidity, else he must fail, and the prior applicant is entitled to judgment.</p> <p>Id.—Residence of Prior Applicant—Support of Finding—Affidavit not Overcome.—Held, that the evidence as to the residence of the prior applicant in the state of California at the time of the prior application is sufficiently proved to sustain a finding of that fact; and that the evidence for the subsequent applicant is not sufficient to overcome the sworn affidavit of the prior applicant as to her residence in the state at that time.</p> <p>Id.—Occupancy of Land—Support of Finding.—Held, that the court was justified in finding that there had been no occupation of the land by the plaintiff adversely to the defendant prior to defendant’s application.</p> <p>Id.—Purchase of Land for Benefit of Prior Applicant—Benefit to Husband.—Where the land was purchased for the benefit of the prior applicant, without any intention to sell the same to anyone, the fact that she intended, after obtaining title, to allow her husband to pasture his sheep on the land does not disclose any intention to violate the law.</p>

<p>Appeal—Error Without Prejudice.—A judgment will not be reversed upon appeal, on a new trial granted, for a mere error, when it clearly appears that the appellant has suffered no injury therefrom.</p> <p>Claim and Delivery—Alternative Judgment—Less Damages in Case of Impossible Delivery—Appellant not Injured.—In an action of claim and delivery, when the jury awards the possession of the property to the plaintiff with a large amount as damages if redelivery can be had, and a less sum as damages, together with the fixed value of the property, in case redelivery thereof cannot be had, the less damages in the latter alternative is not injurious, but beneficial to the appellant, and is not ground for reversal.</p> <p>Id.—Lease of Property Claimed—Termination—Damages—Rentals Unpaid with Interest—Error—Modification of Judgment.— When the claim and delivery is for personal property leased, after termination of the lease, the measure of damages is the amount of the unpaid rentals, with interest upon each to the commencement of the action; and it was error to allow any rentals falling due after suit brought to the date of judgment. But when the date from which the unpaid rentals commenced is fixed by the jury, and they were payable at a fixed monthly rate, the amount due at the commencement of the action may be exactly calculated; and the judgment may be modified without necessity of a reversal for the error.</p> <p>Id.—Lease with Option to Purchase—Conclusiveness of Verdict Against Purchase Alleged.—An option to purchase the leased property at a fixed price within sixty days having been given to the lessee, with a fixed rental to continue if said option is not exercised, with the right to reclaim the property with rental to the time of reclaiming it, and the answer pleaded a purchase, the verdiet of the jury, upon conflicting evidence against the defendant in claim and delivery, is conclusive that no purchase was made.</p> <p>Id.—Application of Payment—Option not Exercised—Bills of Plaintiff for Other Demands.—It being established that the defendant never in fact exercised the option to purchase at the price fixed in the lease, he cannot claim the application of a payment made by him of a less sum upon the purchase of the property leased; but the payment is sufficiently accounted for by a receipt given for the same sum by the plaintiff to the defendant on bills for other demands presented by plaintiff to defendant before the money was paid.</p>

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

<p>Action Against Real Estate Broker to Recover Commissions—Statute of Frauds—Insufficient Complaint.—Conceding that a real estate broker authorized in writing to effect a sale of real estate may make an oral contract to pay a commission to another broker, who finally secured a purchaser thereof, yet a complaint to recover under said oral contract with defendant, which does not aver that the defendant was authorized in writing by the owner to effect a sale of the property, states no cause of action, and a general demurrer thereto was properly sustained.</p> <p>Id.—Construction of Statute of Frauds—Employment by Persons not Owners.—The provision in section 1624 of the Civil Code that “an agreement authorizing or employing an agent or broker to purchase or sell real estate for a compensation or a commission ” is “invalid, unless the same or some note or memorandum thereof is is in writing and subscribed by the party to be charged,” while designed to protect owners of real estate against unfounded claims of brokers, is nevertheless equally applicable to any contract whereby one, whether an owner or not, employs another to effect a sale of real estate and agrees unconditionally to pay a stipulated sum for the performance of such services.</p>

<p>The facts are stated in the opinion of the court in this case, and in Civ. No. 533, post.</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>APPEAL from a judgment of the Superior Court of Orange County denying a peremptory writ of prohibition, and discharging an alternative writ. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Lloyd S. Ackerman, Stratton & Kaufman, Finch & Melsted, and Devoto & Richardson, for Appellants.</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. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. W. Camp, A. H. Van Cott, and U. T. Clotfelter, for Appellant.</p>

<p>APPEAL from an order of the Superior Court of Sacramento County, settling the final account of an executor. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Mortgage in Executor’s Name—Assignment to Estate—Loss on Foreclosure—Conclusive Settlement of Accounts.—When an original note and mortgage taken in the executor’s name without authority was reported by the executor to the court, and adjudged to be for the best interest of the estate, and was assigned thereto, and was foreclosed in the name of the estate with some loss, the settlement made thereof in the annual accounts of the executor is conclusive, and cannot be assailed in settlement of his final account.</p> <p>Id.—"Value of Land—Immaterial on Final Account.—The loss on the sale of the land and the present value of the land at the time of the settlement of the final account are immaterial. No deterioration in value can affect the adjudication in the settlement of the annual accounts.</p> <p>In—Attorney’s Fees—Discretion of Court.—The allowance made to the attorney for the administrators on settlement of the final account of the executor, in view of previous allowances, and of all the facts connected with the administration of the estate, was largely in the discretion of the trial court sitting in probate, who was in a position justly to measure the value of the attorney’s services, and its discretion will not be interfered with when no plain and palpable abuse of its discretion appears from the record upon appeal.</p>

<p>Negligence—Wrongful Assault upon Passenger—Fall from Moving Street-oar—Support of Verdict for Plaintiff.—In an action against a street railway company to recover for injuries sustained through its negligence from the wrongful act of the conductor of one of its ears, in assaulting the plaintiff and causing his fall from one of its ears while in motion for nonpayment of fare, to plaintiff’s serious and permanent injury, held, that the verdict for the plaintiff was sufficiently supported by his testimony, notwithstanding conflicting evidence to the contrary.</p> <p>Id.—Probability of Plaintiff’s Testimony—Matter for Jury.—The probability of plaintiff’s testimony as to the manner of the injury was matter for the jury, there being nothing inherently unbelieveable in his testimony.</p> <p>Id.—Nonpayment of Fare Demanded—Bights of Conductor—Belation of Carrier and Passenger.—Notwithstanding the plaintiff had refused to pay the fare demanded, giving certain reasons therefor, and though the conductor, upon the facts, had the right to eject him in a reasonable manner for nonpayment of fare, he had no right to assault him and to cause his fall from the moving car. The relation of carrier and passenger still subsisted between the carrier and plaintiff, so far as the nature of the treatment due him from the defendant and his agents was concerned.</p> <p>Id.—Liability of Defendant.—If the conductor caught hold of the plaintiff in the manner testified to by plaintiff, and continued thus to hold him until the plaintiff fell or was thrown to the ground from the moving car, the act of the conductor involved an assault for which the defendant could be held liable for the resulting injury to the plaintiff.</p> <p>Id.—Bight of Defense Against Assault.—If the trouble originated and occurred as described by plaintiff, he was justified in defending himself against the assault of the conductor.</p> <p>Id.—Contributory Negligence of Plaintiff—Question for Jury.— Where there is nothing in the plaintiff’s testimony from which the jury would necessarily have been justified in finding that he was guilty of contributory negligence, that question is one peculiarly for the jury to determine.</p> <p>Id.—Failure of Plaintiff to Exercise Best Judgment.—Even if it subsequently appeared that plaintiff did not exercise the best judgment in the manner of resisting the conductor’s assault, yet that fact cannot constitute negligence on Ms part. If he became perturbed and confused.by the improper treatment received, the responsibility for any want of discretion on his part must fall upon defendant by whose negligence it was caused.</p> <p>Id.—Refusal of Requested Instructions.—The court properly refused instructions requested by the defendant when substantially included in the charge of the court, wMch fully and fairly stated the law of the case to the jury. The court also properly refused requested instructions containing statements not authorized by the evidence.</p>

<p>Costs—Order for Retaxing—Appeal.—An appeal lies from an order made after final judgment retaxing costs without reference to the amount involved.</p> <p>Id.—Attendance of Expert Witness.—Where an expert witness was not called by the court nor by agreement of the parties, but was in attendance merely as a witness for the prevailing party, he can only be allowed the usual fees for attendance and not for his services as an expert.</p> <p>Id.—Improper Allowances—Fees Refused—Filins Cost Bill.—The fees of witnesses who refused to receive the same cannot be allowed as costs; nor can any charge be made in the cost bill for filing the same.</p> <p>Id.—Proper Charges for Witnesses not Subpoenaed.—Proper charges may be made in the cost bill for the attendance of witnesses who attended at request of the prevailing party, though not served with a subpoena. When a witness has been called and sworn upon attendance by request, he has placed himself under and subject to the order of the court as much as if subpoenaed.</p> <p>Ib.—Statutory Construction—“Legally Required to Attend.”— The words “legally required to attend,” used in the act of 1891 in regard to witness fees, are not to be construed as importing more than that the witnesses attending must have been legally requested to attend, so as to make the fees paid for their attendance a legal disbursement.</p> <p>Id.—Office of Subpoena Subserved by Request—Legal Responsibility.—Though a subpoena legally requires the attendance of a witness who is unwilling to attend, its office is subserved when the witness attends by request, and the party requesting the attendance of a witness is as legally responsible to pay his statutory fees for attendance as if he had been subpoenaed.</p>

<p>Negligence—Injury from Fall of Scaffold—Pleading—Uncertainty—Puling on Demurrer not Prejudicial.—When the complaint in an action to recover damages for injuries caused to plaintiff from the alleged negligence of the defendant while assisting plaintiff in the erection of a scaffold for plaintiff’s use as painter of a building, occasioning his fall therefrom, shows clearly that defendant is sued as an individual, and alleges circumstances of the injury with sufficient definiteness and certainty to show prima fade that defendant alone was responsible for the injury, the overruling of a demurrer thereto for ambiguity and uncertainty by reason of an unnecessary and superfluous averment that defendant was a stockholder and president of the corporation that had engaged plaintiff to paint its house, which does not charge the company with any responsibility, is nonprejudicial, and cannot constitute ground for reversal, if it is not shown that defendant was misled, and the action was fairly tried upon the merits upon issues joined by him.</p> <p>Id.—Sufficiency of Evidence to Support Verdict.—Held, upon a review of the evidence, that the question of the defendant’s negligence was fairly before the jury, and the evidence was sufficient to support its verdict for the plaintiff on that question.</p> <p>Id.—Consistency of Special and General Verdict—Unproved Items —Modification of Judgment.—Held, that the special verdict was consistent with the general verdict, but that certain small items of damages allowed by the jury were unsupported by the evidence, and the judgment should be modified accordingly.</p> <p>Id.—Requested Issues Involved in Issues Submitted.—The court did not err in refusing to submit special issues which were either immaterial, or were involved in the issues submitted to the jury. Where the same issue or question of fact is involved in another special issue or question of fact, the court may refuse to submit a special issue which is but a repetition, in form or substance, of the one given.</p> <p>Id.—Retaxation of Cost Bill Prior to Judgment—Review upon Appeal.—When a cost bill filed at the time of the verdict was retaxed before judgment, and the amount allowed was included in the judgment, the order retaxing the costs may be reviewed, upon appeal from the judgment, upon a bill of exceptions.</p> <p>Id.—Improper Items of Costs—Board of Jury During Deliberation— Traveling Expenses of Reporter.—There is no authority given in section 274 of the Code of Civil Procedure for an allowance as costs of the board of a jury during their deliberation upon their verdict, nor for the traveling expenses of a reporter obtained from another county, there being no regular court reporter in the county of the venue by appointment or otherwise.</p>

<p>Resulting Trust—Payment of Part of Consideration—Trust Pro Tanto.—In this state a resulting trust in real property does not depend upon the fact that the one who seeks to establish it has paid the entire consideration, nor that what he may have contributed was for an aliquot part of the estate. If one party pays any part of the consideration, the party taking the title to the whole land becomes a trustee for the other party pro tanto, for a proportional interest in the land.</p> <p>Id.—Oral Agreement Immaterial—Trust by Operation of Law— Terms of Holding.—An oral agreement cannot constitute an express trust; and the fact that the parties have agreed verbally to do that which the law implies from their acts, and to hold according to the amount of money paid by each, is immaterial, and cannot affect the character of the transaction as a trust created by operation of law. The portion of interest which each is to hold results, not from any agreement, but from the facts shown as to the amount of purchase money advanced by each.</p> <p>Id.—Mortgage for Part Purchase Price—Interest of Defendant not Enlarged.—The fact that $1,500 of the entire purchase price was obtained by giving a mortgage therefor by the defendant who took the title cannot enlarge defendant’s interest in the property. The effect of such mortgage is the same as if the purchase had been made subject to an existing mortgage, in which case, as between themselves, each party's interest would be subject to his proportionate share thereof, and their respective interest in the property correspondingly lessened.</p> <p>Id.—Evidence—Attorney and Client—Consultation by Both Parties for Negotiations of Loans for Plaintiff—Communications not Privileged.—When an attorney conducting litigation for defendant was consulted both by plaintiff and defendant, for the purpose of having the attorney negotiate a loan for plaintiff of $600, to be paid on the purchase money of the property here involved, the communications to the attorney on that subject were not privileged, and the testimony of the attorney thereto was admissible for plaintiff.</p> <p>Id.—Sufficiency of Evidence to Support Findings—Payment by Plaintiff Before Delivery of Deed.—Held, that evidence, notwithstanding a substantial conflict therein, is sufficient to support the findings for the plaintiff, and to show that the money was paid by plaintiff before the delivery of the deed to the defendant and was used in effecting the purchase.</p> <p>Id.—Propriety ot Judgment.—The judgment establishing plaintiff’s interest and directing a transfer thereof to plaintiff, subject to a lien in favor of defendant for a portion of taxes advanced for plaintiff’s benefit, and to a three-tenths share of the existing mortgage of $1,500 on the property, was proper, in adjustment of all matters as between the parties, without affecting the lien of the mortgage in favor of the mortgagees as against both parties.</p>

<p>Action fob Broker’s Commission—Issues—Existence of Time Limit—Single Specification—Implied Bindings not Reviewed.— In an action to recover a broker’s commission upon the sale of real estate for finding one ready and willing to purchase, in which defendant pleaded the statute of frauds, and that there was a time limit of sixty days and that the purchaser was not found within that limit, but the action was tried upon the theory that the existence or nonexistence of the time limit was determinative of the case, and the only specification of insufficiency of the evidence to justify the verdict for the plaintiff was as to the finding that there was no time limit, that is the only finding implied by the verdict which will be reviewed upon appeal.</p> <p>Id.—Sufficiency of Evidence to Support Verdict Against Time Limit —Conflict—Number of Witnesses—Conclusiveness of Verdict. Held, that when the evidence adduced upon the trial was conflicting upon the question as to the existence of a time limit, and the evidence for the plaintiff is sufficient to support the verdict for the plaintiff that there was no time limit, it is immaterial that a preponderance in number of witnesses for defendant testified to the contrary. The credibility of the witnesses was to be determined by the jury, which was not required to find according to the number of witnesses, and its verdict is conclusive upon appeal.</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. George H. Hutton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Sale—Title op State—Disposition by State—Sale by Tax Collector—Payment by Purchaser—Loss op Redemption Prior to Deed.—The right of the previous owner, under section 3817 of the Political Code, to redeem property sold to the state for delinquent taxes, is lost when the property has been sold by the tax collector upon direction of the controller, and after due notice to a purchaser who has paid the purchase money to the county treasurer before any attempted redemption was made. The land is disposed of by such sale and payment, though no deed had passed to the purchaser prior to the attempted redemption. The deed was not necessary to complete the sale of the state’s title.</p> <p>Id.—Completion op Sale at Public Auction.—A sale at public auction is complete when the auctioneer publicly announces, in any customary manner, that the thing is sold. The purchaser’s bid is then accepted, and the bidder cannot withdraw it, but must pay the purchase money.</p> <p>Id.—Sale on Legal Holiday not Void.—A sale made by the tax collector on a legal holiday is not void, in the absence of a statutory prohibition against it, and if otherwise made according to law is effectual to dispose of the state’s title to one who pays the purchase money.</p> <p>Id.—Mandamus not Permissible to Compel Estimate for Redemption.-—The right of redemption having been lost by disposition of the state’s right by a sale entitling the purchaser to a deed from the state, mandamus will not lie to compel an estimate for redemption from the county auditor, either on the ground that the sale was made on a holiday, or on the ground that the deed had not passed for the state.</p>

<p>Accident Insurance — Elevator Accidents — Notices Required— Rights of Insurance Company—Costs of Defense not Recoverable.—When a policy of accident insurance given to the owners of an elevator, insuring them against liability for accidents in its operation to persons injured thereby, by its terms required immediate written notice of any accident from which a claim may arise, and further notice of any action by any claimant for injuries sustained, and gave the insurance company the right to settle any claim, and to defend at its own costs any action to enforce the same, the insured owners cannot, in the absence of such notices, recover from the insurance company the costs of defending any action brought against them to recover damages.</p> <p>Id.—Immediate Written Notice of Accident Essential.—The very moment when an accident occurred in the operation of an elevator, by which injuries were inflicted upon a passenger, the event had taken place which made immediate written notice of the accident to the accident insurance company essential. The parties had the right to stipulate for such notice, and the insurance company had the right to rely thereupon, and to seek an immediate settlement of the claim for injuries sustained.</p> <p>Id.—Two Notices Essential, When Suit is Delayed.—When suit is not immediately brought upon the claims, there must, in addition to the written notice of the accident, be a second notice immediately given of the commencement of the action, which is not by the terms of the policy required to be in writing. The written notice of a suit brought nine months after the accident cannot constitute or dispense with the requirement of immediate written notice of the accident.</p> <p>Id.—Oral Notice of Accident—Absence of Objection to Writing— Waiver not Pleaded—Evidence Inadmissible.—When the plaintiffs rely upon an immediate oral notice of the accident, and the absence of any objection that the notice was not in writing as constituting a waiver of written notice, he must have pleaded such waiver, and when plaintiffs neither pleaded the waiver nor asked leave to amend by pleading the same, evidence thereof was inadmissible under the pleadings.</p> <p>Id.—Waiver not Proved—Oral Notice by Insurance Agent.—When the only oral notice of the accident given to the insurance company consisted of a voluntary statement made thereto by their own agent who effected for them the accident insurance, without in any manner representing the insured owners of the elevator, as their agent, in making the statement, the same cannot constitute, nor evidence any waiver of the written notice of the accident by them.</p> <p>Id.—Nature op Waiver—Burden op Proof not Sustained.—A waiver in law is the intentional relinquishment of a known right; and the burden is upon the party relying thereupon to prove such waiver by evidence which does not leave the matter doubtful or uncertain. Seld, that the evidence does not show any condition of facts inconsistent with the right or intention of the defendant to claim the written notice required by the terms of the policy from the plaintiffs.</p>

<p>Libel—False Charges Against Public Officer Actionable Per SE— Want of Integrity—Corruption in Office—Obloquy.—Publications concerning the plaintiff as a public officer, imputing to him a want of integrity or corruption in his official duties, if false in. fact and exposing him to hatred, contempt and obloquy, are actionable per se.</p> <p>Id.—Privileged Communication—Question of Law.—When the facts and circumstances attending the publication are undisputed, it is a question of law for the court whether it was privileged or not; and its conclusion of law on that subject loses none of its force by being incorporated in the findings of fact.</p> <p>Id.—Good Faith of -False Publication Immaterial.—The fact that the publications were actually made with good intentions, and for justifiable ends, without malice, does not render the same privileged, if false in fact.</p> <p>Id.—Charge of Misconduct Against Candidate for Public Office— Justification.—A charge of misconduct against a public officer who is a candidate for re-election can only be justified by proving its truth. Injurious falsehoods may not be published without liability therefor.</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>The facts are stated in the opinion of the court. Further facts are stated in the previous decisions therein referred to.</p>

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

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

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

<p>Specific Performance—Contract to Sell Land—Time of Essence— Waiver of Default and of Time Clause—Tender Kept Good— Support of Findings.—Held, that specific performance of a contract for the sale of land was properly enforced—notwithstanding the contract made time of its essence, and provided for forfeiture of all payments made, if it was not strictly complied with, and default was actually made in monthly installments to be completed in three years—when it appears that the contract gave an option to buy other lots at a fixed price any time within the three years, and there was sufficient evidence to sustain findings that there was an express waiver of the default and of the time clause by oral agreement that it would be sufficient if all payments were completed within the three years, and that payments were accepted after default, and that all payments were tendered, and the tender kept good, within the time limited.</p> <p>Id.—Belief in Favos of Vendee in Default—Equitable Showing.— Equity will often permit a vendee in default to excuse Ms breach as to the time of payment, and after excuse made compel the vendor to perform, provided he shows equitable grounds for relief.</p> <p>Id.—Estoppel of Vendos to Declass Forfeiture—Delay Caused by Him.—In view of the decision of the court that plaintiff’s evidence was true, the defendant should not be permitted to lull the plaintiff into security by telling him he need not comply promptly with the time clause of the contract, and then take advantage of the delay occasioned by Ms own act to declare a forfeiture.</p> <p>Id.—Performance After Notice Withdrawing Privilege—Seasonable Time to Pay Arrearages—Province of Trial Court.— When, after notice by the defendant of the withdrawal of the privilege of paying at any time within three years, it appears that plaintiff made no further default in payment of any installment of principal, interest or taxes, the fact that all arrearages were not paid in full until ten days after such notice does not establish that they were not made within a reasonable time. The question of reasonable time for such payment is to be determined by the trial court in view of the circumstances of the case, and its determination that it was made witMn a reasonable time will not be disturbed upon appeal.</p> <p>Id.—Possession of Plaintiff—Immaterial Finding.—The finding that the plaintiff was in the possession of the property is immaterial to the judgment, and it is necessary to determine whether it is or is not supported by the evidence. Plaintiff was entitled to enforce the contract, whether in possession or not.</p> <p>Id.—Bight of Possession.—An executory contract of sale confers no right of possession; but the right of possession follows only from the execution of the decree of specific performance.</p> <p>Id.—Option to Purchase—Contract to Make Contract upon Conditions.—The option to purchase included in the contract to purchase was not without consideration. A contract to make a contract upon conditions is valid and enforceable.</p> <p>Id.—Option Part Consideration of Contract of Purchase.—The option to purchase two other lots included in the contract actually to purchase two lots is part of the consideration for such purchase. TMs expressly appears from evidence showing that the lots for which the option was given were necessary for plaintiff’s proper use of the lots contracted for, and for that reason were inserted in the contract.</p> <p>Id.—Waiver of Forfeiture—Effect upon Contract.—The waiver of forfeiture was not limited merely to the lots purchased, but goes to the entire contract, including the lots upon wMch the option was given.</p> <p>Id.—Pabol Evidence to Show Watveb.—Parol evidence was admissible to show the waiver of default and of the time clause of the contract.</p>

<p>Trial—Change of Judge—Disqualification for Bias and Prejudice— Power of Judge—Discretion.—When a change of a judge about to try a case is asked for on the ground that he is biased and prejudiced against the defendant, the judge has power to pass upon' the question of Ms own disqualification; and if no abuse of discretion appears in holding Mmself not disqualified on that ground, Ms determination will not be interfered with.</p> <p>Id.—Honesty and Reasonableness of Showing—Ends of Justice.— When the facts established by the affidavits are such as to create in the mind of an honest litigant a sincere belief that he cannot have a fair and impartial trial before the judge of the court in wMeh the action is pending, and such as to justify a reasonable man in such belief, the ends of justice would be subserved by calling in another judge.</p> <p>Id.—Duty of Judge.—The judge should not only be honest and impartial, but his acts and conduct should be such that there can be no foundation for questioning his motives; but it is also his duty carefully to scrutinize such case, to the end that the law may not be abused for sinister purposes. If he is convinced from the facts of the . integrity of his own conduct and motives, and of his sole desire to see the law applied with equal and exact justice to all, and that the object of the party alleging the disqualification is to thwart justice, or to get the case before another judge of his own choosing, he should have the courage to act accordingly.</p> <p>Id.—Facts not Showing Bias or Prejudice Against Defendant Personally.—Where the facts stated in the affidavits are not sufficient to show bias or prejudice against the defendant personally, they are insufficient.</p> <p>Id.—Imposition of Fine in Former Case.—The imposition of a fine upon the defendant upon trouble arising in court in a former case, whether the court erred therein or not, does not establish bias or prejudice against him in the present case. The judge should know neither friend nor foe, and should not flinch from duty.</p> <p>Id.—Judge Indebted to Bank—Interest and Position of Plaintiff— Disqualification—Presumption.—The fact that the trial judge was indebted to a savings bank in which the plaintiff was a stockholder and one of the directors is not a legal disqualification, nor can it be said that it establishes bias and prejudice as matter of law. It must be presumed that the trial judge is honest and solvent.</p> <p>Id.—Motion to Change Venue After Denial of Motion to Change Judge—Speedy Decision—Denial of Continuance—Desertion of Counsel—Trial—Discretion.—When, after denial of defendant's motion to call in another judge, defendant’s counsel moved to change the venue, which was speedily decided, and the court denied a continuance of the trial, whereupon defendant’s counsel deserted the courtroom, and the court summoned the defendant and allowed him time to procure other counsel, which he failed to do, the court did not abuse its discretion in proceeding with the trial, and after giving the defendant opportunity to introduce evidence, and upon his statement that he had none, in ordering the ease submitted.</p>

<p>Corporations—Assessment on Paid-up Stock—Personal Action.— Under the statutes of this state an assessment may be levied upon the paid-up stock of a corporation to meet its liabilities and current expenses within the limit allowed therefor, and such assessment, when valid and delinquent, and the remedy by sale is subsisting, may be enforced by personal action.</p> <p>Id.—Absence of Implied Power—Statute Part op Stockholder’s Contract—Mode to be Strictly Pursued.—Corporations have no implied power to levy assessments upon paid-up stock. The power must depend upon the statute in force when the stock was issued, which becomes part of the stockholder’s contract with the corporation, subject to the rule that when power is given by statute, the mode provided must be strictly pursued.</p> <p>Id.—Limitations of Power—Amount of Levy—Identical Procedure. The sections providing limitations of power in the levy of assessments upon stock indicate that, except in respect to the amount that may be levied, there is no distinction between an assessment upon unpaid stock and one upon fully paid-up stock. The procedure for levying and collecting the assessment and for sale of delinquent stock, is the same, whether it be a “call” for subscription or an assessment on paid-up stock, to pay debts and expenses.</p> <p>Id.—Mining Corporations Subject to Same Rules.—There is nothing in the Civil Code which takes mining corporations out of the same rules which apply to assessments upon the stock of corporations in general.</p> <p>Id.—Waiver of Sale—Time of Waiver—Election of Remedy by Action.—The corporation, though it cannot waive a right which is lost, may waive a sale and elect to proceed by action, if the proceeding to sell is alive and going when the election was made, and the stock was delinquent at the time of the election to sue.</p> <p>Id.—Resolution Vacating Invalid Notice—Publication and Service of New Notice—Construction of Pleading.—When, owing to an invalid first notice of assessment, the directors of the corporation vacated all proceedings subsequent to the assessment, and passed a resolution for a new notice, fixing new dates for delinquency and sale, and the complaint, in an action upon the delinquent assessment, alleged service of such new notice by publishing the same “upon making the resolution aforesaid,” it is to be construed as importing that it was published immediately thereupon, without delay or lapse of time, and an allegation therein that notice of such assessment was mailed to each stockholder “forthwith” is to be construed as referring to the time of the passage of such resolution.</p> <p>Id.—Period of Prior Publication not Fixed—Sufficiency of Pleading.—Since the statute does not fix a period for publication of the notice of assessment prior to the date of delinquency and date of sale, the apparent defect in the statute cannot be supplied by the courts, and a complaint averring that the notice of assessment was published at the places and for the duration of. time prescribed by the statute is sufficient to support the plaintiff’s right to sell.</p> <p>Id.—Notice to Defendant—Matter of Defense—Presumptions—Support of Judgment.—When the complaint sufficiently alleges notice of the assessment by publication and mailing notice to each stockholder, including the defendant, in the absence of any showing by answer and proof that no service of the notice was actually made on the defendant, and that he was without any actual knowledge of the proceedings taken by the plaintiff, it cannot be presumed on appeal that he was without such notice for the purpose of reversing the judgment of the trial court.</p> <p>Id.—Collection or Assessment by Personal Action—Liability or Stockholders to Creditors not Involved.—The right of the corporation to proceed to sell stock in case of delinquency for an unpaid assessment upon stock, being entirely separate and distinct from the personal liability of a stockholder to the creditors of the corporation, the right of its directors to elect that it shall proceed by action instead of sale, pursuant to the statute, does not require that only those stockholders who were such when the debt was created shall be held liable upon the assessment, the question of the propriety of such personal action not being an open one.</p>

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

<p>Prohibition—Criminal Trial of Corporation—Illegal Commitment— Bemedy by Motion and Appeal.—Prohibition will not lie to prevent a criminal trial of a corporation under an information charging it with violation of the anti-trust law of 1907 (Stats. • 1907, p. 984), on the ground that the corporation, as such, was not legally-committed under the provisions of the Penal Code, the remedy at law being adequate to move to set aside the information on that ground, and if error be committed in the ruling upon such motion, such error may be corrected upon an appeal from the judgment.</p> <p>Id.—Substantial Compliance with Procedure Against Corporation Essential to Legal Commitment.—When a corporation is charged with a crime, a substantial compliance with the procedure established in sections 1390 to 1397 of the Penal Code is essential to a legal commitment of the corporation; and notwithstanding the presumption of a legal commitment arising from an information, such presumption may be rebutted by showing, on a motion to set aside the information, that such steps were not followed, and that the corporation had not been legally committed by a magistrate.</p>

<p>Criminad Law—Trial—Challenge to Panel—Bias and Prejudice of Sheriff—Prejudicial Error.—After the court had set aside the panel of a special venire summoned by the sheriff, on the ground that by his declarations he had manifested bias and prejudice against the defendant on trial, it was prejudicial error for the court to order the sheriff to summon other special venires.</p> <p>Id.—Execution of Order by Deputy Immaterial.—The execution of the illegal orders to the sheriff to summon a new special venire by his deputy, who was not personally disqualified, is immaterial. The act of the deputy is the act of the sheriff; and the sheriff, being without warrant, could not authorize his deputy to act.</p> <p>Id.—Duty of Court upon Binding Sheriff Disqualified'.—It was the duty of the court, upon finding the sheriff disqualified to summon a special venire, to order the coroner to summon a new venire, and if he is found to be disqualified, to appoint an elisor to summon the same.</p> <p>Id.—Error not Waived—Exhaustion of Peremptory Challenges.— It cannot be held that the defendant waived error in the summoning of disqualified special venires to which challenge to the panel were taken, where it appears that defendant exhausted all of his peremptory challenges to jurors after his challenges to the panel were overruled.</p>

<p>Municipal Corporations—Violation op Ordinances—Province op City Attorney—Void Ordinance por Special Prosecutor.—Under the charter of the city of San Diego, the prosecution for violation of municipal ordinances devolves wholly upon the city attorney; and an ordinance providing for the office of special prosecutor for such violations, at a fixed salary, and referring the appointment thereof to the city council, is unauthorized and void, either as an attempt to create an office or a liability by employment.</p> <p>Id.—Mandamus Against Auditing Committee—Defective Petition.— Under the charter of the city of San Diego, the auditing committee is required to deduct all indebtedness to the city from any claim or demand submitted to them for approval, and a petition for a writ of mandate to compel them to allow a rejected claim, which does not allege that the petitioner was not indebted to the city, is defective, and cannot sustain a 'mandamus against such committee.</p>

<p>Contract—Failure of Minds to Meet—Proposed Purchase of Fruit —Modification—Approval of Sample at Shipment.—When proposed terms for the purchase of peaches to be shipped by defendant from San Francisco to plaintiff at St. Louis were accepted subject to approval of sample at time of shipment, and there was no consent of the purchaser to such modification, and no agent of plaintiff was named at San Francisco to approve samples at time of shipment, but plaintiff requested samples to be forwarded to him at St. Louis, to which no reply was made, there was a failure of the minds of the parties to meet upon the terms of contract, 'and no contract was made upon which the defendant can be held liable in damages to the plaintiff for failure to ship the peaches.</p> <p>Id.—Letter to Defendant’s Agent—Retention by Plaintiff as Sale Ticket—Acceptance or Estoppel not Shown—Statement by Agent as to Negotiations.—The retention by plaintiff, at its request, of a letter written by defendant to its agent expressing acceptance of plaintiff’s terms subject to the modification stated, as a sale ticket, does not indicate an acceptance of the modification, nor an estoppel of defendant to deny a contract, when such agent stated at the time that plaintiff must take up further negotiations directly with the defendant.</p> <p>Id.—Harmless Evidence—Custom of Buyers.—Evidence as to the custom of buyers to inspect samples at the time of shipment, being in harmony with the plain and unambiguous language of the contract in suit, was without prejudice to the plaintiff.</p> <p>Id.—Evidence Explaining Term—“Slightly Ppocessed.”—Evidence was admissible to explain the meaning of the term “slightly processed,” and to show that peaches of that character would tend to dry out and lose weight in transmission.</p> <p>Id.—Evidence—Custom of Trade—Different Modes of Sale—Materiality of Modification.—Evidence was admissible to show that according to the custom of the trade there were three different modes of sale of fruit: 1. A general sale for a specific price; 2. By sample delivered and approved upon receipt at place of delivery; and 3. Upon examination and approval of sample at time and place of shipment. Such evidence tended to show the materiality of the[ modification of plaintiff’s offer.</p> <p>Id.—Inadmissible Evidence—Rejected Offer.—The court properly refused to admit evidence of an offer made by defendant’s agent which was rejected by the plaintiff, when not shown to have any connection with a subsequent proposition and counter-proposition in writing under which plaintiff claims.</p>

<p>APPEAL from an order of the Superior Court of Fresno County, denying the motion of defendants for a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action foe Death of Elevator Operator—Defective Electrical Mechanism—Liability of Employer—Want of Ordinary Care— Erroneous Instruction.—In an action for the death of the operator of an electric elevator, caused by a worn handle, producing a shock, which felled him to the floor while ascending alone, and caused the crushing of his head between floors, the liability of his employer is limited to want of ordinary care in failing to provide him with reasonably safe mechanism; and it was prejudicially erroneous for the court, in instructing the jury, to classify operators with passengers, so as to require from the owners the utmost care and diligence of very cautious persons in providing proper and safe machinery as far as human foresight can go, and responsibility for injury caused by the slightest neglect against which human foresight could have guarded.</p> <p>Id.—Prejudicial Error not Cured by Correct Instruction.—The prejudicial error appearing in such erroneous instruction was not cured by the fact that the court in another part of its charge instructed the jury correctly as to the duty and degree of care due from a master to a servant, it being impossible for the jury to determine which of the two instructions was correct, and impossible to tell which was adopted by them in reaching their verdict, and it appearing that each of the contradictory instructions was applicable to the facts appearing in the case.</p> <p>Id.—Liability for Death not Affecting Measure of Responsibility. The liability for the death of a servant accruing to his heirs cannot effect the measure of responsibility of an employer for the death of his servant, and if it should appear that the employer was not responsible to his servant, and that there was no breach of duty on Ms part toward the deceased, warranting recovery by the servant, if he had lived, there can be no recovery by Ms heirs.</p> <p>Id.—Law of Negligence not Changed.—The statute in permitting a recovery, by the heirs of the deceased has not changed the law respecting negligence.</p>

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

<p>Constitutional Law—Effect of Amendment—Increase of Salaries of State Officers During Term—Repeal of Prior Provisions.—■ The original provisions of section 19 of article V* of the constitution, fixing the salaries of state officers, and forbidding the increasing or diminishing thereof by the legislature during their official terms, cannot affect the power of the people to amend the same by the amendment adopted November 3, 1908, which went into effect immediately upon its adoption, and operated to. repeal the prior provisions and to substitute new and increased salaries of incumbents, and new and future restrictions upon the power of the legislature relative to the increased salaries.</p> <p>Id.—Evidence of Ratification of Amendment—Certificate of Secretary of State.—The certificate of the Secretary of State showing the adoption of the amendment is conclusive of the fact that the same was duly ratified.</p> <p>Id.—Change of Salaries.—Salaries may be changed at any time by a constitutional amendment, though not by the legislature.</p> <p>Id.—Time of Operation of Amendment.—The amendment of November 3, 1908, to section 19 of article Y of the constitution is in no sense retroactive in its operation; but it simply has force and effect from and after its ratification, and it operates prospectively thenceforward, and its operation is not to be postponed until the terms of the incumbents have expired.</p> <p>Id.—Mandamus to Controller.—Mandamus will lie to require the state controller to draw his warrant in favor of an incumbent of a state office for the increased salary provided for in the amendment to the constitution.</p>

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

<p>APPLICATION for a st'ay of execution of sentence rendered upon the conviction of the defendant of manslaughter in the Superior Court of the City and County of San Francisco. F. H.- Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, perpetually staying execution upon a clerk’s judgment upon submission to arbitration. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Deed—Indefinite Description of Land—Parol Evidence to Remove Ambiguity and Make Description Definite.—When a deed contains an indefinite description of the land granted, describing it generally, as “all the right, title and interest and claim” of the grantor “to that lot, piece and parcel of land situate and being” in a specified county, section, township and range, “it being my dwelling-house and lands appurtenant thereto, together with all and singular the tenements, hereditaments and appurtenances,” etc., parol evidence is admissible to explain and remove the ambiguity, whether it be considered patent or latent, and to make'the description definite as to the quantity of land conveyed.</p> <p>Id.—Degree of Proof Required.—The parol testimony to remove the ambiguity should be so clear and convincing as to put beyond dispute or reasonable doubt the exact meaning and intention of the grantor in using the language in the deed as to which the ambiguity arises.</p> <p>Id.—Sufficiency of Parol Evidence—Definite Acreage—Farming Community —"Home Place” of Grantor — Intention Toward Grantee.—Parol evidence showing that the dwelling and land conveyed were situated in a farming community; that the dwelling stood in the center of a farming tract owned by the grantor, which constituted his “home place,” and was the only land belonging to him in the county and section described in the deed, and comprised a farm of one hundred and ten acres; that the farmhouse was practically valueless as a residence apart from the farm tract and out-buildings; that the grantor was the brother of the grantee, and was largely indebted to him, and had declared his intention to make his brother the owner of his “home place”; and that his brother “had a better right to it than anyone else”—is sufficient, in connection with the language of the deed, to show that it was the intention of the grantor to convey to the grantee the whole of “that lot, piece and parcel of land” belonging to the grantor in the county and section described.</p> <p>Id.—Presumption from Grant.—One who grants a thing is presumed to grant also what is essential to its beneficial use; and everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing to the grantee.</p> <p>Id.—Delivery of Deed—Direction of Grantor to Notary—Loss of Dominion by Grantor—Title of Grantee.—When it appears that a notary accidentally met by the grantor and grantee was at the place of business of the grantor to draw the deed, which was there drafted, executed and acknowledged, and the notary had to take it to his office to have the seal attached, and was directed by the grantor to deliver the deed to the grantee, all dominion of the grantor over the same was thereby relinquished, and the title passed absolutely to the grantee, though the deed, through the forgetfulness of the notary, was not actually delivered by him to the grantee until after the death of the grantor.</p>

<p>Criminal Law—Forgery—Alteration of Clearing-house Certificate—Illegality of Issue Immaterial—Gist of Crime.—Upon appeal from a judgment of conviction of forgery in altering and changing a clearing-house certificate issued by a city clearing-house, this court need not pass upon the question of the legality or illegality of the issue, or as to whether it was issued as money, in violation of express prohibition, for reasons of public policy. It is sufficient that upon the face of the altered certificate it will have the effect to defraud or injure those who may act upon it as genuine; and the alteration of the certificate with intent to defraud is the gist of the crime charged.</p> <p>Id.—Matters Foreign to Prosecution for Forgery — Contracts “Against Public Policy”—Immaterial Distinction — Illegal Issuance of Bills as Money.—The question as to what contracts are void “as against public policy,” or for other reasons, relates to matters wholly foreign to a prosecution for forgery. In considering contracts “void as against public policy,” there is no distinction between what the statute forbids for reasons of public policy not expressly stated, and that which is forbidden for reasons expressly declared, such as the prohibition against the illegal issuance of bills as money, which is prohibited purely for reasons of public policy.</p> <p>Id.—Charge of Forgery and Uttering Forged Instrument—Information not Demurred to for Duplicity—Untenable Objections upon Appeal.—When the information charged both the forging and the uttering of the forged instrument, and the demurrer to the information did not present the ground of duplicity, that objection cannot be urged upon appeal for the first time, as against the verdict.</p>

<p>The facts are stated in the opinion of t'he court.</p>

<p>Vendor and Purchaser — Rescission op Purchase — Fraudulent Representations—Dimensions of Land—Reliance of Purchaser —Opportunity of Measurement.—In an action to rescind a contract fqr the purchase of land for substantial failure of consideration, and for fraudulent representations of the vendor, as to the dimensions and quantity of the land purchased, on which plaintiffs relied, believing them to be true, and without which they would not have made the purchase, the mere fact that before the purchase the proposed purchasers were shown the land, and had opportunity to make exact measurements, cannot preclude .their right to rely upon the vendor’s representations as to its dimensions, made for the purpose and design of inducing them to enter into the contract, and which were incorporated in the contract, and were well calculated to prevent plaintiffs from making any surveys or investigation as to the true dimensions.</p> <p>Id.—Owner Presumed to Know Boundaries and Area of Land— False Representations—Fraud in Law upon Purchaser.—As a general rule, in the absence of facts showing the contrary, the owner of land is presumed to know the boundaries and area of his land, and a purchaser thereof from him is warranted in relying upon the owner’s representations as to the area, whether as to acreage or dimensions, and if his representations concerning the same are false, they operate as a fraud in law upon the purchaser.</p> <p>Id.—Mere Means of Knowledge of Purchaser Insufficient to Remove Fraud in Law.—The mere existence of opportunities for examination, or of sources of information, or the means of obtaining knowledge of the falsity of the representations relied upon as true by the purchaser, cannot remove the fraud in law arising therefrom, where the only question is as to the purchaser’s right to rely thereupon, and no question of laches is involved.</p> <p>Id.—Map Attached to Contract as Exhibit—Incorrect Description—Description by Metes and Bounds;—The fact that a map attached to the contract as an exhibit gave an incorrect description of the dimensions of particular lots, but gave no statement of quantity thereof, was not designed to put plaintiff upon inquiry, when the general dimensions of the whole land shown thereon by metes and bounds accords with the false representations made to the purchasers by the owner.</p> <p>Id.^Relief in Equity for Fraud Unaffected by Suspicious Circumstances.—Courts of equity will not withhold relief from parties ignorant of the true condition, who, relying upon false representa- ‘ tions of material facts made for the purpose of inducing assent, are thereby inveigled into contracts, upon the ground that there are circumstances calculated to arouse suspicion and cause an investigation whereby they might have discovered the swindle.</p> <p>Id.—Liability of Fraudulent Vendor Unaffected by Purchaser’s Lack of Diligence.—The liability of the vendor arises from its own fraud and false representations, and is unaffected by the question of diligence or the want of it on the part of the purchasers in availing themselves of the opportunity afforded of determining the size of the tract of land, or their failure to give heed to such warning as the exhibition of the map afforded of defendant’s dishonesty.</p> <p>Id.—Judgment Unsupported by Findings—Judgment not Award able to Plaintiffs—Failure to Find upon Material Issue as to Width of Land.—Held, that, while the findings do not support the judgment rendered for the defendants, the judgment cannot be ordered for plaintiffs upon the findings, on account of the failure of the court to find upon the material issue as to the actual width of the land necessary to show actual and appreciable damage to the plaintiffs.</p> <p>Id.—Rescission for Fraud not Sustainable Without Damage.—In order to sustain the rescission of a contract for fraud, some actual and appreciable damage to the plaintiff must appear.</p> <p>Id.—Insufficient Finding as to Width of Land.—A finding that the tract of land was less than two hundred and fifty feet in width, without showing the exact or approximate width thereof, is insufficient to show a material failure of consideration, or actual and appreciable damage to the plaintiffs.</p> <p>Id.—Boundary of Land Bordering on Ocean—Width not Established.—Private land bordering on the ocean extends to the line of high-water mark at ordinary or neap tides, unaffected by wind or wave; and a finding as to the width of the land, measured at each end thereof to the point of extreme reach of the wash of the waves, and of a different width to the highest point of tide level, without specifying what tide is intended, whether the high spring equinoctial tides, or the spring tides occurring twice in every month, or the ordinary neap tides occurring twice in every twenty-four hours, is insufficient to establish the width of the land.</p>

<p>Action to Quiet Title—Cross-complaint—Specific Performance of Contract to Purchase—Inadequacy of Consideration.—In an action to quiet title against the executor of the will of a deceased person, who seeks by way of cross-complaint to enforce a contract made by the decedent with the plaintiff, to purchase the property in question, when such cross-complaint shows that, at the time of the contract, the property was worth from two and one-half to three times the value of the land, it shows on its face such inadequacy of consideration as must defeat the right to enforce a specific performance, under section 3391 of the Civil Code.</p> <p>Id.—Justice and Reasonableness of Contract.—The rule is well established that the allegations of the party seeking specific performance must be such as to satisfy the conscience of the chancellor as to the justness and reasonableness of the contract.</p> <p>Id.—Absence of Right to Specific Performance—Sole Remedy fob Damages.—Where the right to a specific performance does' not exist, the only right of action, if any, is for damages for breach of the contract.</p> <p>Id.—"Value Over Price Intended as a Gift Immaterial—Promise not Enforceable.—It matters not that the excess of value above the price stipulated was promised or intended as a personal gift to the deceased. As such, and to that extent, if no other equitable facts intervene, the promise is not enforceable.</p> <p>Id.—Promise not Equitably Sustained — Improvements Under Lease for Ten Years—Finding.—When possession was taken by the deceased under a lease for ten years, the forfeiture of which was not claimed or decreed prior to his death, and the supported finding of the court negatives the fact that improvements were made by the lessee relying upon the promise of a gift of part of the value of the land, the improvements cannot equitably sustain the promise sought to be enforced by specific performance.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. William P. Lawlor, 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. George H. Hutton, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Herbert J. Goudge, Williams, Goudge & Chandler, and Harry L. Bearing, for Appellants.</p>

<p>Action to Reform and Specifically Enforce Contract to Sell Lands—Mutual Mistake—Intention of Parties—Sufficiency of Complaint.—A complaint seeking to reform a mutual contract to sell real estate, so as to make it a contract to exchange lands, and to insert a more particular description of the property to be exchanged, and to correct other terms thereof, on the alleged ground of the mutual mistake of the parties, fully set forth, whereby the writing does not express the intention of the parties, or the agreement which they actually made, and to specifically enforce the contract as reformed, states a sufficient cause of action, under sections 3399, 3401, and 3402 of the Civil Code, as well as under the authorities upon equity jurisprudence applicable thereto.</p> <p>Id.—Proof of Grounds of Reformation—Parol Evidence—Statute of Frauds.—The grounds- for the reformation of a contract, whether based upon mutual mistake or fraud of one of the parties, may be proved by parol evidence, notwithstanding the contract is one which by the statute of frauds is required to be in writing.</p> <p>Id.—Subject of Reformation—Agreement Imperfectly Expressed— Untenable Objection.—If the agreement as made, though imperfectly expressed, contains all the elements of a contract required by section 1550 of the Civil Code, a case for reformation thereof ' may be presented by proper allegations and proof, and the contention that the contract, because imperfectly expressed, cannot be made the subject of reformation, is untenable.</p> <p>Id.—Construction of Complaint—Agreement of Parties.—Held, that the complaint is not obnoxious to the objection that it does not allege that the parties agreed to the matter alleged; but, upon a proper construction thereof, it appears by sufficient averment that • the parties agreed to the terms of the contract as established by the trial court. An allegation that the parties entered into an agreement, and that a certain provision is one of the covenants of the agreement, is a sufficient allegation that they agreed to said provision; and the language of other covenants is such that anyone with common understanding would infer therefrom that the parties agreed to the contract as they intended and believed it to be written.</p> <p>Id.—Matters Going to Construction of Contract—Use of Word “Sell”—Identification of Property.—As to the meaning attached to the word “sell” used by both parties, and as to the identification of the property intended to be exchanged, these particulars involve the construction or interpretation, and not the reformation, of the contract. Under the rules prescribed for the interpretation of contracts the plaintiff, upon an allegation that the contract was so understood by the parties, could prove that “sale” was used for “exchange,” which is a species of sale; and so likewise will the terms defining the property, which introduce no new element into the contract, and may be made certain by the abstracts, which must be presumed to contain all that is claimed by plaintiff.</p> <p>Id.—Grounds for Reformation Shown by Enlargements and Excision.—The complaint as regards the enlargements and excision of terms of the contract sufficiently shows that the enlargements were omitted from the written agreement by error, mistake and unconscious forgetfulness of all the parties involved, and that each of such provisions and covenants was one of the terms of the contract between the plaintiff and defendant; and the excision is sufficiently alleged to have been inserted by mutual mistake of the parties and of a third party, and was part of another and distinct contract for the sale of another piece of land, showing how it was mistakenly inserted.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Earl Rogers, Paul W. Schenck, and O’Melveny, Stevens & Millikin, for Appellant.</p>

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

<p>APPLICATION for a writ of habeas corpus to review a judgment of conviction in the justice’s court of Yreka Township in Siskiyou County. W. M. Thomas, Justice of the Peace.</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>Seth Millington, Thos. Rutledge, and Ernest Weyand, for Appellant.</p>

<p>Building Contract—Materials to be Used by Furnisher in Construction of Boof—Abandonment of Contract—Ownership— Claim and Delivery.—When, under a valid building contract with a city to construct a city hall, the contractor employed plaintiff to furnish all materials, and to construct a tile roof thereon, and after the materials therefor were placed upon the ground for the necessary work contracted for, the contractor abandoned his contract, and a new contract was let by the city, and the city claimed title to the materials, the ownership of such materials remained in the party furnishing the same, and after demand made by him upon the city and the new contractor for the possession of the same, before they were placed in the structure, and their refusal to grant the same, the owner is entitled to recover the possession of the materials or their value, in an action of claim and delivery against them.</p> <p>Id.—Construction of Code—Section 1200 of Code of Civil Procedure Inapplicable.—In such case the city cannot claim title to the materials so furnished under section 1200 of the Code of Civil Procedure, which only applies as against lien claimants for materials furnished for use by the contractor in the building, when the contract is abandoned, and has no application to materials, the title to which never passed to the contractor. The statute does not contemplate that the owner of the building may take property not belonging to the contractor.</p> <p>Id.—Nature of Contract—Materials not Sole—Affixing to Freehold.—The nature of the contract made was not one for the sale of materials to the contractor, but was in the nature of one to furnish materials and affix them to the freehold by work and labor, and until so -affixed the property to the materials will not pass.</p> <p>Id.—Charging Materials to Contractor not Affecting Nature of Contract.—The mere circumstance that the materials placed on the ground under the contract made with the contractor were charged to him cannot affect the nature of the contract made, or the title to the materials furnished by the owner thereof to be affixed on the roof by his labor.</p>

<p>County Ordinance — Publication — Names of Voters — Passage Shown—Absence of Negative Vote—Omission of One Affirmative Vote not Invalidating.—Although the publication of a county ordinance is necessary to its validity, and must be deemed mandatory, and it must show on its face that it was regularly passed, yet, when the names of the voters therefor, as published, show that four out of five supervisors voted for the ordinance, and the publication shows that there was no negative vote, it shows that the ordinance was passed,x and the mere accidental omission to show the name of the chairman, who voted for it, as appears of record, does not show a substantial failure to comply with the statute, nor render the ordinance invalid.</p> <p>Id.—Uncertainty not Prejudicial—Presumed Mistake of Printer. In such case the mere uncertainty whether the chairman voted for the ordinance, or failed to vote at all, could not possibly prejudice anyone. The mistake is presumably that of the printer; and no one’s rights could be prejudiced thereby.</p> <p>Id.—Controlling Reason for Statutory Requirement as to Publication of Names.—The controlling reason for the statutory requirement as to the publication of the names of parties voting for and against the ordinance is to show the public and those interested that the ordinance was in reality passed by the requisite vote.</p> <p>Id.—License Tax — Sheep Herding and Pasturage — Action by County—Validity of Ordinance—Reversal of Judgment upon Findings.—In an action by a county to recover a license tax imposed under a county ordinance regulating the business of raising, grazing, herding and pasturing sheep within the county, when all material facts are found for the plaintiff,- and judgment went for defendants solely on the ground of the supposed invalidity of the ordinance imposing the tax, upon the determination by this court of that question to the contrary, the judgment will be reversed upon the finding, with directions to the court below to enter judgment for the plaintiff thereupon.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. M. Barstow, Variel & Hannon, and E. Edgar Galbreth, for Appellant. °</p> <p>Patterson Sprigg, Valentine & Newby, and Wright, Schoonover & Winnek, for Respondents.</p>

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

<p>Negligence—Collision of Moving Cab with Bicycle Rider—Absence of Warning—Caution of Plaintiff—Contributory Negligence— Question of Fact.'—In an action for damages arising from the alleged negligence of the defendant in causing a backing ear to collide with plaintiff’s bicycle, to his injury, without warning, while he was crossing the track thereon, when it appears that the jury were justified in finding from the evidence that there was no light on the moving ear, and that no warning was given of its approach in any manner until plaintiff was in such close proximity to it that when he saw it backing he could not with ordinary care avoid injury, and it also appears that before plaintiff attempted to cross the track he looked and listened and saw and heard no ear approaching, though he did not stop while doing so, the question of his contributory negligence was one of fact for the jury. •</p> <p>Id.—Degree of Care Required of Person Crossing Track—Ordinary Care to Avoid Injury.—The law requires no more of a person approaching a railroad crossing upon a public highway than that he use ordinary care to avoid injury, which is such care as a reasonable and prudent man would use under the same or similar circumstances. Ordinary care requires that he should look aud listen attentively both ways, and look and listen from a point where he can do so effectively; though it cannot be affirmed, as matter of law, what is the precise number of feet from the crossing at which the traveler must look and listen, the underlying test being, Did the traveler exercise ordinary care in selecting the place?</p> <p>Id.—Traveler not Required to Stop as Matter of Law—Question for Jury.—Though circumstances may appear from which the duty may be cast upon a traveler, as a man of ordinary prudence, in the exercise of ordinary care, to stop before attempting to cross a track, yet there is no such rule of law applicable to all circumstances; and it is for the jury to say from the facts of the particular ease whethér the traveler should have stopped, either before he commenced to cross the tracks, or before he crossed the particular track upon which the accident occurred, by reason of ears backing thereon, without warning or guard, the presence of which he did not anticipate, before actual discovery.</p> <p>Id.—Unerring Judgment not Required in Stress of Peril—Negligence of Defendant.—The plaintiff who had taken ordinary precautions against danger, before attempting to cross the tracks, and saw and heard no moving ears, was not required to exercise unerring judgment when he first discovered the collision threatening him from cars backing, without warning or guard, and he is excusable if he made an unwise choice, under the disturbing influence upon his mind caused by defendant’s negligence; and it is sufficient that he used the only means which seemed to him available to avoid injury.</p> <p>Id.—Reasonableness of Effort to Escape Injury—Question fob Jury.—The plaintiff, in the presence of the impending danger, was only required to do what seemed reasonable under the circumstances known to him; and the reasonableness of "his effort to avoid the injury, after discovery of the danger, was a question for the jury, to be determined by them, in view of all the circumstances of the particular case.</p> <p>Id.—Presumption of Absence of Negligence not Allowed—Contributory Negligence—Circumstances to be Considered by Jury. While it is true that the plaintiff in crossing the railroad track may not rely upon the assumption that the railroad company will not be guilty of negligence, and that its negligence will not absolve him from the duty to exercise the usual and ordinary precautions required of a person about to cross a railroad track, yet all the circumstances may be considered by the jury, including those pointing to the defendant’s negligence—not as excusing contributory negligence on plaintiff’s part, but as tending to explain his conduct, of which the jury are to determine whether or not it, in fact, constitutes contributory negligence.</p> <p>Id.—General and Special Verdict—Presumption in Favor of General Verdict, Unless Special Verdict is Absolutely Irreconcilable.—All presumptions are in favor of the general verdict for the plaintiff, which determines all issues in his favor, including the question of contributory negligence, where there is evidence to support it; and it must control, if the special verdict is not absolutely irreconcilable therewith.</p> <p>Id.—Special Findings not Irreconcilable with General Verdict— Hypothetical Issues Ignoring Circumstances.—When, in addition to a special finding that no warning was given by anyone to plaintiff, before he crossed the track, hypothetical issues were submitted which ignored the existing circumstances in proof, and asked whether the accident could have been prevented, if plaintiff had stopped when he first reached a point where he could have seen the approaching cars, to which the answer was “Yes,” and as to how near the plaintiff was to the. track where the accident occurred when he could have seen them, to which the reply was “about seven feet”; held, that such special findings are not irreconcilable with the general verdict, which must control, under the law applicable to the existing circumstances in proof.</p> <p>Id.—Instructions not Inconsistent with General Verdict.—Held, that in considering whether the instructions were inconsistent with the general verdict, they must be construed together as a whole, and that, so taken, they were not inconsistent with the general verdict; and that mere hypothetical instructions, that if the jury believe from the evidence that plaintiff could have stopped instantly when the train was in view of him, or when he could have seen it, he was guilty of contributory negligence in not doing so, are not inconsistent with the general verdict, which found from the evidence that defendant was not in view of the backing car until his front wheel was upon the track, and that until then he had no-reason to anticipate its presence, and that then to have stopped instantly would have meant certain injury, if not death; and that, there was no contributory negligence of plaintiff, as matter of fact..</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. Wm. S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Quiet Title—Answer Pleading Deed in Escrow—Replication in Law—Matter of Proof—Eratjd—Nondelivery.—In an action to quiet title, in which plaintiff alleged title, and a claim by defendant without right, if the defendant pleaded, by way of answer, a deed executed by plaintiff to defendant, and delivered to a third person in escrow, with instructions to deliver the same to defendant on the death of plaintiff, the law replies to such defense without the necessity of any other or further pleading, and plaintiff may avoid the deed by proof that the defendant procured the same by fraud and undue influence, and that plaintiff had no intention to deliver the deed or to part with control thereof, and notified the drawer of the deed to deliver it to her, and informed him that she intended to retain control thereof, and would retain possession of the same.</p> <p>Id.—Support of Findings—Testimony of Plaintiff—Conflicting Evidence.—The testimony of the plaintiff is sufficient to support findings for the plaintiff, notwithstanding the conflicting testimony for defendant to the contrary.</p> <p>Id.—Delivery—Question of Intention.—The mere giving of a deed to a third person cannot constitute a delivery per se, or a delivery in escrow, or any delivery, the vital element in the act being the intention with which the act of parting with the instrument was done.</p> <p>Id.—Evidence of Fraudulent Scheme.—When it appears that the mother had previously executed a deed of gift to her son, but had studiously maintained exclusive possession and control thereof, evidence is admissible to show that the whole affair of a new deed to be drawn by the son’s attorney, and kept by him as an escrow, involved a fraudulently conceived and executed scheme to enable the son to secure exclusive ownership of the entire estate of his mother, to the exclusion of the other children, for whose pretermission no good reason appears.</p> <p>Id.—Evidence- Relation of Attorney and Client—Independent Advice.—It was proper to question the attorney who drew the deed as to who paid him for his services, and whether plaintiff paid him anything, as bearing on the question whether the relation of attorney and client existed between plaintiff and the draftsman of the deed, and whether she received independent advice from the son’s attorney.</p> <p>Id.—Amicable Terms Between Plaintiff and Her Other Children— Admissible Proof.—The testimony of the plaintiff was admissible to show that she was on amicable terms with her other children, as being proper and pertinent upon the question whether she would have signed the deed at all but for the persuasions and representations of her son and his attorney.</p> <p>Id.—Sufficiency of Evidence—Substantial Conflict—Questions of Law—Review upon Appeal.—When the evidence is substantially conflicting, the sufficiency thereof to support the findings is not the subject of review upon appeal; but its review must be confined wholly to questions of law arising upon the record. It is only when the evidence, as matter of law, is too weak to support the findings that the appellate court can so declare.</p>

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

<p>Estates of Deceased Persons—Time for Presenting Claim by Administrator.—Under the provision of section 1510 of the Code of Civil Procedure, construed with sections 1490 and 1493 of the same code, the claim of an administrator upon a promissory note, as a creditor of the estate, must be presented to the judge for allowance within the time provided for the presentation of the claims of other creditors against the estate, and, if presented after the expiration of that time, it is barred forever, under the terms of the code; and the claim was properly rejected by the judge.</p> <p>Id.—Mode oe Presentation Immaterial.—The special statutory provision in section 1510 of the Code of Civil Procedure, as to the mode of presenting a claim in favor of an administrator, as a creditor of the estate, to the judge of the court, does not take the case out of the general limitation of time for the presentation of other claims of creditors to the administrator and judge.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, denying an application to he relieved from default in failing to propose a statement on appeal in time, and refusing to settle the same. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—Aiding and Abetting—Instructions Taken Together.—In a prosecution for grand larceny of animals, based upon evidence warranting a finding that defendant aided and abetted the crime, and conspired with the thief to steal them, and make a bill of sale to him, and to assist the thief in driving them out of the county for sale, instructions based upon the evidence should be taken together, and one not sufficiently clear, based upon defendant’s knowledge of the larceny, and thereafter aiding and abetting the thief in taking and driving them out of the county, is made clear by another instruction that “the defendant is not on trial for, nor charged with the crime of, receiving stolen property, and unless you are satisfied to a moral certainty and beyond a reasonable doubt that the defendant did actually steal said animals, or that he was concerned in the commission of the larceny, and aided and abetted, or, not being present, advised and encouraged its commission, you should find the defendant not guilty.”</p> <p>In—Construction of Charge of Court.—In determining the propriety of instructions, the entire charge of the court must be considered, and if, as a whole, it correctly states the law, it is free from error, notwithstanding selected passages may state a proposition without at the same time and in immediate connection stating the exceptions or qualifications to which.it is subject in its application to the ease in hand.</p> <p>Id.—Instruction as to “Reasonable Doubt”—Language of Chief Justice Shaw Sufficient.—When a court has properly 'instructed "the jury as to the law of reasonable doubt in the oft-approved language ' of Chief Justice Shaw, which is sufficient for all courts of last resort, it should be sufficient for the trial court, without further amplification, but it is held that the amplification made in the present case, rightly understood, is within the proper doctrine of reasonable doubt as given by Chief Justice Shaw.</p> <p>Td.—Reasonable Doubt “Arising from Evidence” or “Unsatisfactory Evidence.”—An instruction that a reasonable doubt must have some reason arising out of the evidence in the case, which can be found therein, and that, as applied to the evidence in criminal cases, it means an actual and substantial doubt growing out of the unsatisfactory nature of the evidence in the case, and that the jury cannot go outside of the evidence to hunt up a reasonable doubt on which to acquit, is not erroneous.</p>

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

<p>Port Wardens of San Francisco Port and Harbor—Tenure of Office—Date of Appointment—Tenure Attached to Officer.—The office of port warden of San Francisco port and harbor was established and regulated by the Political Code as adopted in 1872, the number of which is fixed in section 2501 thereof, and the tenure of office of which is fixed at four years, in section 368 thereof, without fixing any date of beginning or ending thereof, in which case each incumbent takes a term of four years from the date of his appointment, without regard to the length of holding of predecessors. In such case the tenure is attached to the officer, and not to the office.</p> <p>Id.—Effect of Holding Over Until New Appointment.—The holding over of an appointee beyond the period of four years from the date of appointment, for a longer or shorter time, until a new appointment is made, is merely a prolongation of the old term, and forms no part of a new term, which dates four years from the date of a new appointment in all cases.</p> <p>Id.—Construction of Change in Political Code—Office of Port Warden not Affected.—Section 1003a of the Political Code, providing that "when the appointment is not made until after the expiration of the preceding term, the appointee holds office only for the balance of the unexpired term, as provided by the law creating the office,” relates to offices having a fixed term, and which may have strictly an “unexpired term.” That section is inapplicable when no new term has commenced; and it is not to be construed as changing by implication the tenure of the office of port warden, which in all cases begins a new term of four years from the date of appointment, without reference to the prolongation of previous holdings until a new term is created by a new appointment.</p> <p>Id.—Quo Warranto.—The writ of quo warranto will not lie to oust port wardens of the port and harbor of San Francisco, where it appears that neither appointee has held for the period of four years from the date of his appointment.</p>