79 Cal. 250-257. BOYD v. DESMOND.

Paper is "Filed" if actually delivered to clerk for filing, although not so endorsed, p. 254.

To same effect in Mills v. Dearborn, 82 Cal. 56, but ruling aliter when not so delivered. Note citations: Beebe v. Morrell, 15 Am. St. Rep. 297, on general subject.

79 Cal. 258-260. MAHAN v. WOOD. S. C. 44 Cal. 462; 105 Cal. 12. Law of Case does not apply to retrial where questions of fact involved, and evidence is conflicting, p. 259.

To same effect in Robinson v. Thornton, 114 Cal. 277, holding erroneous an instruction that former opinion was binding on jury on facts and law; Franz v. Mendonca, 146 Cal. 643, applying rule in suit to enjoin defendant from obstructing use of private road; dissenting opinion in Wright v. Water Co., 23 Nev. 48, main opinion holding general rule applicable. Note citations: Gould v. Sternburg, 15 Am. St. Rep. 143, on general subject.

Order Granting New Trial will be approved when evidence conflicting, p. 260.

See note to Missouri etc. Co. v. Platzer, 15 Am. St. Rep. 780, on review of evidence.

79 Cal. 260-262. LONG v. SAUFLEY. S. C. 89 Cal. 437.

Contract.-Prevention of Performance is equivalent to performance so far as rights to be obtained thereunder are concerned, p. 262. Cited in Barnum v. Green, 13 Colo. App. 260, noted under Wolf v. Marsh, 54 Cal. 228. See note, 16 Am. St. Rep. 792.

79 Cal. 262-264. SHAIN v. BELVIN.

Cross-Complaints.-Answer will not be so treated unless clearly appearing to have been so intended, p. 263.

Cited to same effect in Goldman v. Bashore, 80 Cal. 149, as to similar pleading; Cohn v. Kelly, 132 Cal. 469, noted under Doyle v. Franklin, 40

Cal. 106.

In Action on Note defendant does not make case for equitable relief by averring want of consideration and praying its delivery up and cancellation, p. 263.

Approved in Ada Co. v. Bullen Bridge Co., 5 Idaho, 97, 196, suit to cancel county warrants illegally issued not maintainable as Revised Statutes, section 4928, relating to wager of claims provides adequate legal remedy.

79 Cal. 265-266. FAULKNER v. HENDY.

Services of Expert are not Chargeable as Costs unless he is appointed by court, p. 266.

To same effect in Miller v. Ditch Co., 91 Cal. 106, rejecting charge of five hundred dollars for maps introduced where expenditure not justified by proof offered; Bathgate v. Irvine, 126 Cal. 149, 77 Am. St. Rep. 170, disallowing certain witness fees for maps; McDonald v. Burke, 2 Idaho, 998, 35 Am. St. Rep. 278, as to fees of expert; and, on same point, Board v. Lee, 3 Colo. App. 180, denying right of court to allow more than statutory witness fees; and Sanderson v. Sanderson, 52 N. J. Eq. 256, as to medical expert on will contest.

79 Cal. 266-268.

BATCHELDER v. BAKER. S. C. see Baker v. Brickell,

102 Cal. 620, 622.

Presumption on Appeal is that appointment of guardian ad litem was regular, p. 268. See note to Randolf v. Town, 14 Am. St. Rep. 271, on general subject.

79 Cal. 268-273.

AFFIERBACH v. MCGOVERN.

Complaint in Replevin must aver ownership or right of possession in plaintiff when action commenced, p. 270.

To same effect in Fredericks v. Tracy, 98 Cal. 660, holding complaint insufficient where no such allegations made; and Truman v. Young, 121 Cal. 491, ruling similarly; Williams v. Ashe, 111 Cal. 188 (cited in Irish v. Sunderhaus, 122 Cal. 310), but holding complaint sufficient on appeal when not demurred to; Holly v. Heiskell, 112 Cal. 175 (cited in Lettelier v. Mann, 79 Fed. Rep. 82), holding complaint insufficient; Byxbee v. Dewey, 128 Cal. 324, but not discussed; Braun v. Woollacott, 129 Cal. 109, discussing complaint by co-partners to recover on bond executed to firm; Harris v. Smith, 132 Cal. 317, sustaining complaint; Vanalstine v. Whelan, 135 Cal. 233, holding complaint insufficient; Kimball v. Redfield, 33 Or. 295, holding complaint insufficient. Note citations: Wilhite v. Williams, 13 Am. St. Rep. 284, on general subject.

79 Cal. 273-278. VANDERSLICE v. MATTHEWS.

Statute of Limitations does not bar amended complaint when alleging same cause of action and original filed in time, p. 277.

Cited in Nellis v. Pacific Bank, 127 Cal. 168, noted under Barber v. Reynolds, 33 Cal. 501; Frost v. Witter, 132 Cal. 427, 84 Am. St. Rep. 59, noted under Lorenzana v. Camarillo, 45 Cal. 125; Henderson v. Chaires, 35 Fla. 437, construing local statute as to commencement of new action after reversal, and death of defendant. Note citations: Leatherman v. Times Co., 21 Am. St. Rep. 344, on general subject.

79 Cal. 278-283. EDE v. COGSWELL.

Street Work-Extensions.-Section 19, article 11, did not apply to contracts made before its enactment, p. 281.

To same effect in Ede v. Knight, 93 Cal. 161, citing main case also at page 166, as to constitutionality of street acts of 1876 and 1878.

79 Cal. 285-287. TAYLOR v. NORTH STAR GOLD MINING CO.

Ultra Vires.-Corporation is liable for money borrowed for payment of expenses incidental to ultra vires act, p. 287.

To same effect in Bank v. Railway Co., 117 Cal. 343, holding stockholders not affected by illegality of contract when right not based thereon; Holmes etc. Co. v. Metal Co., 127 N. WY. 259, 24 Am. St. Rep. 452, on point that corporation can sell its plant for stock in another corporation. Note citations: Carson etc. Bank v. Elevator Co., 30 Am. St. Rep. 458, on estoppel to plead ultra vires.

79 Cal. 288-297. ROMAN CATHOLIC ARCHBISHOP v. SHIPMAN. Adverse Possession must have been retained under claim of right and in hostility to legal title, p. 294.

To same effect in Peter v. Stephens, 11 Mont. 121, 28 Am. St. Rep. 450, holding term not to include mere trespass.

79 Cal. 297-300. WITHERS v. JACKS; 12 Am. St. Rep. 143.

Reversal upon Appeal of foreclosure decree because of defective findings as to priority of mortgages will not affect sale,

P. 300.

See note to Parker v. Courtnay, 26 Am. St. Rep. 362, on general subject.

Action to Quiet Title embraces every description of claim whereby plaintiff may be deprived of property, or its title clouded or value depreciated, p. 300.

To same effect in Clark v. Darlington, 7 S. Dak. 151, 58 Am. St. Rep. 837, as to claim under tax deed. Note citations: Lewis v. Lichty, 28 Am. St. Rep. 33, on cloud on title.

79 Cal. 301-303. MITCHELL v. HAWLEY.

Injunction Bond.-Counsel Fees are not recoverable in action in state court, although bond given in federal court, p. 302.

To same effect in Mulvane v. Tullock, 58 Kan. 634, although such damages not recoverable if suit brought on bond in federal court; dissenting opinion in Tullock v. Mulvane, 184 U. S. 516, majority holding bond given pursuant to federal law is to be construed according to federal and state law.

in case generally, p. 303.

Injunction Bond.-Counsel Fees are not allowable for services rendered To same effect in Lambert v. Haskell, 80 Cal. 625, restricting such fees to services rendered in dissolution of injunction; San Diego etc. Co. v. Steamship Co., 101 Cal. 221, denying fees where no motion made to dissolve preliminary injunction, and no dissolution had until final judgment; and see Coburn v. Tównsend, 103 Cal. 236, applying rule to condemnation proceedings; Curtiss v. Bachman, 110 Cal. 438, 42 Am. St. Rep. 113, denying fees for services prior to issuance of injunction; Black v. Hilliker, 130 Cal. 193, noted under Bustamente v. Stewart, 55 Cal. 115; Trester v. Pike, 60 Neb. 514, denying fees accordingly.

General Citation.-Elliott v. Missouri etc. Ry. Co., 77 Mo. App. 662.

79 Cal. 304-312. IN RE BAUER.

Marital Property.-Property acquired partly with separate and partly with community funds becomes separate and community property respectively proportionately, p. 309.

To same effect in Heney v. Pesoli, 109 Cal. 60, when deed taken in name of wife after amendment of 1889. Note citations: Dixon v. Sanderson, 13 Am. St. Rep. 805, and Flournoy v. Flournoy, 21 Id. 44, on general subject.

Separate Property includes property purchased with separate funds acquired before marriage, p. 310.

To same effect in Estate v. Boody, 119 Cal. 405, as to pre-emption claim initiated before marriage, but not consummated until thereafter. See, also, notes cited above.

Privileged Communications-Attorney.-Communications as to common agent of several parties are not privileged as between such parties, p. 312.

To same effect in Murphy v. Waterhouse, 113 Cal. 470, 54 Am. St. Rep. 366, and Haley v. Bank, 21 Nev. 139, as to transactions between parties in attorney's presence; Ruiz v. Dow, 113 Cal. 498, as to communications between husband and attorney in presence of wife concerning deed between them; Harris v. Harris, 136 Cal. 385, admitting certain evidence; Livingston v. Wagner, 23 Nev. 58, as to communications to common attorney for all parties; Minard v. Stillman, 31 Oreg. 167, 65 Am. St. Rep. 817, applying rule in action by one client against common attorney. Note citations: O'Brien v. Spalding, 66 Am. St. Rep. 224, 225, on general subject.

79 Cal. 313-317. IN RE KOHLER.

Undue Influence as to Wills is governed by same rules as to undue influence in contracts, p. 316.

Cited in Estate of Benton, 131 Cal. 477, as to fraud and holding fraud not established; Penn etc. Co. v. Union Trust Co., 83 Fed. Rep. 896, holding such influence not shown under facts as to obtaining assignment of life insurance policy. Note citations: Waddington v. Buzby, 14 Am. St. Rep. 711, on general subject.

Appeal.-Verdict will be affirmed when evidence conflicting, p. 317.

See note to Savannah etc. Co. v. Flannagan, 14 Am. St. Rep. 188, on review of evidence.

79 Cal. 317-322. LOVELAND v. GARDNER.

Fences.-Negligence may be predicated of construction of in improper manner, to injury of animals, p. 320.

To same effect in Brown v. Cooper, 10 Tex. Civ. App. 514, holding such negligence shown by facts; and Foster v. Swope, 41 Mo. App. 144, ruling similarly and construing local fence law; Winkler v. Carolina etc. Co., 126 N. C. 372, 78 Am. St. Rep. 664, holding railway company liable for injury to stock, under facts stated; Kuhnert v. Angell, 10 N. Dak. 63, but holding owner not liable for negligence of subagent in construction of the fence. Note citations: McIntire v. Roberts, 14 Am. St. Rep. 436, on negligence; Lowe v. Guard, 54 Am. St. Rep. 514, on general subject.

Instructions bind jury whether correct or not, p. 321.

To same effect in Murray v. Heinze, 17 Mont. 364, vacating verdict in disregard thereof.

New Trial was ordered on remand for excessive verdict unless plaintiff should consent to waiver of part, p. 322.

Cited in support of general rule in Davis v. S. P. Co., 98 Cal. 18.

79 Cal. 323-332. JENNINGS v. BANK OF CALIFORNIA; 12 Am. St. Rep. 145.

Lien on Stock may be created in favor of corporation by its contract with stockholder on loan to him, although possession not transferred, p. 325.

To same effect in Ranch etc. Co. v. Herberger, 82 Cal. 603, but holding no such lien shown under facts for balance of subscription; National Bank v. Bank, 97 Iowa, 210, holding lien created by by-law (but see Loan etc. Co. v. Bank, Id. 675, holding lien waived); Bank v. Kerdolff, 75 Mo. App. 301, 303, holding assignee bound by such lien; Bronson etc. Co. v. Rheubottom, 122 Mich. 611, but holding innocent purchaser not affected thereby; Costello v. Brewing Co., 69 N. H. 409, sustaining bylaw as to such lien; Stafford v. Banking Co., 61 Ohio St. 168, 76 Am. St. Rep. 373, sustaining lien as against one who does not transfer stock on books until after loan, though having received it before. Note citations; Bank v. Durfee, 40 Am. St. Rep. 405, on general subject; Bloede Co. v. Bloede, 57 Id. 391, 395, on stock transfers.