VOLUME LXXVI.

76 Cal. 1-6. BUTTE COUNTY v. MORGAN.

Offices of Treasurer and Tax Collector are separate and distinct although held by same person, p. 2.

To same effect in People v. Burkhart, 76 Cal. 607, as to sheriff and tax collector, discussing liability on bond.

Taxation.-Treasurer's Receipt to auditor is admissible as against sureties as evidence of fact of payment, p. 3.

To same effect in San Luis Obispo v. Pettit, 100 Cal. 445, as to license tax, and further holding treasurer estopped thereby. Note citations; Coleman v. Pike Co., 3 Am. St. Rep. 749, and Crawn v. Commonwealth, 10 Id. 855, on effect of official receipts.

76 Cal. 6-7. WRISTEN v. CURTISS.

Release of one co-obligor on note does not release the others, p. 7. Cited in Aigeltinger v. Whelan, 133 Cal. 113, noted under Urton v. Price, 57 Cal. 270.

76 Cal. 8-10. HEILBRON v. CENTERVILLE ETC. DITCH CO.

Insufficiency of Evidence is not reviewable without specification of particulars, p. 10.

To same effect in Bardwell v. Anderson, 18 Mont. 530, holding specification insufficient.

76 Cal. 11-18. HEILBRON v. KINGS RIVER ETC. CO.

Cross Complaint is not allowable in actions for tort, p. 15.

Overruled in Van Bibber v. Hilton, 84 Cal. 589, 590, allowing affirmative relief in action to enjoin diversion of water.

Diversion of Water from riparian owner will be restrained by injunction, irrespective of diversion by others than defendant, p. 17.

Approved in California etc. Co. v. Enterprise etc. Co., 127 Fed. 742, lessee may restrain diversion of water of stream above his land, though 3675

injury incapable of estimation in damages. Note citations: Ulbricht v. Water Co., 11 Am. St. Rep. 79, and Ferguson v. Firmenich etc. Co., 14 Id. 324, on general subject.

76 Cal. 18-23. CITY AND COUNTY OF SAN FRANCISCO v. HOLLADAY; S. C. see People v. Holladay, 93 Cal. 241; 27 Am. St. Rep. 186, and note, 197, citing main case passim; and San Francisco v. Mooney, 106 Cal. 587.

Judgment in Action to Quiet Title is bar to subsequent action between same parties involving same titles, p. 22.

To same effect in San Francisco v. Itsell, 80 Cal. 60, as to such action by grantor of party in second suit. Note citations: Hawk v. Evans, 14 Am. St. Rep. 252, on res adjudicata.

76 Cal. 24-26. BURHAM v. SAN FRANCISCO ETC. CO.

Stockholder held not entitled to sue for dissolution of corporation on facts stated, p. 25.

Cited in People v. Rosenstein etc. Cigar Co., 131 Cal. 157, denying dissolution for illegal levy of assessments. Note citations: Rothwell v. Robinson, 12 Am. St. Rep. 610, on general subject.

76 Cal. 29-43.

PEOPLE v. CENTRAL PACIFIC RAILROAD CO.

Damages. Penalty and liquidated damages distinguished, p. 34. To same effect in Smith v. Newell, 37 Fla. 154, holding agreement to contemplate penalty and not liquidated damages.

Demurrer.-Order sustaining may be affirmed upon ground not given by trial court, p. 43.

Cited in Sechrist v. Rialto Irr. Dist., 129 Cal. 643, denying right of court to limit its order on demurrer by sustaining and overruling it as to several grounds stated.

76 Cal. 44-50. NOONAN v. NUNAN.

Notice of Appeal may be filed on day after service, p. 46.

Cited in San Francisco etc. Co. v. State, 141 Cal. 358, noted under Hewes v. Carville Mfg. Co., 62 Cal. 516; Robinson v. Templar Lodge, 114 Cal. 41, on point that statute does not specify time for filing after service.

76 Cal. 50-55. MENK v. HOME INSURANCE CO. 9 Am. St. Rep. 158.

Insurance.-Misrepresentations in application will not avoid policy if known to be such by company's agent when making out same, p. 53.

Cited in Bayley v. Employers' etc. Corp., 125 Cal. 349, noted under

Kruger v. Western etc. Ins. Co., 72 Cal. 91; Pelzer etc. Co. v. Sun Fire Office, 36 S. Car. 273 (cited in Graham v. Insurance Co., 48 S. Car. 223; 59 Am. St. Rep. 716), admitting evidence of agent's knowledge as to title of insured property. Distinguished in Weidert v. Insurance Co., 19 Oreg. 272; 20 Am. St. Rep. 815, holding representation of agent on making of application binding only when within his authority. Note citations: Wheaton v. Ins. Co., 9 Am. St. Rep. 232, 234; Queen etc. Co. v. Young, 11 Id. 57; Newman v. Ins. Assn., 14 Id. 204; Philadelphia etc. Co. v. Assurance Co., 19 Id. 598; Griffith v. Ins. Co., 40 Id. 106, and Wood v. Ins. Co., 52 Id. 737. on waivers of conditions in policies; Baker v. Ins. Co., 14 Id. 493, on agent's misrepresentations; Follette v. Mutual etc. Assn., 28 Id. 696, and Haire v. Ins. Co., 32 Id. 519, on notice to, and knowledge of, agent.

Insurance.-Description in policy held to include cellar mentioned in application, p. 54.

Note citations: Sanders v. Cooper, 12 Am. St. Rep. 808, on general subject.

Error in Admitting Evidence is not reversible where not prejudicial, p. 55.

Note citations: Dillingham v. Russell, 15 Am. St. Rep. 762, on nonreversible errors; Cronfeldt v. Arrol, 36 Id. 650, on general subject.

Specification of Particulars of Insufficiency of evidence is erroneous when general, p. 55.

To same effect in Kumle v. Grand Lodge, 110 Cal. 214, holding specification improper. Note citations: Savannah etc. Co. v. Flannagan, 14 Am. St. Rep. 188, on review of evidence on appeal.

76 Cal. 56, 57. ROBINETT v. CONNOLLY.

Attachment.-Sheriff cannot be required to release levy until keeper's fees paid, p. 56.

To same effect in Perrin v. McMann, 97 Cal. 54, further holding as to payment in case of successive sheriffs.

76 Cal. 57-59. PEOPLE v. CURTIS.

Larceny is not included in burglary, p. 58.

Cited in People v. Devlin, 143 Cal. 130, noted under People v. Garnett, 29 Cal. 628.

Once in Jeopardy does not apply in case of dismissal of jury with defendant's consent, p. 59.

Cited in People v. Arnett, 129 Cal. 307, but ruling aliter where no such consent appeared on minutes; People v. Kerm, 8 Utah, 271, as to new trial granted on defendant's motion.