76 Cal. 235-239. SIERRA MILLING ETC. CO. v. HARTFORD ETC. CO. Insurance-Warranty to Keep Watchman.-Insured is not liable for watchman's negligence, p. 237.

Distinguished as dictum in McKenzie v. Insurance Co., 112 Cal. 559, holding insurer not liable where watchman's service was insufficient. Followed in Phoenix etc. Co. v. Coffman, 10 Tex. Civ. App. 634, holding condition fulfilled by insured; McGannon v. Michigan etc. Fire Ins. Co., 127 Mich. 646.

76 Cal. 240-242. CLEARY v. CITY RAILROAD CO.

Damages for Death of Child through negligence may include mental anguish and suffering of parent, p. 241.

Overruled in Morgan v. S. P. Co., 95 Cal. 518; 29 Am. St. Rep. 146, confining damages to actual pecuniary injury, and see Webb v. Denver etc. Co., 7 Utah, 20, 22, 23, where denied. Note citations: West v. Telegraph Co., 7 Am. St. Rep. 535, and Louisville etc. Co. v. Goodykoontz, 12 Id. 376, 383, on general subject.

Erroneous Instruction Improperly Limiting Jury in determining damages is presumed erroneous, p. 242.

Approved in Holt v. Spokane etc. Ry., 3 Idaho, 718, following rule.

76 Cal. 251-255. DODGE v. YATES.

Ejectment.-Constructive Possession of public land by grantee thereof is shown as against trespasser by actual possession of part, p. 254.

To same effect in Neuebaumer v. Woodman, 89 Cal. 315, as to mining claim, when plaintiff and defendant have each failed to mark boundaries.

76 Cal. 255-257. RANDALL v. HUNTER.

Partner may issue firm note for individual debts when so agreed, p.

257.

See note to Farwell v. Trust Co., 22 Am. St. Rep. 748, on general subject.

76 Cal. 257-259. McDONALD v. SWETT.

Time to Plead is not extended by pendency of motion to dismiss, p.

259.

To same effect in Higley v. Pollock, 21 Nev. 209, ruling similarly as to motion to quash summons.

Amendment of Complaint after default is allowable for correction of name of defendant, p. 259.

To same effect in Bennett v. Seibert, 10 Ind. App. 385, as to correction of name of party in assignment of errors.

Estoppel in Pais requires that party sought to be estopped should have acted with express intent to deceive, or culpable negligence, p. 262.

See note to Cook v. Walling, 10 Am. St. Rep. 21, on general subject.

76 Cal. 264-268. KNOX v. HIGBY.

Variance cannot be first asserted on appeal, p. 268.

Cited in Cushing v. Pires, 124 Cal. 665, noted under Dikeman v. Norris, 36 Cal. 94.

76 Cal. 269-281. PEOPLE v. REIS.

Intervention.-Judgment after issues joined upon petition cannot be first attacked on appeal on ground that intervention was improper, p. 273.

To same effect in Newman v. Bullock, 23 Colo. 224, where no objection raised below.

Delinquent Taxes.-Penalty and interest are not payable to county generally, p. 276.

To same effect in Tacoma etc. Dist. v. Hedges, 13 Wash. 70, construing local act; Prowers Co. v. People, 17 Colo. App. 521, where interest and penalties on delinquent state tax have been collected by county treasurer and retained by county, action may be maintained by state against county for their recovery.

76 Cal. 281-286. PEOPLE v. COX.

Oral Charge is not error because of reporter's failure to take down portion, when portion omitted was merely preliminary to instruction given and reported, p. 282.

To same effect in People v. Leary, 105 Cal. 497 (but see dissenting opinion, 500), as to answers to questions of jury, where defendant not prejudiced.

Murder in First Degree must be wilful, deliberate, and premeditated. p. 285.

To same effect in People v. Bowman, 81 Cal. 567, but holding elements determinable by jury.

Murder in Second Degree is killing with malice aforethought alone, p. 285.

To same effect in State v. Norwood, 115 N. Car. 792; 44 Am St. Rep. 499, holding proof of deliberation or premeditation unnecessary therefor, and see State v. Fuller, 114 N. C. 900.

76 Cal. 291-294. MARYE v. HART.

Agreement is not void that mortgagee pay tax on land and include same in his security, p. 293.

To same effect in Harralson v. Barrett, 99 Cal. 608, but ruling aliter as to like agreement for payment of taxes on mortgage or money secured thereby; Longmaid v. Coulter, 123 Cal. 218, and Bank of Ukiah v. Reed, 131 Cal. 604, sustaining similar agreements.

76 Cal. 294-299. PEOPLE v. ROACH.

Escheat.-Proceeding is premature if brought within five years after death, p. 296.

Cited in Estate of Porter, 129 Cal. 90, 79 Am. St. Rep. 82, discussing validity and effect of section 1536, Code of Civil Procedure; Estate of Pendergast, 143 Cal. 140, noted under Lyons v. State, 67 Cal. 384; State v. Stevenson, 6 Idaho, 370, if succession is not claimed by nonresident foreigner within five years after decedent's death, real estate owned by decedent escheats to state.

Escheat-Disposition of Property.—Procedure as to, stated, p. 298. Cited in Estate of Miner, 143 Cal. 199 (cf. dissenting opinion, page 206), discussing necessity for action of escheat by the state.

General Citation: State v. Second Judicial District Court, 25 Mont.

364.

76 Cal. 299-303. SWAIN v. BURNETTE.

Appeal.-Order striking out part of complaint is not directly appealable, p. 302.

To same effect in Cleland v. Walbridge, 78 Cal. 359, as to order striking out amended complaint, further holding bill of exceptions necessary on review by appeal from judgment. Note citations: Davie, 20 Am. St. Rep. 173, on general subject.

76 Cal. 309-312. KELLY v. LUNING.

Davie v.

Street Assessment is invalid under act of 1872 for street crossings formed by intersection of diagonal streets, p. 311.

To same effect in Boyle v. Tibbey, 82 Cal. 13, but ruling aliter as to sewer on such street, but not reaching intersection.

76 Cal. 315-318. ARENDT v. MACE; 9 Am. St. Rep. 207.

Homestead May Include land contiguous to residence property and used as garden, p. 316.

To same effect in Watterson v. Bonner Co., 19 Mont. 557, 61 Am. St. Rep. 528, as to fences and other improvements. Note citations:

Linn etc. Bank v. Hopkins, 27 Am. St. Rep. 311; Cameron v. Gebhard, 34 Id. 838; Hodges v. Winston, 36 Id. 244; on general subject.

Homestead is creatable on land partly wife's separate, and partly community property, p. 317.

Cited in Chapman v. White etc. Co., 78 Miss. 442, construing local statute. See note 8 Am. St. Rep. 855.

76 Cal. 318-322. DIGGINS v. BROWN.

Street Assessment District includes all property fronting on work to be done, p. 321.

To same effect in In re Madera etc. District, 92 Cal. 327, 27 Am. St. Rep. 128, discussing method of assessment for irrigation district; McSherry v. Wood, 102 Cal. 650, but restricting rule to proceedings under act of 1872; San Diego etc. Co. v. Shaw, 129 Cal. 275, similarly construing Vrooman act; Independence v. Gates, 110 Mo. 386, holding property assessable according to frontage, and holding tax deed void.

Street Assessment is Void where property omitted that was properly taxable, p. 322.

To same effect in Davies v. Los Angeles, 86 Cal. 49, enjoining tax sale thereon; Ryan v. Altschul, 103 Cal. 178, holding entire assessment void when void on face for this reason; and see page 177, where case again cited as to remedy by appeal to supervisors.

76 Cal. 323-324. LARKIN v. LARKIN.

Appeal does not Lie from order refusing to set aside prior appealable order, p. 323.

To same effect in Goyhinech v. Goyhinech, 80 Cal. 409, as to order refusing to vacate judgment because no findings filed; Kubli v. Hawkett, 89 Cal. 640, as to order refusing to set aside judgment of dismissal; and on same point Insurance Co. v. Weber, 2 N. Dak. 246; In re Get Young, 90 Cal. 78, as to order refusing to revoke order for letters of guardianship; Wickersham v. Comerford, 96 Cal. 440, as to order refusing to vacate order for probate homestead; Harper v. Hildreth, 99 Cal. 269, as to order refusing to vacate certain nonappealable orders. Note citations: Davie v. Davie, 20 Am. St. Rep. 173, on general subject.

Order is not Reviewable when affidavits used on motion are not identified or included in bill or statement, p. 324.

Cited in Pereira v. City Savings Bank, 128 Cal. 47, declining to review new trial order when bill of exceptions was improperly settled; Ramsbottom v. Fitzgerald, 128 Cal. 77, holding certificate of judge not sufficient to identify affidavits used; Skinner v. Horn. 144 Cal. 280, noted under Nash v. Harris, 57 Cal. 242; Herrlich v. McDonald, 80 Cal.

476 (cited in Somers v. Somers, 81 Cal. 609), as holding that certificate of judge is sufficient; Fitzpatrick v. Fitch, 83 Cal. 491, on point that certificate of clerk to transcript is insufficient as authentication; Melde v. Reynolds, 120 Cal. 236, holding certain affidavits on motion for new trial not properly authenticated.

76 Cal. 328-353. PEOPLE v. GOLDENSON.

Change of Venue in criminal case is in discretion of trial judge, p. 339. To same effect in People v. Elliott, 80 Cal. 298, holding no abuse shown on denial, and Hawes v. State, 88 Ala. 57, 59, and State v. Carrington, 15 Utah, 484, ruling similarly.

Change of Venue is Properly Denied when motion not renewed after conditional denial and leave to renew granted, p. 339.

Cited to same effect in People v. Fredericks, 106 Cal. 558, 559, but holding change properly grantable under facts; People v. Suesser, 132 Cal. 635, out granting change when motion renewed.

Continuance is within discretion of court, p. 341.

To same effect in Baumberger v. Arff, 96 Cal. 262, sustaining granting upon terms under facts; People v. Warren, 130 Cal. 681, holding further continuance to procure counsel properly refused.

Grand Jury.—Irregularities in impanelment cannot be considered on motion to set aside indictment, p. 345.

To same effect in Bruner v. Superior Court, 92 Cal. 267, on point that appeal does not lie for such irregularities.

Challenge to Grand Jury will not lie for failure to notify defendant of its investigation nor to permit him to introduce evidence, p. 345. Note citations: Commonwealth v. Green, 12 Am. St. Rep. 907, on general subject.

Criminal Law.-Defendant may be required to stand during trial, for identification by witness, p. 347.

Cited in People v. Oliveria, 127 Cal. 381, affirming similar procedure. Evidence.-Medical Books are not admissible except for cases of impeachment, p. 348.

Cited in Baily v. Kreutzman, 141 Cal. 522, noted under People v. Wheeler, 60 Cal. 581.

Leading Questions to prosecuting witness are within discretion of court, p. 349.

Cited in People v. Harlan, 133 Cal. 19, permitting such questions in rape case.

Witness-Prejudice.—Particular reasons for prejudice cannot be inquired into, p. 349.