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Cited in Dyas v. Southern Pac. Co., 140 Cal. 308, as to instruction upon allegation of complaint admitted by answer,
76 Cal. 489-494. BANK OF HEALDSBURG v. HITCHCOCK.
Notice of Motion for New Trial will be presumed given where order denying motion was not based on its absence, p. 493.
To sa me effect in Randall v. Duff, 79 Cal. 123, holding giving of such notice sufliciently shown by order of denial.
76 Cal. 494-197. ORDER OF MUTUAL COMPANIONS V. GRIEST.
S. C. see ESTATE OF GRIEST, 76 Cal. 497, 498. Benefit Association.-Heirs of deceased wife of member, not nominated by him, cannot contest distribution of endowment, p. 496.
To same effect in Hoeft v. Supreme Lodge, 113 Cal. 56, on point that beneficiaries under first nomination cannot attack change of beneficiaries by member; Ingersoll v. Knights, 47 Fed. Rep. 274, on point that contract is not void as against public policy because beneficiary has no vested interest; Hancock etc. Co. v. Lawder, 22 R. I. 417, on point that question of insurable interest can be raised by the insurer alone. Note citations: Newman v. Covenant etc. Assn., 14 Am. St. Rep. 204, on life insurance; Bankers' etc. Assn. v. Stapp, 19 Id. 789, and Lake v. Minnesota etc. Assn., 52 Id. 564, on general subject.
76 Cal, 497-498. ESTATE OF GRIEST.
Benefit Association.-Wife held entitled to proceeds of policy under facts, p. 498. See note to Lake v. Minnesota etc. Assn., 52 Am. St. Rep. 571, on general subject.
76 Cal. 508-511. WEITHOFF v. MURRAY.
Employment of Servant terminates at notice of master's death, p 509. See note to East Line etc. Co. v. Scott, 13 Am. St. Rep. 768, on general subject.
76 Cal. 511-513. MCCLOSKEY v. KRELING.
Municipal Ordinance is valid creating fire limits for erection of wooden buildings, p. 512.
Cited in Odd Fellows' Cem. Assn. v. San Francisco, 140 Cal. 231, noted under Ex parte Shrader, 33 Cal. 284. Note citations: Kaufman v. Stein, 46 Am. St. Rep. 375, on general subject.
Nuisance.-Private Suit will not lie in reference to public nuisance unless special damage shown, p. 513.
To same effect in Bank v. Sarlls, 129 Ind. 204, 28 Am. St. Rep. 187, but sustaining injunction against rebuilding of wooden buildings, under
facts; but see on last point, Rice v. Jefferson, 50 Mo. App. 468, denying right to enjoin erection of wooden building simply because in contra. vention of ordinance; Siskiyou etc. Co. v. Rostel, 121 Cal. 513, as to house overkanging sidewalk.
76 Cal. 514-521. EX PARTE KIRBY.
Consecutive Sentences may be imposed, and second need not be ex. pressly designated at termination of first, p. 519.
To same effect in In re Esmond, 42 Fed. Rep. 829, sustaining such
76 Cal. 521-523. PEOPLE V. MADDEN.
Instruction may be refused when already given, p. 522.
To same effect in People v. Elliott, 119 Cal. 594, when already substantially given.
Jury must determine on facts and render verdict in accordance with instructions given, p. 522.
To same effect in Sparf v. United States, 156 U. S. 86, on point that jury is not judge of law.
Refusal to Give Instruction as to grade of crime is not error where evidence shows commission of another grade, p. 523.
To sa me effect in People v. O'Brien, 88 Cal. 491, as to refusal to charge on larceny when evidence showed only robbery, which was alleged; People v. Scott, 93 Cal. 517, and People v. McNutt, 93 Cal. 659, as to refusal to charge on simple assault, where facts showed intent to murder; People v. Wright, 93 Cal. 568, sustaining general charge on prosecution for mayhem; People v. Stanton, 106 Cal. 142, as to refusal to charge on simple assualt where malicious throwing of vitriol shown; People v. Swist, 136 Cal. 524, quoting People v. McNutt, 93 Cal. 658; People v. Repke, 103 Mich. 470, sustaining charge that defendant was guilty of murder in first degree if at all. Note citations: Patterson v. State, 21 Am. St. Rep. 156, on assault with intent to kill.
76 Cal. 524-527. SCHUYLER v. BROUGHTON.
Value in Homestead Declaration may be stated as “not to exceed sixteen hundred dollars," p. 525.
To same effect in Southwick v. 'Davis, 78 Cal. 508, as to similar form of statement.
Homestead Statute is remedial and should be liberally consruted, p. 525.
To same effect in Heathman v. Holmes, 94 Cal. 296, sustaining homestead, although building used partly for business purposes; Quackenbush v. Reed, 102 Cal. 499, holding recording of declaration unnecessary;
Simonson v. Burr, 121 Cal. 585, holding declaration sufficient. Note citations: Mitchelson v. Smith, 26 Am. St. Rep. 360, on general subject.
76 Cal. 527-532. BECK v. SOWARD.
Acknowledgment of Homestead Declaration by wife must follow section 1186, Civil Code, p. 529.
To same effect in Kennedy v. Gloster, 98 Cal. 148, holding homestead not created unless acknowledgment so certified; Burbank v. Kirby, 6 Idaho, 213, declaration of homestead on community property by mar. ried woman, certificate of acknowledgment of which does not comply with statute, is void.
Homestead on Wife's Property descends to her heirs on her death, 531.
See note to Sanders v. Russell, 21 Am. St. Rep. 29, on general subject.
76 Cal. 532-534. BUNDY V. MAGINESS.
Assault.-Exemplary Damages are recoverable for when oppressive or malicious, p. 534.
See note to Beck v. Thompson, 13 Am. St. Rep. 874, and Spellman v. Railroad Co., 28 Id. 870, 882, on general subject.
76 Cal. 535-537. BURNETT V. KULLAK,
Specific Performance will be denied when contract is indefinite and uncertain, p. 537.
To same effect in Breckinridge v. Crocker, 78 Cal. 536, applying rule to action for damages for breach of such contract. Omaha Loan etc. Co. v. Goodman, 62 Neb. 204.
76 Cal. 537-542. TREGEAR v. ETIWANDA WATER CO.; I Am. St.
Corporate Stock is personal property, p. 539.
Approved in George v. Robison, 23 Utah, 83, water rights represented by shares in water company are personalty and water represented thereby is not appurtenant to land upon which water is used, and shares may be sold independent of land. See note 57 Am. St. Rep. 379.
Mortgage is Valid, although including realty and personalty, and lat. ter is not delivered, p. 540.
To same effect in Breweries v. Schurtz, 104 Cal. 426, sustaining such mortgage, althoug] part of personalty was not mortgagable.
Mortgage of Personalty is good between parties, although not of class iuciuded in section 2955, Civil Code, p. 540.
To same effect in Works v. Merritt, 105 Cal. 470, holding such mortgage good also as to subsequent purchasers, et cetera, with notice, al. though not formally executed as chattel mortgage; see on same point, bank v. Moore, 106 Cal. 680; Bank v. Gibson, 109 Cal. 199, sustaining (as in last case) mortgage of cattle, not embraced by then act.
76 Cal. 543-544. IN RE FOOTE.
Contempt in presence of court cannot be punished in proceedings begun fitty days thereafter and without notice, p. 544.
See note to Ex parte Robertson, 11 Am. St. Rep. 214, on general subject.
76 Cal. 545-555. WOOD v. STROTHER; 9 Am. St. Rep. 249.
Mandamus will Lie to control judicial discretion where determination is not intended to be final, p. 554.
To same effect in Raisch v. Board, 81 Cal. 547 (but see dissenting opinion, 550), issuing writ to compel board of education to draw draft for supplies when refusal without semblance of cause; and see State v. Mayor, 19 Mont. 540, ruling similarly; Fairchild v. Wall, 93 Cal. 405, but denying writ to compel street superintendent to enter into contract, where refusal was final under statute; Hunt v. Broderick, 104 Cal. 315, granting writ to compel auditor to audit claim when valid and legal and properly allowed by supervisors; and see State v. Commissioners, 22 Nev. 78, on similar facts; Keller v. Hewitt, 109 Cal. 148, granting writ when act merely ministerial; Hensley v. Superior Court, 111 Cal. 544, granting writ to compel probate judge to sign decree of due notice to creditors: dissenting opinion; People v. Superior Court, 114 Cal. 479, main opinion denying writ to compel entry of default judgment in quo warranto proceedings: Rundberg v. Belcher, 118 Cal. 590, but denying writ to compel substitution of attorneys; Sullivan v. Gage, 145 Cal. 767, denying mandamus to compel state board of examiners to audit claim of attorney for receiver in action by state to dissolve corporation, where board had repeatedly rejected it; Kerr v. Superior Court, 130 Cal. 187, noted under People v. Sexton, 24 Cal. 78; County of San Luis Obispo v. Gage, 139 Cal. 402, noted under People v. Supervisors, 45 Cal. 395; Raleigh v. District Court, 24 Mont. 314, 81 Am. St. Rep. 437, granting writ to compel court to take jurisdiction and proceed thereon; State v. Daggett, 28 Wash. 14, mandamus lies to compel city comptrolled to issue warrants for officers whose salary is fixed by law; dissenting opinion in Hover v. People, 17 Colo. App. 405, majority refusing to mandamus Denver council to make appropriation to pay license inspectors in accordance with fire and police board's esti. mate where inspectors not provided for in charter; dissenting opinion in Pyke v. Steunenberg, 5 Idaho, 626, majority holding while mandamus lies to require state board of examiners to pass upon a claim presented,
court cannot direct how such board shall act. State v. Board, 131 Ind. 93, but distinguishing cases where specific mode of action was directed; State v. Rickards, 16 Mont. 158, 50 Am. St. Rep. 485 (and note, 490), but denying writ to compel award of co ract "lowest” bidder, where not shown "responsible,” under facts; Huron v. Campbell, 3 S. Dak. 317, but denying writ to compel lower court to vacate injunction. Note citations: State v. Deane, 11 Am. St. Rep. 344, Brown v. Buck, 13 Id. 447, State v. Barnes, 23 Id. 525, and State v. Young, 34 Id. 48, on general subject. Distinguished in Payne v. State Board etc., 4 Idaho, 385, 386, mandamus does not lie to direct board of state highway commissioners to allow a claim already rejected by the board.
Street Assessment may be made within reasonable time after first declared void, p. 547.
Cited in Ede v. Cuneo, 126 Cal, 169, 174, noted under Himmelmann v. Cofran, 36 Cal. 411; Flewellin v. Proetzel, 80 Tex, 197, sustaining engineer's amended report.
General Citation.-State v. Higgins, 76 Mo. App. 328.
76 Cal. 555-562. HAYS v. STEIGER.
Mexican Grant.-Agua Caliente grant construed, p. 558.
Cited in Nason v. Lingle, 143 Cal. 366, noted under Green v. Coviliaud, 10 Cal. 317.
76 Cal. 562-565. LOVELAND V. ALVORD CONS. Q. M. CO.
Attachment is Dissolved by judgment for defendant, p. 564.
Cited in Hamilton v. Bell, 123 Cal. 95, as to judgment on nonsuit, despite its subsequent reversal on appeal; Aigeltinger v. Whelan, 133 Cal. 113, noted under O'Connor v. Blake, 29 Cal. 316; Ranft v. Young, 21 Nev. 403, holding it not kept alive by pendency of motion for new trial; Meloy v. Orton, 42 Fed. Rep. 517 (Wisc.), construing local act as to effect of appeal thereon.
76 Cal. 567-569. BERNHEIM v. CHRISTAL.
Fraudulent Conveyances.-Transfer out of usual course of business is only prima facie evidence of fraud, p. 568.
To same effect in Grunsky v. Parlin, 110 Cal. 182, on point that presumption is rebuttable, and sustaining transfer because of innocence of transferee; and see Matthews v. Chaboya, 111 Cal. 438, where, as in the main case, findings of validity of sale were sustained on conflict of evidence.