Preference is not Fraudulent under insolvency act, where transferee had no fraudulent intent, p. 569.

To same effect in Haskin v. James, 96 Cal. 260, sustaining such transfer under facts; Greenwalt v. Mueller, 126 Cal. 639, sustaining deed under facts stated.

Order Granting New Trial will be affirmed where evidence conflicting, p. 569.

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

76 Cal. 569-572. SCHEERER v. EDGAR.

Mandamus does not lie to compel auditor to draw warrant to assignee of judgment where he has drawn warrant to party ordered by supervisors, p. 571.

Approved in Sullivan v. Gage, 145 Cal. 567, denying mandamus to compel state board of examiners to audit claim they had rejected.

76 Cal. 573-576. PEOPLE v. BROWN.

Error in Allowing Questions is immaterial when answers render such error not prejudicial, p. 574.

Distinguished in People v. Mullings, 83 Cal. 146, 17 Am. St. Rep. 229, reversing judgment where such questions were prejudicial to defendant, as presenting "before the jury the assumption of damaging facts which could not be proven."

Homicide.-Evidence is admissible of threats made by defendant against decedent several years prior to killing, p. 574.

To same effect in People v. Chaves, 122 Cal. 143, admitting such evidence as tending to show malice; State v. Shafer, 26 Mont. 19, in murder prosecution, evidence of previous conflict at another place is admissible to show malice. Note citations: Campbell v. Commonwealth, 21 Am. St. Rep. 355, and Stitt v. State, 24 Id. 856, on evidence of threats.

76 Cal. 578-587. MALONE v. BIG FLAT ETC. CO. S. C. 93 Cal. 384386.

Mechanics' Liens.-Variance between statements of notices and complaint is ground of demurrer for ambiguity and rejection of evidence, p. 581.

To same effect in Palmer v. Lavigne, 104 Cal. 33, 34, as to allegations of form and parties to contract; Santa Monica etc. Co. v. Hege, 119 Cal. 380, as to allegations of terms of contract; San Francisco Pav. Co. v. Fairfield, 134 Cal. 224, on point that claimant can recover only on contract stated in his claim.

Liens on Mines.-Several claims operated together by one owner may

be considered as one piece of property under mechanics' lien law, p. 582.

To same effect in Hamilton v. Mining Co., 118 Cal. 151, sustaining claim filed against property as a whole.

Mechanics' Liens.-Decree can adjust respective rights of parties, p.

583.

To same effect in Bewick v. Muir, 83 Cal. 372, as to lien upon ground as a "mine," which is only partly mineral.

Notice of Lien is sufficient if substantially in compliance with statute as to name of employer, p. 585.

To same effect in Hagman v. Williams, 88 Cal. 151, sustaining notice, and further holding as to admission of evidence as to manner in which work done; Wagner v. Hansen, 103 Cal. 107, but holding notice insufficient as to statement of terms of contract. Cited also in Little Rock etc. Co. v. Spencer, 65 Ark. 203, on point that it is not necessary to show that claimant did work personally.

Mechanic's Lien may be asserted by blacksmith who does work on tools and machinery used in developing mine, p. 585.

Cited in McClain v. Hutton, 131 Cal. 138, as to one employed by contractor to haul materials used in construction of building; French v. Powell, 135 Cal. 644, noted under McCormick v. Los Angeles etc. Co., 40 Cal. 185; Costagnetto v. Coppertown Min. etc. Co., 146 Cal. 33, where lien is on "mining claim," and court finds work done "in and upon said mines" objection that notice states work was performed "on that certain copper mine," is immaterial.

Mechanics' Liens.-Claim is valid to extent of lienable items, although other items added thereto, p. 586.

To same effect in Gordon etc. Co. v. Railroad Co., 86 Cal. 622, but excepting case where such addition was willfully false; Snell v. Payne, 115 Cal. 222, as to slight overcharge, covering cost of barrels wherein lime was packed; Maynard v. Ivey, 21 Nev. 245, discussing sufficiency of statement of lien.

Mechanics' Liens.—Laborer working by the month need not file lien for each separate month, p. 586.

Cited in Ah Louis v. Harwood, 140 Cal. 505, sustaining claim as filed.

Miscellaneous.—Fields v. Daisy G. Min. Co., 25 Utah, 86, part payment and settlement do not necessarily defeat running nature of an account upon which a lien is filed.

76 Cal. 587-588. EX PARTE LANE.

Municipal Ordinance is valid that prohibits visiting gambling places, p. 588.

To same effect in In re Ah Kit, 45 Fed. Rep. 794, where prohibition restricted to specified district.

76 Cal. 589-590. VAN EMON v. SUPERIOR COURT; 9 Am. St. Rep. 258.

Funeral Expenses allowable out of estate include cost of erection of monument at grave, p. 589.

See note to Galloway v. Estate of McPherson, 11 Am. St. Rep. 597, on husbands liability for wife's funeral expenses; Webb's Estate, 44 Id. 671, on general subject.

76 Cal. 590-594. REQUA v. SNOW.

Specific Performance.-Laches of vendee will bar his right to, p. 593. See note to Hatch v. Kizer, 33 Am. St. Rep. 261, on general subject.

76 Cal. 594-596. MELLOR v. CROUCH.

Notice of Settlement of Statement need not be given by party when statement and amendments are delivered by him to clerk, p. 596.

To same effect in Horton v. Jack, 115 Cal. 35, further holding objection waived under facts.

76 Cal. 597-605. BLISS v. JOHNSON.

Riparian Rights.-Lower Owner cannot be deprived of flow by embankments built by upper owner to avert overflow, p. 603.

See note to Ulbricht v. Water Co., 11 Am. St. Rep. 79, and Ferguson v. Firmenich etc. Co., 14 Id. 324, on general subject.

76 Cal. 606-608. PEOPLE v. BURKHART.

Official Bond.-Action is barred in four years from default, p. 607. To same effect in People v. Weineke, 122 Cal. 539, holding action barred on bond of tax collector. Criticised in County of Sonoma v. Hall, 132 Cal. 597, noted under Higby v. Calaveras Co., 18 Cal. 180.

76 Cal. 608-609. SCHULTZ v. McLEAN.

Hearsay Evidence.-Declarations of party to his attorney in absence of adverse parties is inadmissible, p. 609.

See note to Wormsdorf v. Railway Co., 13 Am. St. Rep. 457, on general subject.

Final Judgment must pass upon rights of all defendants, p. 609.

To same effect in Champ v. Kendrick, 130 Ind. 346, holding a judgment not final for appeal purposes.

76 Cal. 610-615. LIGARE v. CALIFORNIA SOUTHERN RAILROAD CO.

Affidavit for Publication of Summons may refer to and make part of itself the complaint on file, although not verified, p. 612.

Cited in Ex Parte Yonetaro, 120 Cal. 318, but not deciding question; Cited in Pratt v. Stone, 25 Nev. 371, sustaining similar affidavit.

Affidavit for Publication held sufficiently to show diligence in inquiry as to defendant's residence, p. 613.

Cited in dissenting opinion, Dunlap v. Steere, 92 Cal. 355, 27 Am. St. Rep. 148, but main opinion vacating judgment because affidavit false. Judgment by Publication cannot be collaterally attacked for insufficiency of affidavit, p. 613.

Cited in People v. Wrin, 143 Cal. 13, denying motion to vacate judgment made over four years after its rendition.

76 Cal. 616-618. ARMSTRONG v. LOWE.

Real Estate Broker employed to "sell" land cannot execute contract to convey it, p. 617.

To same effect in Phelps v. Prusch, 83 Cal. 628, discussing his duties and right to commissions; Grant v. Ede, 85 Cal. 421, 20 Am. St. Rep. 238 (cited in Martin v. Ede, 103 Cal. 160), denying specific performance of such contract; and on same point, Campbell v. Galloway, 148 Ind. 447, and Carstens v. McReavy, 1 Wash. St. 364; McCullough v. Hitchcock, 71 Conn. 404, and Ballou v. Bergsvendsen, 9 N. Dak. 289, noted under Duffy v. Hobson, 40 Cal. 240; Brandrup v. Britten, 11 N. Dak. 379, 380, following rule; York v. Nash, 42 Or. 330, agent employed to sell property on commission is entitled to commission when he produces purchaser though no sale consummated owing to seller's refusal to sell. Note citations: Karns v. Olney, 13 Am. St. Rep. 112, on general subject.

76 Cal. 618-620. THOMPSON v. BRANNAN.

Findings are sufficient where ambiguity therein is due to erroneous capitalization and punctuation, p. 619.

See note to Gulf etc. Co. v. James, 15 Am. St. Rep. 753, on insignificant

errors.

Costs are not Allowable when cost bill improperly served, p. 620. To same effect in Crane v. Forth, 95 Cal. 91, where not served nor filed.

Attorney May Recover on quantum meruit when discharged without just cause, after rendition of necessary services, p. 622.

To same effect in French v. Cunningham, 149 Ind. 635, sustaining recovery, under facts stated.

Appeal.-Presumption is in favor of regularity of order, p. 623.

Note citations: McGowan v. Lufburrow, 14 Am. St. Rep. 183, on general subject.

Nonjoinder of Plaintiffs.-Partnership between plaintiff and another is not ground of nonsuit when firm not interested in contract sued on, p. 623.

To same effect in Williams v. Railroad Co., 110 Cal. 461, where nonjoinder not pleaded by defendant, although demand was due to firm.

76 Cal. 624-626. SAN FRANCISCO SAVINGS UNION v. MYERS. Appeal-Presumption.-None exists that judgment was by consent, p.

625.

See note to Randolf v. Bloomfield, 14 Am. St. Rep. 271, on general subject.

76 Cal. 626-632. BANK OF CALIFORNIA v. TAAFFE.

Forcible Entry.-Question of good faith in entry cannot be considered, p. 630.

Distinguished in Carteri v. Roberts, 140 Cal. 166, noted under Voll v. Hollis, 60 Cal. 569.

76 Cal. 633-639. PEOPLE v. FREESE.

S. C. 83 Cal. 455 (but see dis

senting opinion, 456, 457), where affirmed as stare decisis. Officers.-Removal cannot be made by governor alone when appointment required concurrence of senate, p. 634.

Cited in Parish v. City of St. Paul, 84 Minn. 430, 87 Am. St. Rep. 377, noted under People v. Cazneau, 20 Cal. 507. Distinguished under local statutes in Trimble v. People, 19 Colo. 195, 41 Am. St. Rep. 240, sustaining power of governor alone; but see Lease v. Freeborn, 52 Kan. Note citations: 754, denying governor's power, under local statutes. People v. Stuart, 16 Am. St. Rep. 648, on general subject.

Statutory Construction.-Code provisions must be construed as continuations of pre-existing statutes when not in conflict, p. 636.

To same effect in The Louis Olsen, 52 Fed. Rep. 653, construing provisions as to maritime liens.

76 Cal. 639-645. IN RE BURDICK.

Homestead vests absolutely in surviving spouse when selected from community property, p. 641.

To same effect in Bull v. Coe, 77 Cal. 63, 11 Am. St. Rep. 241, as to