COMMUNITY PROPERTY (Continued). interest cannot be classified as any species of estate known to the law. Estate of Burdick, 387. See DIVORCE, 2, 5, 6; ESTATES OF DECEASED PERSONS, 7. CONSIDERATION. See DEED. CONSPIRACY. See CORPORATIONS, 12. CONSTITUTIONAL LAW. 1. LIBERTY OF SPEECH-THEATRICAL REPRESENTATION OF FACTS OF CRIM. INAL CASE-JURISDICTION-CERTIORARI. An order of the superior court forbidding the representation upon the theatrical stage of the facts of a criminal case, pending the trial of such case, is an infringement of section 9 of article XI of the constitution of this state, which protects the right of the citizen to freely speak, write, and publish his sentiments, without censorship over him, he being responsible only at the hands of the law for an abuse of that right; and such order, being in excess of the jurisdiction of the superior court, will be annulled upon certiorari.-Dailey v. Superior Court, 94. 2. PERSONAL LIBERTY SPECIAL LEGISLATION-POLICE POWER CLOSING BARBER-SHOPS ON HOLIDAYS.- Section 310 of the Penal Code, enacted in 1895, making it a misdemeanor to keep open and conduct a barber-shop, or to work as a barber, on Sundays and other holidays, is an undue restraint of personal liberty, and is special legislation, base upon an arbitrary classification, and not a proper exercise of the police power, and is unconstitutional and void.-Ex parte Jentzsch, 463. See MUNICIPAL CORPORATIONS, 4, 11, 19, 21-23; TOLL ROADS, 1; CONTEMPT. PRACTICE. It is not proper practice for a court to command a person not to commit a contempt of court; though the court has ample power to protect itself in the administration of justice after a contempt has been committed.—Dailey v. Superior Court, 94. CONTRACT. 1. CONDITIONAL SALE OF PERSONAL PROPERTY-ASSIGNMENT BY VENDORPOWER OF ATTORNEY-PASSAGE OF TITLE-STRANGER TO CONTRACT.Where the owner of personal property has made a conditional sale thereof, reserving the title in himself, until full payment of the purchase money, for which he has received a note, a mere assignment of the contract of sale to a trust company, with power to fulfill the contract, and to collect all money thereon, without making to it any transfer of the note, or any bill of sale of the property, is in the nature of a power of attorney, and does not pass title of the property to the trust company, or authorize it to sell or transfer the property to a third person, and such third person is not a party or privy to the contract of sale, but is a stranger thereto.-Dunn v. Price, 46. 2. EVIDENCE- ORAL AGREEMENT WITH ONE VENDEE-PAROL EVIDENCE AGAINST STRANGER. -A stranger to a written instrument cannot invoke CONTRACT (Continued). the rule that parol testimony cannot be given to vary or contradict the terms of the instrument; and, as against a stranger to a written contract of conditional sale made to three persons, in which title was reserved to the vendor until full payment of purchase money, it may be shown by one of the vendees that he had an oral agreement with the vendor that if he made one-third of the payment of the purchase money he should have one-third of the property, and that such oral agreement had been fully performed on his part.-ld. 3. ORAL MODIFICATION OF WRITTEN CONTRACTS.-A contract in writing may be altered by an executed oral agreement, and evidence is admissible to show such an executed agreement and the circumstances attending it. Id. 4. CONSIDERATION OF RELEASE AND TRANSFER — QUESTION OF LAW. When it appears that plaintiff accepted a release and transfer from two of the vendees, it is competent for the third vendee to show, as against the vendor, what was the consideration of such release and transfer, the effect thereof upon the third vendee being a question of law. -Id. 5. EMPLOYMENT-AGREED SALARY-CONDITIONAL INTEREST IN BUSINESSCONSTRUCTION OF CONTRACT-PARTNERSHIP-CORPORATION-LIABILITY OF EMPLOYER.-A contract by the exclusive owner of a business for the services of an employee under an agreed salary of three hundred and fifty dollars a month, which also assigns to the employee one-tenth interest in the business, which was proposed to be conducted by a corporation in which the employee was to have one-tenth of the stock, and which makes his interest conditional upon ten years' faithful and exclusive service in the matter of the employment, and to be forfeited and revert to the employer upon breach of the condition, provided that in case of his death after faithful service, and before the expiration of five years, one-half of such interest should go unconditionally to his heirs, is a contract of employment, and does not constitute a partnership between the parties, or make the agreed salary depend on the profits of the business, and the employer is personally liable upon the contract of employment, notwithstanding the incorporation. - Stone v. Bancroft, 652. 6. ACTION UPON CONTRACT FAILURE OF SERVICE - READINESS TO PERFORM.—In an action upon a contract of employment at an agreed monthly salary for a fixed period, where it appears that there was no discharge from the employment, but that there was a failure of service owing to the fault of the employer, notwithstanding the employee was ready and willing to perform the contract, it is no defense that the plaintiff did not perform his duties thereunder, but the contract of employment is binding, and the agreed salary may be collected by the employee.-Id. 7. REMEDY UPON CONTRACT OF EMPLOYMENT - DISCHARGE OF EMPLOYEE -NONPERFORMANCE-PREVENTION.-In case of breach of a contract of employment by discharge of the employee, the proper remedy is an action of damages for such breach; but, where the employee is not discharged, and does not voluntarily leave the employment, or relinquish his claims under the contract, an action will lie upon the contract in favor of the employee for the agreed salary, notwithstanding his non CONTRACT (Continued). performance of the agreed services, where such nonperformance was owing to the failure or neglect of the employer to furnish continuous employment, or to his prevention of performance by the employee.-Id. See CORPORATIONS, 1-7; LANDLORD AND TENANT, 1, 2; MECHANICS' LIENS; VENDOR AND VENDee. CONVERSION. See CORPORATIONS, 9-11; DAMAGES, 2, 3. CORPORATIONS. 1. COMMON DIRECTORS-VALIDITY OF CONTRACT.—The mere fact that two contracting corporations have common directors, does not render the contract between the corporations invalid, or incapable of ratification, where there is no actual fraud alleged or found, and where the contract is within the chartered powers of both corporations.-San Diego v. Pacific Beach Co., 53. 2. FIDUCIARY CAPACITY-INAPPLICABLE RULE PRESUMPTION.-The directors who are common to both incorporations are not within the rule that he who acts in a fiduciary capacity cannot deal with himself in his individual capacity, but they owe the same fidelity to both corporations, and there is no presumption that they will deal unfairly with either of them.-Id. 3. CONTRACT BETWEEN RAILROAD AND REAL ESTATE COMPANY - RATIFICATION BY ACQUIESCENCE.-A contract between a railroad company and a real estate company having common directors, by which the real estate company agreed to pay certain promissory notes, in consi leration that the railroad company would operate its road as agreed in the contract for the period of two years, is ratified by acquiescence of the real estate company, where there was no attempt or intimation of its intention to avoid the contract until long after the time mentioned in the contract had expired, and the railroad company had fully performed the contract upon its part, and could not be put in statu quo, and the real estate company had paid the interest upon its notes, and the principal of prior notes, until after the railroad company had fully performed its contract, and it cannot thereafter defend payment of the last note due, upon the ground that the contract was made by common directors of the two corporations.-Id. 4. REPUDIATION OF BURDENS-ENJOYMENT OF BENEFITS. A party can. not repudiate the burdens of a contract, while enjoying its benefits. — Id. 5. EXPRESS RATIFICATION BY MAJORITY OF STOCKHOLDERS.-The majority of stockholders of a corporation, having power to authorize a contract, have power to ratify it, and an express ratification thereof by them binds the corporation.-Id. 6. GOVERNMENT BY MAJORITY - CONSENT OF STOCKHOLDERS. - The rule of stockholders' meetings is that the majority governs; and every stockholder contracts that such shall be the rule. Id. 7. KNOWLEDGE OF FACTS.-A ratification of a contract entered into by the directors of a corporation, by a majority of its stockholders, cannot be objected to by the corporation upon the ground that some of the stock. holders may have acted without knowledge of the facts, when they voted to ratify the action of the directors, where it is clear that they CORPORATIONS (Continued). knew or ought to have known the nature of the contract, and the circumstances attending it, and there is no attempt to show a want of knowledge by any of the stockholders of any circumstance connected with the contract.-Id. 8. LIABILITY OF STOCKHOLDERS-PLEADING - OMISSION TO AVER NUMBER OF SUBSCRIBED SHARES-GENERAL DEMURRER.-In a complaint by a creditor of a corporation against a stockholder to recover his proportionate share of the debt, an averment of the total number of subscribed shares is essential to the cause of action, and a complaint omitting such averment, and merely averring the total amount of capital stock, and the number of shares into which it was divided, and the ownership by defendant of a specified number of shares of stock held by the defendant when the liability was created, does not state a cause of action, and the omission renders the complaint subject to a general demurrer. John A. Roebling's Sons Co. v. Butler, 677. 9. REFUSAL OF BANK TO TRANSFER SHARES-ĈONVERSION-ELECTION OF REMEDY.-Where a banking corporation has refused to transfer stock upon its books, the assignee may elect to treat this as a conversion of the shares by the bank, and sue it for their value; or he may sue in equity to compel registration of the transfer, and recover damages as an alternative, nor is the latter remedy exclusive of the former.—Ralston v. The Bank of California, 208. 10. OWNERSHIP BY BANK OF SHARES CONVERTED. -The fact that the bank becomes the owner of the shares converted, where a recovery is had for the conversion, is not ground for refusing the remedy for such recovery, as the authorized capital is not reduced by such ownership, and the shares are not extinguished, and may be re-issued by the bank-Id. 11. INDEBTEDNESS OF STOCKHOLDER TO BANK-TRANSFER BY BANK-SUBSEQUENT CONVERSION.Where a rule of the bank forbids a transfer of stock while the stockholder is indebted to the bank, a refusal of the bank to transfer the stock on that ground is not a conversion; but if the bank transfers its claim of indebtedness against the stockholder, it loses its lien upon the stock, and it is no longer authorized to refuse the transfer, and is liable for conversion of the stock, upon a subsequent demand and refusal to transfer it upon the books.—Id. 12. BONDS OF RAILWAY COMPANY - FORECLOSURE OF TRUST DEEDINJUNCTION-ACTION BY STOCKHOLDERS-CONSPIRACY TO DEFRAUD— MATTER OF DEFENSE-INTERVENTION.-An action will not lie at the suit of stockholders in a railway corporation to enjoin the foreclosure of a trust deed given to secure its bonds, on the alleged grounds that any demand upon the corporation to bring such action would be fruitless, and that by conspiracy and collusion of the directors of the railway company with a construction company, each having a majority of the same directors, the bonds had been fraudulently, and without consideration, transferred to the construction company, and to other defendants, and to enjoin further transfer of such bonds, and compel the delivery of them up for the benefit of the railway company, as no such independent action would lie in favor of the railway company, and the facts alleged are available to it as matter of defense in the foreclosure suit, and, by way of cross-complaint, therein to aid the defense; CXII. CAL.-45 CORPORATIONS (Continued). and, in case the corporation would not prosecute such defense in good See AGENCY, 1; CONTRACT, 5; MECHANICS' LIENS, 4, 5; MUNICIPAL COSTS. See ESTATES OF DECEASED PERSONS, 19, 20. COUNTIES. See MUNICIPAL CORPORATIONS. CRIMINAL LAW. 1. CONVICTION OF FELONY - ADMISSION TO BAIL PENDING APPEAL — DISCRETION-ILL-HEALTH OF DEFENDANT.-Admission of a defendant to bail pending an appeal, after conviction of a felony, is matter of discretion and not of right, and such discretion is vested primarily in the court that tried the cause, or the judge thereof, and it should not be exercised to liberate the defendant except where circumstances of an extraordinary character have intervened since conviction, rendering such action obviously proper; and the fact that the defendant is in illhealth, where there is no showing that there is such imminence of dangerous results to his life or health as to require his removal from the county jail, does not disclose an abuse of discretion of the trial judge in refusing to admit him to bail.-Ex parte Turner, 627. 2. RENEWAL OF APPLICATION. The denial of one application for admission to bail does not preclude another application where circumstances require its renewal; but such application should always be made in the first instance, if practicable, to the judge before whom the defendant was tried. Id. 3. ASSAULT WITH DEADLY WEAPON-EVIDENCE-PISTOL AND CARTRIDGES -IDENTIFICATION BY POLICE OFFICER.-Upon the trial of a Chinese defendant, charged with an assault with a deadly weapon, where there was testimony that the defendant fired a pistol at the prosecuting witness, and then ran immediately toward a washhouse where he was employed, and the police officer who arrested the defendant in the washhouse, testified that he found a pistol there in one of the beds, which he took in his possession, and found indications, such as powder marks and smell of powder, that it had been recently fired, and that he had taken cartridges therefrom which were fresh in appearance. The pistol and cartridges, upon being identified by the police officer, are admiss ble in evidence, as tending to show that defendant might have taken, fired, and reloaded it, notwithstanding testimony on the part of the defendant that the pistol belonged to the keeper of the washhouse, and that it had been loaded for several months.-People v. Louie Foo, 17. 4. SUFFICIENCY OF IDENTIFICATION - GENERAL OBJECTION WAIVER.An objection to the sufficiency of the identification of the pistol and cartridges is waived, where no specific objection is made upon that |