MUNICIPAL CORPORATIONS (Continued).

18 of article XI of the constitution, which forbids any city to "incur any indebtedness or liability in any manner, or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for such purpose"; and, as those sections of the Political Code relate only to indebtedness incurred prior to the taking effect of the present constitution, they are not in conflict with its provisions, and the assent of the electors is not required to authorize the refunding. — Id.

20. DATE OF OUTSTANDING INDEBTEDNESS - PLEADING-PRESUMPTION.In pleading the refunding of the indebtedness of a city which was outstanding on the 1st of January, 1880, it is necessary to aver what indebtedness was then outstanding, and it cannot be presumed in favor of the pleader that any indebtedness was then outstanding, if it is not alleged.-ld.

21. CONSTITUTIONAL LAW-SPECIAL LEGISLATION CLASSIFICATION OF MUNICIPAL CORPORATIONS - FUNDING INDEBTEDNESS OF CLASSES OF CITIES.-The act of March 15, 1883, and the act of March 1, 1893, amendatory thereof, in reference to the funding or refunding of any indebtedness of municipal corporations other than cities of the first class, are within the power of the legislature with respect to the classification of municipal corporations, and to make different regulations in matters pertaining to municipal organizations, and do not violate the provisions of the constitution against special legislation. - Id.

22. FUNDING INDEBTEDNESS CREATED UNDER CONSTITUTION -ASSENT OF VOTERS-STATUTORY CONSTRUCTION.-Under any act providing for the funding of municipal indebtedness incurred since the taking effect of the present constitution, a submission to the voters must be had to determine the question whether bonds shall be issued; but it does not follow that an act on that subject must contain that requirement; and it is sufficient that by any legislation, or by the terms of a municipal charter, authority is given to the municipal government to call such an election; and it seems that the constitutional provision requiring such an election is, of itself, sufficient authority to the municipality for holding it.-Id.

23. INVALID PROVISION-PAYMENT OF BONDS OUT OF STATE-MANDAMUS. A statute or ordinance providing that municipal bonds for the funding of city indebtedness shall be made payable outside of the state, at a bank in New York city, or at any place other than the city treasury, contravenes sections 15 and 16 of article XI of the constitution, and is invalid; and the president of the city council cannot be compelled by mandamus to sign bonds made so payable.-Id.

MURDER AND MANSLAUGHTER. See CRIMINAL LAW, 7-13.
NEGLIGENCE.

1. OPERATION OF ELECTRIC RAILWAY BY ONE MAN-RUNAWAY OF CAREXPERT EVIDENCE-CUSTOM.-In an action for the death of a person injured through the runaway of an electric car on a down grade, by reason of the fact that the car was left in the operation of a single

CXII. CAL.-47

NEGLIGENCE (Continued).

man, who was compelled to leave the car to adjust the trolley at a switch, and who, through a fall to the ground, was unable to regain the car, expert evidence is inadmissible to show that, according to the experience and general custom of electric street railway companies, one man was sufficient to operate an electric car, although the witnesses could speak from their observation of the fact that certain roads did operate certain cars with but one man in charge.—Redfield v. Oakland Consolidated Street Railway Co., 220.

2. OPINION OF RAILWAY COMPANIES — ULTIMATE Fact of NEGLIGENCE — PROVINCE OF JURY.--Where evidence as to a custom of electric railway companies amounts to the opinion of such companies as to the ultimate fact of negligence in the employment of a single man to attend an electric car, who is required to leave it when in motion, such evidence is not admissible; but such ultimate fact is matter to be inferred by the jury from the evidence, without the aid of expert or opinion evidence. Id.

3. IMMATERIAL EVIDENCE-RELATIVE NUMBER OF WOMEN AS PASSENGERS-HARMLESS RULING.—A question asked of the defendant's witness upon cross-examination, for the purpose of showing that more women than men were accustomed to ride upon the electric cars where the injury occurred to the woman for whose death the action was brought, should properly be excluded as immaterial; but the admission of such evidence is harmless where it appears that it could not and did not affect the question of negligence, or prejudicially affect the defendant.Id. 4. EXPLOSION OF GAS GENERATOR-EMPLOYMENT OF INEXPERIENCED MEN-ABSENCE OF PROPER INSTRUCTIONS.-In an action to recover damages for personal injuries caused by the explosion of a gas gen erator, where it appears that the plaintiff was inexperienced, and that the explosion was caused by the defendant allowing the plaintiff and another inexperienced man to tighten the nuts on the bolts upon the gas generator with an increasing pressure of gas, without proper warning to them of the danger, and of the care and skill required to make the pressure an equal strain upon all the parts of the generator, a verdict for the plaintiff will not be disturbed upon appeal.-Ryan v. Los Angeles Ice and Cold Storage Co., 244.

5. UNFORESEEN CAUSE - LIABILITY OF DEFENDANT.-The fact that the cause of the accident was unforeseen, and that the defendant did not know that it would probably occur, cannot relieve the defendant from liability resulting from the employment of unskilled and inexperienced workmen to do a dangerous task, without proper warning and instruction as to the danger, and as to the proper manner of doing the work. ld.

6. FELLOW-SERVANTS-ENGINEER IN CONTROL AS MANAGER-INSTRUCTION.-It is not error to refuse to instruct the jury that an engineer having sole charge of the generator in the absence of the superintendent and general manager, and under whose direction the work of tightening the bolts was done by inexperienced men, was a fellow-servant of the plaintiff, it appearing that such engineer had the same power to control the men, in the absence of the general manager, that the latter had when he was present.-Id.

See INSURANCE, 3.

NEGOTIABLE INSTRUMENTS.

1. NEGOTIABLE PAPER-ACTION UPON PROMISSORY NOTE-INDORSEMENT AFTER MATURITY DEFENSE OFFSET - COUNTERCLAIM -PAYMENT— PLEADING-DEMURRER.-In an action upon a promissory note, where the answer pleaded that the note was indorsed to the plaintiff after maturity, and denied consideration of the note to the extent of one thousand dollars, and averred that before indorsement of the note the payee was indebted to the defendants in the sum of one thousand dollars, for money paid, laid out, and expended, and for work and labor done by them for said payee, at his request, in that sum, while he was the holder of the note, which sum was and is an offset and payment on account of the note, and that the same had not been paid, though demanded; and, further, that one thousand dollars was paid on account of the note before transfer to the plaintiff, who had notice thereof, and that plaintiff was the son of the payee, and that the transfer to him was without consideration, for the purpose of defrauding the defendants, although that portion of the answer constituting a counterclaim is fatally defective, ambiguous, unintelligible, and uncertain, by improperly uniting and mingling distinct causes of action in one count, yet, as the plea of payment, notice to plaintiff, and transfer of the note without consideration, as made in the answer, constituted, pro tanto, a valid defense to the action, a demurrer to the entire answer was improperly sustained.— Eich v. Greeley, 171.

2. STRIKING OUT IMMATERIAL AND IRRELEVANT PART OF ANSWER FRAUDULENT TRANSFER OF PROPERTY.-The answer having admitted the making of the note, and shown on its face that there was an amount due thereon sufficient to cover the cross-demands of the defendants, it was immaterial to them or to their case whether or not plaintiff and the payee of the note had procured a fraudulent transfer of all or any part of the property of the payee; and the portion of the answer averring such fraudulent transfer was irrelevant matter, having no proper place in the pleading, and was properly stricken out under section 453 of the Code of Civil Procedure.-Id.

See SURETY.

NEW TRIAL.

1. NOTICE OF INTENTION-STATEMENT OF BASIS OF MOTION ESSENTIAL. A motion for a new trial cannot be considered when the notice of intention does not state what the motion will be based upon, whether upon affidavits, minutes of the court, bill of exceptions, or a statement of the case, as required by section 659 of the Code of Civil Procedure. Hughes v. Alsip, 587.

2. WAIVER-BILL OF EXCEPTIONS - AMENDMENTS-SETTLEMENT.-A defect in the notice of a motion for a new trial, in not stating upon what the motion would be based, is not waived by the proposal of amendments to a bill of exceptions, nor by participation in the settlement of such bill, as appellant is entitled to use a bill of exceptions upon appeal from the judgment, regardless of the motion for new trial.-Id.

3. SUFFICIENCY OF PROPOSED STATEMENT - SKELETON STATEMENT. -- A proposed statement, on motion for new trial, should be a fair one, but nothing should be inserted therein in extenso but that which is pertinent

NEW TRIAL (Continued).

to the questions made by the moving party, and necessary for their proper consideration, and a proposed statement should not be rejected because it contains reference to documentary evidence, with the remark "[here insert]," notifying the opposite party that it is to become part of the statement; and though such reference in an engrossed statement would render it a skeleton statement, a proposed statement is not to be rejected, or settlement thereof refused on that account.-Reclama. tion District No. 535 of Sacramento County v. Hamilton, 603.

4. STATEMENT-INSUFFICIENCY OF EVIDENCE-SPECIFICATIONS.-Specifications in a statement on motion for new trial are not sufficient to entitle the evidence to be reviewed, where they merely state generally what the evidence shows, and do not purport to state the particulars wherein the evidence is insufficient to justify the finding or verdict. — Haight v. Tryon, 4.

See APPEAL, 3, 15; FINDINGS, 4; JUDGMENT.

OFFICE AND OFFICERS. See PUBLIC OFFICERS.

PARTITION. See STATUTE OF LIMITATIONS, 1.

PARTNERSHIP.

1. ATTORNEYS AT LAW-CONDUCT OF LITIGATION BY SURVIVING PARTNER -MODIFICATIONS OF CONTRACT-ACCOUNTING.-Where a firm of attorneys agreed in writing to conduct a litigation to its final determination, paying all expenses thereof, and to receive fifteen per cent of recovery in case of success, and the contract was orally modified by which the clients agreed to pay a.certain sum for the expense of litigation, and paid part thereof, and upon the death of one of the firm before further court proceedings were had, the surviving partner made a new written contract in his own name to pay all expenses and to receive forty-five per cent in addition to the amount agreed to be paid to the firm, and thereafter carried the litigation to a successful termination, there was no agreed abandonment or rescission of the earlier contract, but the later contracts were modifications of the original, and the surviving partner is properly held to account to the heirs of the deceased partner for one-half of the fifteen per cent originally agreed to be paid to the firm.-Little v. Caldwell, 27.

2. ASSIGNMENT OF RIGHTS OF HEIRS CONSIDERATION - FINDING-CONFLICTING EVIDENCE-SUPPORT OF JUDGMENT.-Where the surviving partner, at the time of the execution of the new contract in his own name, requested and obtained an assignment from the heirs of the deceased partner reciting a consideration of one dollar, and expressing the unwillingness of the heirs to bear any expense of the litigation, but did not inform them of the new contract, a finding that the true consideration for the assignment was the promise of the defendant that he would do what was right by the heirs will not be disturbed where the evidence is conflicting; and the surviving partner must be held to such consideration if their interest in the litigation was assignable, and, if not, he must account as surviving partner, and, in either case, a judgment for the amount due under the original contract will be sustained. — Id.

See APPEAL, S; CONTRACT, 5; EVIDENCE, 6; MINING PARTNERSHIP.

PARTY WALL.

1. LOCATION OF PARTY-WALL-INCREASE OF HEIGHT-TITLE TO LAND IMMATERIAL. It is not necessary that a party-wall should stand half upon each of the adjoining parcels of land, but it may stand wholly upon one lot, and may or may not be the common property of the two proprietors; and where there is a party-wall, each of the owners may increase the height thereof when it can be done without injury to the adjoining building, and without impairing the value of the cross-easement to which the adjoining proprietor is entitled.-Tate v. Fratt, 613.

2. OPENINGS IN WALL-OFFER IN ANSWER TO CLOSE THEM-FINDINGPRESUMPTION - SUPPLEMENTAL ANSWER.-Where it was the original purpose of the defendant to construct openings in the wall erected by him upon the party wall, but where, in the answer to a complaint seeking to enjoin its erection, there is an offer to close up the openings, a finding that the new wall is solid and has no openings will be sustained when there is no specification of insufficiency of the evidence to justify the findings; and it will be presumed that defendant had closed up the openings before the trial, and it is not necessary that a supplemental answer should be filed setting up the fact that he has closed the openings.-Id.

3. TESTIMONY OF ARCHITECT-PRIORITY OF ERECTION.-Opinion asked of an architect whether he could tell which of the two adjoining buildings which used the party-wall was constructed first, is not objectionable as calling for the opinion of the witness, and when, in reply to the question, he states the facts within his knowledge and observation, it is proper to overrule the objection thereto.-Id.

PAYMENT.

PAYMENT-EFFECT OF NOTE.-Without the intention and express agreement of the parties that the making and acceptance of a note shall operate as payment or satisfaction of the original debt to secure which it was given, it does not so operate, though it may have the effect to suspend the right of recovery until maturity of the note.-Delapiazza v. Foley, 380.

See STREET ASSESSMENT, 41.

PERJURY. See CRIMINAL LAW, 16-18.

PLEADING.

1. OBJECTIONS TO COMPLAINT-WAIVER BY AMENDMENT.-The filing of an amended complaint supersedes any previous complaint, and is a waiver of any error in sustaining a demurrer to a previous complaint, or in striking out a portion of a previous complaint as being irrelevant and redundant.-Brittan v. Oakland Bank of Savings, 1.

2. CLAIM AND DELIVERY-OWNERSHIP AT TIME OF SUIT BROUGHT.-A com. plaint in an action of claim and delivery of personal property must show the ultimate fact that plaintiff was the owner or entitled to the possession of the property at the time of the commencement of the action; and it is not sufficient to aver that he was the owner or entitled to possession at some period prior to that time.-Holly v. Heiskell, 174.