PLACE OF TRIAL (Continued).

be liable in an action for damages, he would not be a party to the liability involved in the rescission, and his joinder as a defendant will not justify the retention of the action in the county of his residence as against the motion and demand of the defendant party to the contract that the place of trial be changed to the county of the latter's residence. (Karst v. Seller, 623.)

5. ORDER CHANGING PLACE OF TRIAL-ESTOPPEL TO COMMENCE NEW ACTION.-Where the court on a motion by one defendant to change the place of trial to the county of his residence has determined that his codefendant is not a proper party to the action and granted the change of venue, the plaintiff is estopped from bringing a new action and again making the latter a defendant to give jurisdiction under the same state of facts, or by merely camouflaging them in a different form of action which such facts will not support. (Id.)

6. STATEMENT CAUSE OF ACTION-CONCLUSIVE OF COMPLAINT RIGHT TO PRESENT SUFFICIENCY ON MOTION FOR CHANGE OF VENUE.The fact that the complaint states a cause of action against the defendant resident in the county where the action is brought is not conclusive as against a motion by a codefendant to change the place of trial to the county of the latter's residence, but it may be shown on such motion that the cause of action stated does not in reality exist. (Id.)

7. ORDER FOR CHANGE OF PLACE OF TRIAL- - FINALITY OF

- APPEAL FROM.-An order for change of place of trial has all the characteristics of a final judgment, and an appeal lies therefrom. (Id.)

PLEADING.

1. ACTION FOR MONEY HAD AND RECEIVED - SECRET PROFITS SEVERAL COUNTS - CONSTRUCTION OF - FRAUD. Where, in an action to recover the difference between the sum plaintiff paid for a one-half interest in certain mining property and one-half of the amount alleged to have been the actual price paid for said property by defendant, which amount is claimed to constitute a secret profit made by defendant while acting as the confidential agent of plaintiff, the plaintiff first states his cause of action as a quantum meruit for money had and received and then, in a second count, sets forth the probative facts relied upon to support the cause of action, but there is no allegation in such second count that plaintiff was damaged by the acts of defendant, thus specifically pleaded, or that the property is of less value than plaintiff paid for it, the court cannot regard the second count as stating a cause of action for damages for fraud. (Tower v. Wilson, 123.) 2. REFUSAL OF LEAVE TO AMEND WANT OF ERROR. At the conclusion of the trial, and after the court had announced its views

PLEADING (Continued).

as to how the case should be decided, it was not error for the court to refuse the plaintiff leave to amend his third amended complaint by adding thereto a third count, which he styled a "further, separate, and distinct cause of action," where the matters set forth in the proposed amendment was not only inconsistent with the averments of the original complaint, as finally amended, and with the testimony of the plaintiff given at the trial, but raised new and distinct issues, requiring an answer from the defendant, and which could have been asserted under the first cause of action of the original complaint. (Id.)

8. ACTION FOR MONEY HAD AND RECEIVED COUNTERCLAIM FOR MONEYS ADVANCED CORPORATION-STOCKHOLDER'S LIABILITY.—-In this action to recover the difference between the sum plaintiff paid for a one-half interest in certain mining property and onehalf of the amount alleged to have been the actual price paid for said property by defendant, which property, subsequent to the transaction, had been conveyed to a corporation organized to operate it, the stock issued in consideration therefor having been divided between plaintiff and defendant, the court properly permitted the interposition of a counterclaim against plaintiff based on his stockholder's liability for money advanced by defendant to the corporation, pursuant to the original agreement under which the property was purchased, for use in working and developing the property. (Id.)

4. ACTION TO RECOVER ON NOTES-AMENDMENT TO FORECLOSE MORTGAGE-CHANGE OF REMEDY. The amendment of a complaint changing the nature of the action from one at law for the recovery of the balance due on certain promissory notes given in payment of a traction engine to a suit in equity to foreclose a mortgage on such engine given as security for the payment of such notes does not change the causes of action set forth in the original complaint, but merely changes the remedy. (J. I. Case T. M. Co. v. Copren Bros., 159.)

5. ELECTION OF REMEDIES-ESTOPPEL.-The fact that the plaintiff took possession of the mortgaged property and undertook to sell the same under the provision of the mortgage authorizing it to take that course in case of a default in the payment of the notes, and then commenced an action at law for the deficiency, did not estop it from thereafter amending its complaint and suing in equity to foreclose the mortgage on such property, the attempted sale pursuant to the provisions of the mortgage not having been effected and the original action not having been prosecuted to final judgment. (Id.)

6. CAPACITY OF CORPORATION ESTOPPEL OF MORTGAGOR TO DENY.A mortgagor of property who has dealt with the mortgagee

PLEADING (Continued).

as a corporation, and received from it the consideration of the mortgage note, is estopped from denying its corporate capacity in an action by the corporation to foreclose the mortgage. (Id.) 7. ACTION TO FORECLOSE MORTGAGE RIGHT TO JURY TRIAL.-A proceeding or action instituted for the purpose of foreclosing a mortgage, either on real or personal property, involves an equitable remedy, and a jury is allowable only as a matter of grace and not of right. (Id.)

8. LANDLORD AND TENANT-ACTION TO RECOVER PREMISES - RENT DUE.-Where the complaint in an action to obtain possession of certain leased premises is not based upon overdue rent, an allegation as to the amount of rent due is not necessary. (Tropical Investment Co. v. Brown, 205.)

9. STATE OF INCORPORATION VARIANCE - ERROR.

Where the veri

fied complaint in such action alleges that the plaintiff was incorporated under the laws of the state of California, whereas it appears at the trial that it was incorporated under the laws of the state of Utah, the variance is too trivial to warrant a reversal. (Id.)

10. INCONSISTENCY BETWEEN GENERAL AND SPECIFIC AVERMENTS -PRECEDENCE TO BE GIVEN.-While specific averments must be given precedence over general averments where there is an inconsistency between the general and specific averments, in the absence of any inconsistency, the general averments, if necessary, may be looked to to complete the essentials of a cause of action. (Horton v. Travelers' Ins. Co., 462.)

11. OFFICE OF SUPPLEMENTAL COMPLAINT. — A

supplemental com.

plaint is not an amendment to a pleading, and is not so classed in the code, but it is only authorized for the purpose of bringing before the court facts material to the case occurring after the former complaint or answer, and leaves the former pleading intact. (Craiglow v. Williams, 514.)

12. JOINDER OF CAUSES OF ACTION FOR TORT AND ON CONTRACT FAILURE TO DEMUR-WAIVER OF OBJECTION.-Where several causes of action, one in the nature of a tort and one upon contract, are united contrary to the provisions of section 427 of the Code of Civil Procedure, and, further, are not separately stated, but the complaint is not attacked by demurrer, the objection must be deemed waived. (Cass v. Ocean Park Bath Co., 656.)

See Accident Insurance, 10, 11; Appeal, 3; Chattel Mortgages, 1; Claim and Delivery, 1; Conversion, 3; Corporations, 4; Counties, 4, 5, 19, 20; Criminal Law, 2, 6-9, 11, 14, 18; Divorce, 10; Eminent Domain, 1; Findings, 7; Fraud, 1; Habeas Corpus, 1; Juvenile Court Act, 1; Mandamus, 1; Mortgages, 1, 7, 12; Negligence, 5, 7, 38-40; Place of Trial, 6; Red-light Abatement Act, 1; Sales, 1, 6; Waters and Water Rights, 2.

PLEDGES. See Claim and Delivery, 1.

POLICE POWER. See Counties, 8, 9, 13-15.

POSSESSION. See Criminal Law, 15, 17; Mining Law, 10; Redlight Abatement Act, 5.

PRESCRIPTION. See Waters and Water Rights, 3-5, 9.

PRESUMPTIONS. See Accident Insurance, 1, 2; Appeal, 1; Deeds, 10; Divorce, 9; Evidence, 2; Laws, 1; Mortgages, 4, 5; Municipal Corporations, 12; New Trial, 2, 16; Physicians and Surgeons, 3.

PRINCIPAL AND AGENT. See Agency.

PRIORITIES. See Mortgages, 8, 9, 15; Waters and Water Rights, 4.

PRISONS.

1. CRIMINAL LAW-DISCIPLINE OF PRISONERS-RIGHTS AND POWERS OF STATE PRISON BOARD-SUMMARY PROCEEDINGS BEFORE BOARD. -The purpose of vesting in the governing board of the state prisons of California the right and the power to punish prisoners confined in those prisons in the manner prescribed by section 1588 of the Penal Code is to compel, on the part of such prisoners, obedience to the rules of discipline established for the government of the conduct of the inmates of those institutions, and a proceeding instituted by such board for the purpose of ascertaining and determining whether a prisoner confined in any of said prisons has been guilty, while such prisoner, of an infraction of any of the prison rules or of any law of the state may be summary in character. (In re McDonald, 480.)

2. NATURE OF CHARGE AGAINST PRISONER-RIGHT TO BE INFORMED COMPLIANCE WITH SECTION 1588, PENAL CODE.-A prisoner charged with an offense under section 1588 of the Penal Code is entitled to be informed, before he is put upon his trial, of the nature of such offense, but this requirement is sufficiently complied with where the charge is read and explained to him at the time of the hearing, whether such charge is merely entered in some book in which evidence of the proceedings of the board as preserved or written on a sheet of paper disconnected with any such book. (Id.)

8. SUFFICIENCY OF NOTICE OF HEARING. While the provision of section 1588 of the Penal Code requiring that a prisoner confined in a state prison is entitled to notice of the pendency of the charge against him before the board is mandatory, so long as the prisoner

PRISONS (Continued).

is given due or such timely notice as will put him in possession of knowledge of the nature of the charge to which he is required to plead as will afford him sufficient opportunity for the preparation of any defense which he may have, whether such notice be given in writing or orally, it is sufficient. (Id.)

4. ENTRY OF PLEA OF GUILTY- - WAIVER OF NOTICE OF HEARING. — Where a prisoner is brought before the prison board and, after the charge against him is read and explained, he does not express a desire to contest the same but enters a plea of guilty, he will be held to have waived any further or different notice than that which has been given him. (Id.)

con

5. CONFERRING OF JURISDICTION BY CONSENT LIMITATION OF RULE AGAINST. The expression that "jurisdiction cannot be ferred upon a court by the mere consent of the parties" means that jurisdiction of the subject matter of an action or proceeding cannot be so conferred; but that rule has no application where the question is as to the jurisdiction of the tribunal of the person of a party to a controversy over a subject matter of which such tribunal has jurisdiction under the law. (Id.)

6. JURISDICTION OF PRISON BOARD OVER PRISONERS. Under the law giving to the board of state prison directors its power as such, the said board has at all times for all the purposes of the state prisons and the government thereof jurisdiction of the persons of all prisoners confined therein. (Id.)

PROFITS. See Corporations, 15.

PROHIBITION. See Criminal Law, 3, 4.

PROMISSORY NOTES.

1. CONSTRUCTION OF INTEREST PROVISION-PREMATURE ACTION TO RECOVER. Where a promissory note payable on or before four years after its date provides that the interest is payable quarterly, "and if not paid, then in that event to be compounded quarterly and added to the principal," it is optional with the maker whether she should pay the interest at the quarterly dates or submit to he amounts being added to the principal to be collected upon maturity of the whole; and an action to recover the interest thereon will not lie prior to the maturity of the note. (Avery v. Hagenios, 176.)

PERSONAL JUDGMENT.

2. PLEADING FORECLOSURE OF SECURITY Where a note is secured by a mortgage upon real property, the holder of the note must proceed by foreclosure of such security before obtaining personal judgment upon the note against the maker thereof.

(Id.)