Removal of Officer cannot be had for acts during preceding term, p.

288.

Distinguished in State v. Welsh, 109 Iowa, 22, allowing such removal under local statutes.

107 Cal. 298-303. ADAMS v. HELBING.

Specification of Particulars in new trial statement need not state what the evidence shows, p. 302.

To same effect in De Molera v. Martin, 120 Cal. 548, holding specifications insufficient. Cited in Taylor v. Bell, 128 Cal. 308, noted under Spotts v. Hanley, 85 Cal. 155; Drathman v. Cohen, 139 Cal. 313, but holding requirements as to specifications modified by later decisions.

Failure to Find on certain issues is not material if findings as made will support the judgment, p. 302.

Cited in Blochman v. Spreckels, 135 Cal. 664, holding findings sufficient.

Failure to Find renders the decision "against law" and reviewable as such, p. 301.

Cited in Clark v. Hewitt, 136 Cal. 79, reversing order denying new trial; and Senior v. Anderson, 138 Cal. 722, to same effect; Kaiser v. Dalto, 140 Cal. 170, following rule.

107 Cal. 303. ESTATE OF MACKAY.

Will Construction.-Parol evidence is admissible to show testator's intention, outside of his own declarations, p. 308.

Cited in Estate of Langdon, 129 Cal. 454, admitting such evidence where will was uncertain as to legacies to a class.

Legacy for Maintenance Bears Interest from death of testator, p. 308. Distinguished in Estate of Brown, 143 Cal. 454, 456, refusing interest on legacy from date of testator's death where will bequeathed five thousand dollars to trustees to be invested and out of income twenty dollars per month was to be paid to sister.

Appeal.-Recital of entry of order prior to appeal, p. 309.

Distinguished in Estate of More, 143 Cal. 495, recital in notice of appeal was entered on date of its rendition, and acknowledgment of service thereon and use of word "entered" in bill of exceptions do not constitute stipulation that judgment was so entered so as to give appellate jurisdiction.

107 Cal. S17-327. REDINGTON v. PACIFIC ETC. CABLE CO.; 48 Am. St. Rep. 132.

Negligence is question for jury, unless facts are clear and undisputed, p. 324.

Cited in Liverpool etc. Co. v. S. P. Co., 125 Cal. 440, noted unaer Carr v. Railroad Co., 98 Cal. 366.

Gross Negligence defined, p. 324.

Cited in Coit v. Western Union Tel. Co., 130 Cal. 664, holding telegraph company not guilty thereof under facts stated, and citing main case at page 661, on effect of stipulation entered into by sender of message.

107 Cal. 327-334. UNION ETC. CO. v. AMERICAN ETC. CO.; 48 Am. St. Rep. 140.

107 Cal. 334-340. CALIFORNIA ACADEMY OF SCIENCES v. SAN FRANCISCO.

Grant of Pueblo Lands, under Ordinance Eight Hundred, is invalid if made to private corporation, p. 339.

To same effect in Home v. San Francisco, 119 Cal. 536, holding plaintiff to be such a corporation. Cited in La Societe etc. v. San Francisco, 131 Cal. 173, as to grant of cemetery lands to benevolent corporation, although used by latter for burial purposes.

107 Cal. 340-345. MILLER v. KEHOE.

Fraudulent Conveyance.-Creditor's Bill will lie where conveyance made before assignee in insolvency appointed, and latter had no power to sue, p. 342.

To same effect in Stateler v. Superior Court, 107 Cal. 540, holding such action not affected by insolvency order staying proceedings. Cited in Citizens' Bank v. Rucker, 138 Cal. 610, sustaining foreclosure of equitable lien against property of insolvent under facts stated. Distinguished in Aigeltinger v. Einstein, 143 Cal. 614, creditor who has attached realty of property of debtor subsequent to alleged fraudulent conveyance by debtor to wife cannot, prior to judgment, sue wife to set aside conveyance. Note citations: Bank v. Frank, 58 Am. St. Rep. 101, on general subject.

Creditor's Bill.-Attorney's Fees are not allowable on, p. 343.

To same effect in Estate of Olmstead, 120 Cal. 453, ruling similarly as to allowance on will contest; Sanger v. Ryan, 122 Cal. 54, disallowing fees to trustee in certain actions defended by him. See, also, Petersburg etc. Co. v. Dellatorre, 70 Fed. Rep. 645, allowing attorney's fees to railroad receiver in priority to creditors.

Cited in Hays v. Windsor, 130 Cal. 236, quoting Sanger v. Ryan, 122 Cal. 54.

107 Cal. 345-348. PEOPLE v. SIMONSEN.

Corpus Delicti defined, p. 346.

Cited in People v. Jones, 123 Cal. 68, 69, and Sullivan v. State, 58 Neb. 798, citing main case also on point that defendant's admissions are not sufficient for conviction without proof of corpus delicti aliunde; People v. Tapia, 131 Cal. 651, noted under People v. Thrall, 59 Cal. 415. Corpus delicti cannot be by admissions of defendant, p. 348.

Approved in People v. Ward, 145 Cal. 739, applying rule in prosecution for obtaining money under false pretenses.

107 Cal. 348-362. LANSING v. JAMES.

Delivery of thing simultaneously with payment of price is not necessary to affect valid sale, p. 357.

Approved in Mason v. Lievre, 145 Cal. 523, applying rule to sale of shares of stock which was set apart for vendee with request as to mode of its issuance.

107 Cal. 373-378. HEYDENFELDT v. JACOBS.

Executor is Liable for property not assets of estate, but collected as such, p. 377.

See note to Schlicker v. Hemenway, 52 Am. St. Rep. 130, on general subject.

Judgment on Pleadings.-Notice of motion was considered sufficient as to grounds thereof, p. 376.

Cited in Hearst v. Hart, 128 Cal. 328, holding notice sufficient. Contest for Proceeds of Insurance Policy payable to widow and minor children cannot be inaugurated in probate court, p. 378.

Distinguished in Estate of Vance, 141 Cal. 627, arguendo.

107 Cal. 378-381. GRIFFIN & S. CO. v. MAGNOLIA ETC. CO.

Change of Venue. In action against corporation, plaintiff waives provisions of constitution, article 12, section 16, by joinder of other defendants, p. 380.

Cited in Miller v. Kern Co. etc. Co., 134 Cal. 589, construing the constitutional provisions.

107 Cal. 382-386. AHERN v. McCARTHY.

Deed will not be Construed to be Mortgage unless evidence therefor is clear and unequivocal, p. 386.

Approved in Larson v. Dutiel, 14 S. Dak. 483, construing deed as absolute conveyance and not as mortgage. See note 65 Am. St. Rep. 511.

107 Cal. 386-390. HAYWARD v. PIMENTAL.

Mandamus.-Default entitles plaintiff to judgment on his pleading,

p. 390.

Cited in Pereria v. Wallace, 129 Cal. 400, holding introduction of evidence unnecessary.

Execution.-Mandamus lies to compel issuance of, p. 390.

See note to State v. Cone, 74 Am. St. Rep. 152, 153.

107 Cal. 391-397. SANDELL v. SHERMAN.

Malicious Prosecution.-Advice of counsel is bar, irrespective of question of his good faith therein, p. 397.

To same effect in Seabridge v. McAdam, 119 Cal. 462, holding instructions erroneous. Cited in Holliday v. Holliday, 123 Cal. 37, but holding instruction erroneous.

Cross-examination.-Extent of is within discretion of trial court, p.

393.

Cited in Zane v. De Onativia, 139 Cal. 329, holding no abuse thereof shown.

107 Cal. 398-401. RICE v. BOARD OF TRUSTEES.

Municipal Corporation may contract for construction of sewer system, under statutes of 1889, p. 309, p. 400.

Cited in Redondo Beach v. Cate, 136 Cal. 148, but denying right to issue bonds for street improvements; Mill Valley v. House, 142 Cal. 699, under municipal improvement act (Stats. 1901, p. 27), municipal bonds may be issued for street work by city of sixth class.

107 Cal. 402-410. DEMARTINI v. SAN FRANCISCO.

Opening of Street-Injunction.-Plaintiff in action for, when in possession, need not in first instance show his title, p. 406.

To same effect in Oglesby v. Santa Barbara, 119 Cal. 116, holding burden on city to show that land belongs to it by dedication, or other wise; London etc. Bank v. Oakland, 90 Fed. 697.

107 Cal. 410. LE BRETON v. COOK.

Will is to be so construed as to prevent intestacy, p. 416.

Cited in Toland v. Toland, 123 Cal. 143, as to directions for sale of property; Estate of Fair, 132 Cal. 566, 84 Am. St. Rep. 105, as to trust provisions; and dissenting opinion in Estate of Sanford, 136 Cal. 104, as to trust provisions.

Devise of "Residue" of Testator's Property passes all property which he was entitled to devise at time of his death not otherwise devised, p. 416.

Approved in Estate of Granniss, 142 Cal. 7, where will makes certain bequests and devises all of residue to daughter, residuary bequests not

limited by declaration in will that all estate devised is separate property and was community property of first wife and himself.

107 Cal. 428-432. OAKLAND BANK OF SAVINGS v. SULLIVAN.

Allegations in Complaint to enforce street assessment as to delivery to plaintiff of warrant, assessment, diagram, exhibiting same with particularity, and averments as to making and return of affidavit of demand and non-payment, when admitted by answer shift burden on defendant without introducing documents in evidence, p. 431.

Approved in Raisch v. Hildebrandt, 146 Cal. 722, 723, following rule.

107 Cal. 432-438. SMITH v. LIVERPOOL ETC. INSURANCE CO. Malicious Prosecution.-Probable Cause is shown by reliance on advice of district attorney after information as to facts, p. 436.

To same effect in Dunlap v. Insurance Co., 109 Cal. 370, reversing judg. ment for plaintiff where similar advice shown.

Malicious Prosecution.-Probable cause defined, p. 436.

Cited in Davis v. Pacific Tel. etc. Co., 127 Cal. 319, noted under Potter v. Seale, 8 Cal. 221; McKenna v. Heinlen, 128 Cal. 100, noted under Ball v. Rawles, 93 Cal. 222.

107 Cal. 438-445. VAN PRAAG v. GALE.

Contributory Negligence is question of fact, unless facts and inferences to be drawn therefrom are disputed, p. 442.

To same effect in Davis v. Power Co., 107 Cal. 575, 576, 48 Am. St. Rep. 162, affirming judgment for plaintiff, and Goggin v. Osborne, 115 Cal. 440, ruling similarly; Fox v. Railway, 118 Cal. 62, 62 Am. St. Rep. 219, ruling similarly, but holding verdict excessive. Cited in Liverpool etc. Co. v. S. P. Co., 125 Cal. 440, noted under Carr v. Railroad Co., 98 Cal. 366; West Chicago etc. Co. v. Liderman, 187 Ill. 472, 79 Am. St. Rep. 231, quoting Fox v. Oakland etc. Co., 118 Cal. 55; Mischke v. Seattle, 26 Wash. 621, applying rule, where pedestrian carrying umbrella in front of himself for protection from rain fell into open trap in sidewalk.

Negligence.-Maintenance of open trap-door may be, p. 444.

Cited in Rider v. Clark, 132 Cal. 389, but holding such maintenance not negligence as matter of law.

107 Cal. 446-447. BROWN v. MERRILL; 48 Am. St. Rep. 145, 146.

107 Cal. 447-455. PACIFIC FRUIT CO. v. COON.

Corporation. In personal action for assessment, burden of proof is on plaintiff to show valid levy, p. 451.