Code of Civil Procedure; State v. Bartmess, 33 Or. 122, but holding cross-examination proper. Note citations: Hitchcock v. Moore, 14 Am. St. Rep. 481, and State v. Duncan, 38 Id. 895, on general subject.

Amendment of Complaint changing nature of action should be attacked by objection to its filing or motion to strike out, p. 97.

Cited in Anthony v. Slayden, 27 Colo. 149, discussing powers of court in allowance of amendments. See note 51 Am. St. Rep. 435.

78 Cal. 99-107. MOYLE v. LANDERS; 12 Am. St. Rep. 22.

Service of Notice of Appeal is insufficient if made on attorney for party previously deceased, p. 100.

Cited in In re Castle Dome etc. Co., 79 Cal. 249, dismissing appeal because not served on adverse party. Cited in Churchill v. Flournoy, 127 Cal. 359, 360, as to notice of motion for new trial; Estate of Turner, 139 Cal. 86, holding service ineffectual for any purpose; Holt v. Idleman, 34 Or. 117, noted under Judson v. Love, 35 Cal. 463.

Dismissal of Appeal-Estoppel.-Respondent held estopped under facts from moving to dismiss because notice not properly served, p. 106. See note to Karns v. Olney, 13 Am. St. Rep. 111, on estoppel.

Note.-Case is cited at 45 Mo. App. 221, and at 3 Okla. 36, but by mistake for 83 Cal. 579.

78 Cal. 107-108. JAMES v. SUPERIOR COURT. See State v. Cox, 155 Ind. 597.

78 Cal. 108-113. IN RE OXARART.

Adjudication of Heirship may be made upon distribution and special statutory provisions are not exclusive, p. 111.

To same effect in In re Jessup, 81 Cal. 439, construing section 1664, Code of Civil Procedure; Estate of Sheid, 122 Cal. 532, but holding petition therefor prematurely filed under facts; Estate of Sheid, 129 Cal. 176, on point that petition for distribution may be heard although heirship proceedings are pending and undetermined; Estate of Sutro, 143 Cal. 490, sustaining decree establishing default.

78 Cal. 113-116. DALE v. PURVIS.

Instruction. Specifications of Error in must point out errors with particularity, p. 115.

To same effect in Holloway v. McNear, 81 Cal. 157, holding specifications insufficient; State v. Mason, 18 Mont. 364, where held too general; Herbert v. Dufur, 23 Oreg. 463, appyling rule to notice of appeal under local statutes.

78 Cal. 118-126. SILCOX v. LANG.

Peremptory Challenge.-Parties entitled to have full panel before exercising right of such challenge, p. 123.

To same effect in Vance v. Richardson, 110 Cal. 416, but holding right to such challenge waived under facts.

Jury.-Impanelment of is part of the trial, p. 124.

Cited in People v. Hawkins, 127 Cal. 374, on point that jeopardy then

commences.

78 Cal. 126-135. LAWRENCE v. GAYETTY; 12 Am. St. Rep. 29.

False Representations are not actionable unless in reference to matter of fact, p. 131.

To same effect in Marriner v. Dennison, 78 Cal. 211, holding certain statements within, and others without, rule stated; Nounnan v. Land Co., 81 Cal. 6, holding expressions of opinion not included; Birmingham etc. Co. v. Elyton etc. Co., 93 Ala. 553, holding complaint insufficient in statement of ground of rescission; and see on same point Piedmont etc. Co. v. Piedmont etc. Co., 96 Ala. 393. Note citations: Dawe v. Morris, 14 Am. St. Rep. 407, on general subject.

Fraud does not include mere breach of contract, pp. 131, 134.

To same effect in Feeney v. Howard, 79 Cal. 529, 12 Am. St. Rep. 165, holding no actual fraud shown; and Schultz v. McLean, 93 Cal. 358, ruling similarly as to failure to advance moneys as agreed upon. Note citations: People v. Healy, 15 Am. St. Rep. 96, 97, on general subject. Distinguished in Howlin v. Castro, 136 Cal. 608, compelling redelivery of deed deposited in escrow as security for grantee's performance of contract to maintain grantor, under facts stated.

False Representation cannot be predicated on mere promise unless made with no intent to performance, p. 131.

Cited in Matteson v. Wagoner, 147 Cal. 743, applying rule in action by mortgagee to rescind loan secured by mortgage. See notes to People v. Healy, 15 Am. St. Rep. 96, 97; Cottrill v. Krum, 18 Id. 558; Chicago etc. Co. v. Titterington, 31 Id. 47; Nelson v. Shelby etc. Co., 28 Id. 133, and Clinch etc. Co. v. Willing, 57 Id. 628, on general subject. Specific Performance.-Failure of Consideration is not defense unless resulting in total failure of contract, p. 133.

Cited in Richter v. Union etc. Co., 129 Cal. 372, and Downing v. Rademacher, 133 Cal. 224, 225, 85 Am. St. Rep. 162, noted under Hartman v. Reed, 50 Cal. 485. See note 27 Am. St. Rep. 174.

78 Cal. 136-141. IN RE CASEMENT.

Farol Evidence.-Admission to identify legatee in will when bequest Notes Cal. Rep.-236.

uncertain held not reversible error, p. 140. See note to Palmer v. Farrell, 15 Am. St. Rep. 714, on general subject.

78 Cal. 144-148. PEARSON v. CREED.

Adverse Possession.-Payment of Taxes alone is insufficient where possession not otherwise adverse, p. 146.

See note to Wren v. Parker, 14 Am. St. Rep. 130, on general subject. Action to Quiet Title may be brought against holder of void tax deed, p. 147.

To same effect in Kittle v. Bellegarde, 86 Cal. 564, further holding as to effect of judgment therein; Dranga v. Rowe, 127 Cal. 510, quoting Kittle v. Bellegarde, 86 Cal. 564.

78 Cal. 150-152. DOE v. SANGER.

Statute of Limitations cannot be raised by demurrer unless bar appears on face of complaint, p. 151.

To same effect in Curtiss v. Insurance Co., 90 Cal. 250, 25 Am. St. Rep. 117, and Pleasant v. Samuels, 114 Cal. 38, 39. Cited under Wise v. Hogan, 77 Cal. 187.

Demurrer for Uncertainty will not lie unless complaint is doubtful as to reliet claimed and matters complained of, p. 151.

To same effect in Cunningham v. Railway Co., 115 Cal. 566, as to complaint for negligence where specific facts were within defendant's knowledge; Bryan v. Abbott, 131 Cal. 225, sustaining complaint on street assessment.

78 Cal. 152-153. WISE v. GRIFFITH.

Lis Pendens.-Personal Notice of pendency of action may be shown as against purchaser of property affected, p. 153.

See note to Hope v. Blair, 24 Am. St. Rep. 373, and Stout v. Philippi etc. Co., 56 Id. 856, 861, on general subject.

Lis Pendens.-Purchaser pendente lite with personal notice is bound by decree, p. 153.

Cited in Johnson v. Friant, 140 Cal. 263, although purchaser was not made a party; London etc. Bank v. Dexter, Horton & Co., 126 Fed. 599, judgment creditor purchasing at own sale takes subject to previous foreclosure judgment.

78 Cal. 154-158. PEOPLE v. HUSON.

Official Bond.-Sureties are estopped from denying recitals of appoint. ment therein, p. 156.

To same effect in County v. Hall, 132 Cal. 591, discussing limitation of

action on bond; Price v. Scott, 13 Wash. 576, applying rule to recitals of execution of contract whose performance is guaranteed; and on same point, Hayden v. Cook, 34 Neb. 674; Custer Co. v. Albien, 7 S. Dak. 486, sustaining complaint on official bond.

General Citation.-Brockway v. Petted, 79 Mich. 627.

78 Cal. 158-165. FOSS v. HINKELL. S. C. 91 Cal. 194, 205.

Patent for Public Lands is void if issued without authority, p. 161.

To same effect in Johnson v. Drew, 34 Fla. 138, 43 Am. St. Rep. 177; also cited below; Stewart v. Altstock, 22 Oreg. 188, as to lands excepted from grant under which patent issued.

Parol Evidence is admissible to identify boundaries in proceedings for Mexican grant, p. 163.

See note to Palmer v. Farrell, 15 Am. St. Rep. 714, on parol evidence. Patent may be attacked by pre-emption claimant in privity with gov. ernment, p. 163.

To same effect, conversely, in Zumwalt v. Dickey, 92 Cal. 153, where defendant was merely trespasser; and Johnson v. Drew, 34 Fla. 147, 43 Am. St. Rep. 184, and Janes v. Wilkinson, 2 Kan. App. 369, where merely in possession; Power v. Sla, 24 Mont. 250, noted under Boggs v. Merced etc. Co., 14 Cal. 279. Note citations: Faull v. Cooke, 20 Am. St. Rep. 842, on rights of settlers before patent.

78 Cal. 169-175. PEOPLE v. FONG CHING.

Instructions on Facts are reversible error when material,

P. 173. To same effect in People v. Murray, 86 Cal. 35, People v. Travers, 88 Cal. 237, holding instructions to be such; People v. Wallace, 89 Cal. 168. Kauffman v. Maier, 94 Cal. 283, and People v. Van Ewan, 111 Cal. 152, as to instructions on credibility of witnesses; People v. Hoff, 129 Cal. 503, holding instruction improper; Quint v. Dimond, 147 Cal. 714, applying rule in action for damage to crop by fire caused by sparks from traction engine.

Witness.-Defendant testifying on own behalf held properly crossexamined as to prior arrest, p. 175.

Cited in People v. Buckley, 143 Cal. 389, sustaining examination as to arrest. See note 14 Am. St. Rep. 481.

78 Cal. 175-180. SIMPSON v. MCCARTY; 12 Am. St. Rep. 37.

Affidavit for Attachment held sufficient, p. 178.

Cited in Hale Bros. v. Milliken, 142 Cal. 138, sustaining affidavit alleging indebtedness upon an express contract.

Affidavit for Attachment need not state whether suit is brought on

express or implied contract where its nature is shown, nor source of affiant's knowledge, pp. 178, 179.

To same effect, as to first point, in Flagg v. Dare, 107 Cal. 486, sustaining similar affidavit; and, as to second point, in Ahlhauser v. Butler, 57 Fed. Rep. 125, discussing attorney's liability to client for drawing up such affidavit; Stockbridge v. Fahenstock, 87 Md. 134, as to allegation that affiant is plaintiff's agent or makes affidavit on his behalf. Note citations: Murphy v. Jack, 40 Am. St. Rep. 592, on affidavits on information and belief.

78 Cal. 181-192. COWAN v. PHENIX INSURANCE CO.

Insurance.-Performance of promissory warranties must be alleged and proved, p. 185.

To same effect in Rankin v. Insurance Co., 89 Cal. 210, 23 Am. St. Rep. 464, as to employment of watchman; Berliner v. Insurance Co., 121 Cal. 457, but sustaining complaint on life policy; Breedlove v. Norwich etc. Soc., 124 Cal. 168, as to warranty of ownership; Gillon v. Northern etc. Co., 127 Cal. 483, noted under Doyle v. Insurance Co., 44 Cal. 264; McGannon v. Michigan etc. Fire Ins Co., 127 Mich. 647.

Complaint on Policy must allege lapse of stipulated time since presentation of proofs of loss, p. 188.

To same effect in Connecticut etc. Co. v. McWhirter, 73 Fed. Rep. 449, but holding complaint sufficient when taken in conjunction with record of filing; California etc. Bank v. Surety Co., 82 Fed. Rep. 867, applying rule to complaint on indemnity bond as to notice of loss; German etc. Co. v. Hall, 1 Kan. App. 50, holding complaint insufficient; and First Nat. Bank v. Insurance Co., 6 S. Dak. 428, ruling similarly. Note citations: Matt v. Iowa etc. Assn., 25 Am. St. Rep. 486, on time of action on policy.

Insurance Policy-Arbitration.--Right to held not shown by complaint, p. 192.

Note citations: Randall v. Ins. Co., 24 Am. St. Rep. 67, on arbitration. 78 Cal. 193-201. GIANT POWDER CO. v. SAN DIEGO FLUME CO. S. C. 88 Cal. 20, 25; 97 Cal. 263, 264.

Mechanics' Liens.-Completion is conclusively shown by acceptance and occupation, p. 196.

To same effect in Joost v. Sullivan, 111 Cal. 292, although contract void because not recorded; Stimson v. Los Angeles etc. Co., 141 Cal. 32, but holding mere occupation of temporary structure insufficient.

Mechanics' Liens.-Contract void because not recorded is void only as between its parties, p. 196.

Overruled as to this point in Kellogg v. Howes, 81 Cal. 178, where uecision explained, and see Lumber Co. v. Gottschalk, 81 Cal. 644.