63 Cal. 80. BRODRIBB v. TIBBITS.

Presumption in Favor of correct action of probate court arises in same manner as of courts of general jurisdiction, p. 80.

Cited in Burroughs v. De Couts, 70 Cal. 373, on the question of an attack on an appointment of a guardian for insufficiency of notice; Latham v. Blake, 77 Cal. 649, as correct ruling; Smith v. Biscailuz, 83 Cal. 354, to same effect.

63 Cal. 81. SEYMOUR v. WOOD.

Vacating Order of Dismissal of action for want of prosecution is discretionary with the court, and will only be reversed for manifest abuse of discretion, p. 81.

Cited in Moore v. Thompson, 138 Cal. 26, affirming such order; note to 95 Am. Dec. 215, on dismissal of action for want of prosecution.

63 Cal. 81-86. NEWBILL v. WHITFIELD.

Mining Location.—Evidence held to establish knowledge of prior loca tion, p. 85.

Cited in Talmadge v. St. John, 129 Cal. 437, holding subsequent location invalid under facts stated.

63 Cal. 86-95. COLE v. SUPERIOR COURT. 49 Am. Rep. 78.

Guardian ad Litem may employ an attorney, but his compensation must be fixed by the court, pp. 89, 90.

Followed, as to power to employ, in Taylor v. Hill, 115 Cal. 149; note to 99 Am. Dec. 354, on jurisdiction of probate courts when exclusive (on the point of employment of an attorney by an administrator); also cited in Walton v. Yore, 58 Mo. App. 565, as authority for the proposition that a guardian ad litem appointed by the court for an infant defendant is entitled to compensation. The citation seems of doubtful value; Seaton v. Tohill, 11 Colo. App. 216, on point that court should intervene to protect infant's rights; Richardson v. Tyson, 110 Wis. 578, 583, 84 Am. St. Rep. 938, holding such attorney entitled to reasonable compensation only. Distinguished in Schultheis v. Nash, 27 Wash. 256, guardian is authorized to enter into a contract agreeing to pay attorneys one-half of all the estate they may recover for the ward in an action brought to establish his right therein.

63 Cal. 96-97. TRASK v. CALIFORNIA SOUTHERN RAILROAD COMPANY.

Master and Servant.-A railroad company is liable to an employee for injury resulting from improper and negligent construction of its road; the doctrine of common employment does not apply, p. 97.

Cited in Brown v. Sennett, 68 Cal. 231, 58 Am. Rep. 12, applying the ruling where a stevedore's employee injured by the negligence of the foreman in charge of the work; Magee v. North Pacific Coast Co., 78 Cal. 436, 12 Am. St. Rep. 74, also to a case of damages through cattle trespassing in consequence of insufficient fences; Indiana Car Co. v. Parker, 100 Ind. 187, where a master was held liable for a negligent omission in selecting and maintaining machinery and appliance. Note this case, decided in November, 1884, should be compared with Brown v. Sennett, 68 Cal. 231, 58 Am. Rep. 12, which was decided in December, 1885, as to the extent to which a master was liable for the negligence of his foreman in charge of the work. Cited in Evansville R. R. Co. v. Maddux, 134 Ind. 583, as to the duty of a master to give an employee who is under age timely caution and make him aware of the risks; Cunningham v. U. P. Ry. Co., 4 Utah, 214, holding that a mine owner was liable for injury to a miner from a fall of coal in a gangway which it was his duty to keep in a safe condition; Bowers v. U. P. Ry. Co., 4 Utah, 223, holding that where defective material caused the injury, the rule as to common employment did not apply; note to 59 Am. Rep. 77. Distinguished in Vaughn v. California, Central R. R. Co., 83 Cal. 23, by Thornton, J., in his concurring judgment, showing that where the employee went out on a train sent to repair a track damaged by washouts, he accepted the risks incident to its passage over the track, and could not recover.

63 Cal. 97-103. LOUP v. CALIFORNIA SOUTHERN RAILWAY COMPANY.

Contract to Pay amount settled by third party; no cause of action arises until the amount is fixed, p. 103.

Cited in Cox v. McLaughlin, 63 Cal. 207, prescribing the necessary averments in an action on contract to recover amounts ascertained by the engineer's estimates; M. E. Church v. Seitz, 74 Cal. 292, distin guishing between a submission to arbitration, and a provision for appraisement; Castagnino v. Balletta, 82 Cal. 253, 260, as authority for reversing the decision on the first appeal (not reported, but see 11 Pac. L. J. 277) because there was no averment of acceptance of the buildings by the architect; McNamara v. Harrison, 81 Iowa, 491, holding that no action can be maintained on a contract providing for pay. ment on the certificate of a third person, until the certificate is given or good reason shown why it has not been furnished. Distinguished in Valley Lumber Co. v. Struck, 146 Cal. 271, where time for third payment to contractor stipulated in building contract was when building and improvements shall be "completed and accepted by architect" fact that owner paid before acceptance does not render payment invalid as to lien holders who had not given notice of claims.

Cited in Roche v. Baldwin, 135 Cal. 527, noted under Holmes v. Richet, 56 Cal. 307; Miller v. Pine Min. Co., 3 Idaho, 495, following rule.

Averment of Corporate Existence of a defendant sued as a corpora tion is necessary, p. 99.

Cited to same effect in People v. Central Pacific, 83 Cal. 399; Miller v. Pine M. Co., 2 Idaho, 1207; 35 Am. St. Rep. 290; State v. Chicago M. etc. R. R. Co., 4 S. Dak. 263; 46 Am. St. Rep. 784; note to 35 Am. St. Rep. 291, on averment of corporate existence. Denied in Los Angeles Ry. Co. v. Davis, 146 Cal. 183, holding in action by corporation to quiet title to land, failure to aver that plaintiff is corporation is not available on demurrer.

Pleading.-Each count must contain in itself facts sufficient to constitute a cause of action, p. 100.

Distinguished in Ward v. Clay, 82 Cal. 506, as not applying to a complaint having but one count, and to which a copy of the note sued on was annexed as an exhibit.

63 Cal. 104-105. HILLS v. OHLIG.

Mechanic's Lien.-A filed claim which accurately states the contract is sufficient, p. 104.

Cited in Tredinnick v. Mining Co., 72 Cal. 80, being an example of sufficient statement; Jewell v. McKay, 82 Cal. 152, holding that the statute only requires the actual agreement to be stated in the notice; Russ Lumber Co. v. Garrettson, 87 Cal. 595, as to sufficient statement of ownership; Kelley v. Plover, 103 Cal. 37, holding the statement "Terms cash on completion of contract" to be sufficient; McClain v. Hutton, 131 Cal. 137, further holding that no time for payment is presumed given when claim is silent; Albrecht v. C. C. Foster Lumber Co., 126 Ind. 319, holding that failure to state that the claim was due did not avoid the lien as between the materialman and the owner; United States Blowpipe Co. v. Spencer, 40 W. Va. 708, holding that the lien can be filed, whether the amount due and owing is then enforceable by suit or not.

63 Cal. 105-106. SAVINGS SOCIETY v. HORTON.

Compound Interest cannot be at a higher rate than that payable on the principal debt, p. 106.

Cited in Dean v. Applegarth, 65 Cal. 393, to same point, and holding that section 1918 of the Civil Code was limited as to compound interest by section 1919 of the Civil Code; Yudart v. Den, 116 Cal. 536, 538-541, 543, 544, 546, 547, 58 Am. St. Rep. 201-207, 209, 210, in which the ruling of the principal case was fully discussed, particularly with reference to Thompson v. Gorner, 104 Cal. 170, and held not to have been overruled (p. 547), holding, further, that if in a contract there is an agreement to pay compound interest at an illegal rate, there is no agreement at all to pay interest on interest, and the court will not aid the contract

(p. 546). Distinguished in Nash v. El Dorado County, 24 Fed. Rep. 256, 11 Saw. 91, holding that the ruling did not apply to coupons on bonds.

63 Cal. 106-107. ESTATE OF KELLEY.

Executor may resist application for order of partial distribution under section 1660 of the Code of Civil Procedure, p. 107.

Cited in Estate of Murphy, 145 Cal. 466, following rule; Estate of Phillips, 18 Mont. 314, explaining the reason for the statutory provision.

63 Cal. 107-112. MARKS v. RYAN.

Fixtures.-Buildings erected on leased land, in the absence of stipulation, belong to landlord, p. 111.

Cited in Switzer v. Allen, 11 Mont. 164, to same effect.

Fixtures put up under a former lease are not removable at end of new lease where no right is reserved, p. 111.

Cited in Wadman v. Burke, 147 Cal. 354, following rule; Sanitary District v. Cook, 169 Ill. 191, 195, 61 Am. St. Rep. 164, 167, to same effect; Spencer v. Commercial Co., 30 Wash. 528, following rule. Note to 53 Am. Rep. 341.

63 Cal. 112-113. CENTRAL PACIFIC v. MEAD.

Title by Adverse Possession is lost by an offer to purchase within the prescribed period, p. 113.

Distinguished in Unger v. Mooney, 63 Cal. 597, holding that an attempt to obtain a quitclaim deed is not within the ruling. Cited in McMahill v. Torrence, 163 Ill. 283, where it is held that a negotiation for purchase of an outstanding interest is a recognition of title and interrupts the running of the statute; note to 95 Am. Dec. 209, on purchase of outstanding claim.

63 Cal. 113-117. LAUGHLIN v. WRIGHT.

Homestead. Besides filing a declaration, the property must be used primarily as a home. Hotel cannot be made a homestead, although the owners live in it, p. 116.

Cited in Hecht v. Slaney, 72 Cal. 366, for the ruling that property used almost entirely for business purposes could not be set apart as a homestead in insolvency proceedings; also in Maloney v. Hefer, 75 Cal. 424, 7 Am. St. Rep. 182, that premises rented to tenants and separated from the residence in the rear by a tight board fence could not be homesteaded; but in Lubbock v. McMann, 82 Cal. 229, 16 Am. St. Rep. 110, the erection of a second house on the homestead property

held not to cause it to lose its homestead character; also cited in same case, 82 Cal. 233; note to 16 Am. St. Rep. 113, by Paterson, J., in his dissenting opinion, and, page 237, by same justice in his concurring opinion in Department; Beronio v. Ventura etc. Co., 129 Cal. 236, 79 Am. St. Rep. 120, holding no valid homestead established; Estate of Levy, 141 Cal. 650, noted under Ackley v. Chamberlain, 16 Cal. 181. Distinguished in Heathman v. Holmes, 94 Cal. 296, in a case where part of the homestead was let off, but not so as to affect the homestead character. Cited in McDowell v. Creditors, 103 Cal. 267, 268, 42 Am. St. Rep. 116, refusing the homestead character to a hotel notwithstanding the owner lived in it with his family; Garrett & Sons v. Jones, 95 Ala. 100, to same effect as to a building of two rooms, one used as a barroom and the other occupied as a bedroom by the owner; Turner v. Turner, 107 Ala. 470, 54 Am. St. Rep. 113, holding that hotel property could not be set part as a probate homestead to the widow, who had a home and resided elsewhere. Distinguished in King v. Welborn, 83 Mich. 198, as to an hotel. Cited in notes to 60 Am. Dec. 350, on Homesteads, nature of occupancy; 76 Am. Dec. 518, on what may be claimed as exempt as homestead; 91 Am. Dec. 644, on use of portion of homestead as a place of business.

63 Cal. 117-118. GIBBS v. BARTLETT.

Mandamus lies to compel the performance of an official duty, p. 117. Cited to same effect in Sansom v. Mercer, 68 Tex. 493, 2 Am. St. Rep. 498, as to the effect of demurring to the complaint when the duty involved the exercise of judgment.

Private Persons may move for mandamus to enforce a public duty, P. 117.

Cited in Kimberly v. Morris, 10 Tex. Civ. App. 601, holding that any citizen can enforce by mandamus the ordering of an election to decide on local option.

63 Cal. 118-119. FARRIS v. MERRITT.

Statute of Limitations.-Bar of cannot be raised by demurrer, unless the complaint contains allegations of all the facts which the defendant would be required to prove under a plea of the statute, p. 119.

Cited in Wise v. Hogan, 77 Cal. 189; Jenness v. Bowen, 77 Cal. 311; Redington v. Cornwell, 90 Cal. 60, all to same effect.

Limitations.-Party sued by fictitious name is a party from the commencement of the action, p. 119.

Cited in Hoffman v. Kreton, 132 Cal. 197, holding action not barred as to such defendant.