RAILROADS (Continued).

4. SECTION 502 OF CIVIL CODE-PROVISIONS FOR FORFEITURE ARE SELFEXECUTING.-Section 502 of the Civil Code, providing that a failure on the part of a street-railway corporation "to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way, works a forfeiture of the right of way and also of the franchise,” etc., is self-executing, and a judgment of forfeiture is not necessary to determine the franchise. (Id.)

5. MUNICIPALITY MAY FORCIBLY RESTRAIN OBSTRUCTION OF STREETS.A street-railway company whose franchise has become forfeited and who was not in possession of the streets may be forcibly restrained by the peace officers of the city from unlawfully entering upon and obstructing the streets. (Id.)

See Eminent Domain, 2-9; Negligence, 29-42.

RECEIVER.

- COLLATERAL ATTACK

1. ORDER APPOINTING PARTNERSHIP-PLEADING APPOINTMENT.-In an action brought by a receiver appointed in an action between partners, under section 564 of the Code of Civil Procedure, the order appointing the receiver is only collaterally involved, and cannot be attacked upon any ground except want of jurisdiction to make it. In the complaint in the action by the receiver, it is not necessary to aver that in the action in which he was appointed the parties were partners. An allegation that the order of appointment was "duly made" is, under the rule of pleading declared in section 456 of the Code of Civil Procedure, equivalent to an averment that all the jurisdictional prerequisites to the appointment of a receiver existed. (Title Insurance and Trust Company v. Grider, 746.)

2. ACTION TO RECOVER PARTNERSHIP ASSETS-PAYMENT TO RECEIVER.In an action by a receiver so appointed, to recover a sum of money received by the defendants under an agreement between them and one of the parties to the action in which the receiver was appointed, the questions as to whether such money was partnership assets and as to its ultimate distribution between the partners, are not involved. So far as such defendants are concerned, the only questions involved are whether the fund in controversy was by the terms of the order placed within the control of the receiver, and whether, as between themselves and the party with whom they made the agreement, the latter was entitled to demand the fund from them. A payment by the defendants to the receiver in such action would fully protect them against any claim as to the ownership of the fund asserted by the party with whom they made the agreement. (Id.)

RECEIVER (Continued).

3. ORDER APPOINTING RECEIVER.-The complaint in this action is reviewed and held sufficient to show that the order appointing the receiver directed him to take into his possession the fund in controversy. (Id.)

4. PARTNERSHIP-AGREEMENT APPOINTING AGENTS TO SELL LAND.— While the question whether or not a partnership exists is to be determined from the nature of the relation agreed upon, rather than the name which the parties have given to it, some weight must be given to the language of the parties themselves. In the present case, an agreement whereby one party appoints the other his "exclusive agents to sell and manage" a tract of land, and provides that such "agency" shall continue for a specified time, is held to create a mere agency and not a partnership, notwithstanding the parties designated as agents were to pay certain expenses of the sale, and for their services were to be paid a certain portion of the net profits.

(Id.)

5. PAYMENT OF AGENTS FROM PROFITS OF SALES.-Where agents are employed to sell and manage a tract of land, under an agreement whereby their agency was to last for a specified period, and for their services they were to receive a portion of the net profits, their right to share in the profits is limited to sales made during the period their agency continued. (Id.)

6. EXPENSES TO BE PAID BY AGENTS.-Where such a contract recites that the agents are appointed in consideration of their "putting in cement walks . . . building four stone pillars writing all advertisements and all advertising, making out all papers and managing the sales" of the land, and further provides that "all the above is to be paid for" by them, the obligation is imposed on the agents to pay such expenses and not merely to advance the same. (Id.)

RECORDING. See Water and Water-Rights, 36.

REDEMPTION. See Execution, 4-8.

RESCISSION. See Agency, 1, 2; Cancellation; Fraud, 5, 6, 9, 11-16; Vendor and Vendee, 1, 2.

RES JUDICATA. See Judgment, 5.

RIPARIAN RIGHTS. See Water and Water-Rights.

SALE.

CONTRACT FOR SALE OF BRUSH-NOTICE TO STOP DELIVERY-RETRACTION OF DIRECTION.-Where a written contract for the sale and delivery of brush, to be prepared for use on a levee, provides that the seller

SALE (Continued).

shall deliver a certain quantity and as much more as he can until stopped by notice from the purchaser, a telegram from the purchaser to the seller, directing him not to deliver more than a certain amount, did not definitely terminate the contract, so as to prevent the parties from verbally agreeing upon a retraction of the direction given in the telegram and for the delivery of further brush under the contract. (Montgomery v. Thomson, 319.)

See Cancellation; Water and Water-Rights, 22-35.

SCHOOLS.

1. PUBLIC SCHOOL-EVENING HIGH SCHOOLS.-Section 6 of article IX of the constitution by enumerating the various classes of schools of the public school system and making evening schools a distinct class in this enumeration should not be construed so as to prevent a school from having the status of a high school merely because its sessions are held in the evening. (Board of Education of the City and County of San Francisco v. Hyatt, 515.)

2. STATE HIGH SCHOOL FUND-SCHOOLS ENTITLED TO BENEFITS-SAN FRANCISCO EVENING HIGH SCHOOL.-Under section 5 of the act of March 6, 1905, limiting the benefits of the state high school fund to high schools that "have been organized under the laws of the state, or have been recognized as existing under the high school law of the state," an evening high school established in the year 1897 by the board of education of the city and county of San Francisco, in pursuance of the power conferred upon them by the act of April 1, 1872, notwithstanding it was not organized pursuant to an election held under the provisions of section 1670 of the Political Code, is one organized under the laws of the state," and the effect of the act of March 15, 1901, and the amendment of the year 1905 to section 1671 of the Political Code, is to make such school one recognized as existing under the high school laws of the state." (Id.)

66

64

3. BOARD OF EDUCATION-ESTABLISHMENT OF HIGH SCHOOL-ACT OF APRIL 1, 1872.-The act of April 1, 1872, giving the board of education of the city and county of San Francisco power "to maintain public schools as now organized in said city and county and to establish additional ones as required," etc., gave it the authority to establish high schools. That act, having been passed before the adoption of the constitution of 1879, was not affected by the constitutional prohibition against the passage of local or special laws. (Id.)

4. CURATIVE ACTS AFFECTING MUNICIPAL PROCEEDINGS.

The legis

lature has power to pass acts curing the failure to comply with

SCHOOLS (Continued).

statutory requirements that might originally have been dispensed with in the proceedings of municipal corporations. (Id.)

5. DURATION OF HIGH SCHOOL SESSIONS.-No law in this state provides for a minimum duration of the sessions of a high school, and the fact that an evening high school has shorter sessions than those of other high schools does not deprive it of the character of a regularly established high school or prevent it from participating in the benefits conferred upon regularly established high schools by the act of March 6, 1905. (Id.)

6. GRADE OF INSTRUCTION-COURSES OF INSTRUCTION.-In order to obtain the benefits of that act an evening high school must have maintained the grade of instruction required by law for high schools, which under subdivision 12 of section 1670 of the Political Code is "such as will prepare graduates therein for admission into the state university," and must have the requisite number of teachers and pupils engaged in such a course. If a school offers two courses of instruction, one of which falls short of this standard, it must be affirmatively shown, in a proceeding to obtain the benefits of that act, that the requisite number of teachers and pupils are engaged in ■ course which complies with such standard. A mere showing that more than two teachers are employed and more than twenty pupils have been in daily attendance in the high school taken as a whole is not sufficient.

(Id.)

7. LENGTH OF COURSE.-Under section 1670 of the Political Code no maximum limit is imposed to the length of a high school course. (Id.)

SPECIFIC PERFORMANCE. See Appeal, 14.

STATE LANDS.

1. NON-AGRICULTURAL SCHOOL LAND

CHASE

- INSUFFICIENT APPLICATION. A qualified person who first makes a proper application for the purchase from the state of its vacant, non-agricultural school land acquires a priority of right; and one who by his own neglect or mistake makes an imperfect and uncertain application to purchase a tract of such land and whose application the agents of the state for that reason refuse to receive or file is afforded no protection and given no priority of right as against another qualified person who makes a proper application for the same land which is received and filed before the first person has again presented his application in an amended and perfect form, except in cases where such first person was occupying the land before the second party made application therefor. (Bieber ▼. Lambert, 557.)

STATE LANDS (Continued).

2. UNCERTAINTY IN DESCRIPTION OF LAND.-An application for the purchase of four hundred acres of vacant, non-agricultural school land in which a tract of forty acres was twice described is uncertain as to the description of the land applied for and it is a proper course for the surveyor-general to return such an application with a statement of the defect. (ld.)

3. CONTEST BY SUBSEQUENT APPLICANT PRESUMPTIONS IN FAVOR OF HOLDER OF CERTIFICATE-JUDGMENT.-In a contest to determine the right to purchase vacant, non-agricultural school land, brought by an applicant who was subsequent in point of time against a prior applicant to whom a certificate of purchase had been issued, and whose papers were apparently regular on their face, the presumptions that the law has been obeyed, that the first applicant is innocent of the crime of perjury, and that official duty has been properly performed avail the defendant, and in the absence of evidence to the contrary are sufficient to establish the right of the holder of the certificate, so far as may be necessary to prevent the plaintiff from obtaining judgment establishing his subsequent claim and to require judgment that plaintiff take nothing by the action. Under such circumstances the defendant is not required to offer evidence in support of his claim. (Id.)

See Public Land; Tide Lands.

STATUTES. See Eminent Domain, 1; Injunction.

STATUTE OF LIMITATIONS.

ABSENCE OF DEBTOR FROM STATE- OPEN OR SECRET RETURN. - Under section 351 of the Code of Civil Procedure, providing that if, after a cause of action accrues against a person, he departs from the state, "the time of his absence is not a part of the time limited for the commencement of the action," a person departing from the state after a cause of action has accrued against him cannot have reckoned in his favor the time of any secret, clandestine, or fraudulently contrived visit to his former residence for the purpose of ascertaining the time of his absence from the state. But if he returns openly, after the action would be barred but for his absence, and especially if his return is not only open and unconcealed, but his visits repeated and prolonged, the fact that his creditor has not learned of his presence in the state before his departure, is immaterial. (Stewart v. Stewart, 162.)

See Boundaries, 1; Estates of Deceased Persons, 23-28; Mortgage, 1, 2; Municipal Corporations, 8-10; Pledge, 1, 2; Tide Lands, 6.