JUSTICE'S COURT (Continued).

17. APPEAL FROM JUDGMENT OF SUPERIOR COURT-LACK OF JURISDICTION OF DISTRICT COURT OF APPEAL-DISMISSAL.-A judgment rendered on a justice's court appeal is not within the appellate jurisdiction of the district court of appeal, and an appeal taken therefrom must be dismissed. (Id.)

LANDLORD AND TENANT.

1. CONTINUANCE OF TENANCY UPON EXPIRATION OF LEASE-CONSTRUCTION OF ORAL AGREEMENT—' -TIME OF PAYMENT OF RENT.-An oral agreement made between the parties to a written lease just prior to its expiration providing that the lessee might remain a tenant of the premises "from month to month at the same rental" as stipulated in the lease, contemplates that the rental shall be continued to be paid in the same manner as provided in the lease. (Rosenbaum Estate Company v. Robert Dollar Company, 576.)

2. REMOVAL FROM DEMISED PREMISES-UNFITNESS FOR HABITATION— NOTICE TO REPAIR.-A tenant is not warranted in removing from demised premises under the provisions of sections 1941 and 1942 of the Civil Code, where no definite notice to repair is given. (Id.) 3. ABANDONMENT OF PREMISES-UNQUALIFIED TAKING OF POSSESSION BY LESSOR-ACTION FOR DAMAGES NOT MAINTAINABLE.-Where the possession of demised premises is vacated by the lessees prior to the expiration of the term, the lessor cannot maintain an action for damages in a sum equal to the difference between the rent which should have been paid under the lease and the amount for which he was able to rent the property for the period of the unexpired term, where he, upon being informed by the lessees of their intention to vacate the premises, took possession of the property and made a new lease thereof, without making any further demand upon the lessees, or in any manner informing them of the course which he would pursue. (Rehkopf v. Wirz, 695.)

4. REPUDIATION OF LEASE BY TENANTS-ACCEPTANCE OF POSSESSION FOR BENEFIT OF LESSEE-DUTY OF LESSOR.-Where a tenant abandons the leased property and repudiates the lease, the landlord may accept possession of the property for the benefit of the tenant and relet the same, and thereupon may maintain an action for damages for the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement. But a lessor who chooses to follow that course must in some manner give the lessee information that he is accepting such possession for the benefit of the tenant, and not in his own right and for his own benefit. (Id.)

5. UNQUALIFIED ACCEPTANCE BY LESSOR - - RELEASE OF LESSEE.-An unqualified taking of possession by the lessor, and reletting of the premises by him as owner to new tenants, is inconsistent with the

LANDLORD AND TENANT (Continued).

continuing force of the original lease. If done without the consent of the tenant to such interference, it is an eviction, and the tenant will be released. If done pursuant to the tenant's attempted abandonment, it is an acceptance of the surrender and likewise releases the tenant. (Id.)

6. RECOVERY OF POSSESSION-WITHHOLDING OF PREMISES-SUFFICIENCY OF EVIDENCE.—In an action for rent and for restitution of premises, a finding that the defendant was withholding the possession of the premises at the time of the commencement of the action is sufficiently supported by evidence that he still had a key thereto, that he had not paid the rent, and that his goods were still contained therein. (Levy v. Henderson, 789.)

7. DENIAL OF LANDLORD'S TITLE-NOTICE TO QUIT.-If a tenant denies his landlord's title, the denial makes him a trespasser, and he is not entitled to notice to quit before the commencement of an action by the landlord to recover possession of the premises.

See Fences, 2; Negligence, 34-37.

LARCENY. See Criminal Law, 24.

LEASE. See Brokers, 5-8; Landlord and Tenant.

LEVEE. See Eminent Domain, 12-14.

LIFE INSURANCE. See Insurance, 1-12.

LOS ANGELES, CITY OF. See Eminent Domain, 4-11.

(Id.)

MANDAMUS. See Conservation Commission, 2-5; Office and Officers, 3, 4, 13.

MASTER AND SERVANT. See Employer and Employee; Negligence,

1-15.

MEASURE OF DAMAGES. See Damages.

MECHANICS' LIENS.

1. EQUITABLE JURISDICTION-APPEAL.-A mechanic's lien is of equitable cognizance, although created by law; and an appeal in an action to foreclose the same lies to the supreme court. (EmighWinchell Hardware Company v. Pylman, 46.)

2. FORECLOSURE-PLEADING-DATE OF COMPLETION OF BUILDING-SurFICIENCY OF COMPLAINT.-In an action to foreclose a mechanic's lien, an allegation that the building was completed "on or about" a specified date, which date was less than thirty days before the

MECHANICS' LIENS (Continued).

alleged date of the filing of the claim of lien, is sufficient to warrant proof of the exact date of completion. (Boscus v. Waldmann, 245.)

3. COMPLETION OF CONTRACT SUFFICIENCY OF AVERMENT.-An allegation in such an action that the building was completed according to the terms of the contract sufficiently shows that the contract was completed. (Id.)

OF

4. BUILDING CONTRACT - - OMISSION TO FILE BOND LIABILITY OWNER. Under section 1183 of the Code of Civil Procedure, as amended in 1911, it is the duty of the owner to exact from the contractor a bond and file the same in the office of the county recorder, if he would restrict his liability to laborers, materialmen, or subcontractors for their claims to the contract price, and where he fails to make such exaction, there is then imposed upon him the penalty of paying all liens to the extent of the value of the work done and materials furnished. (Id.)

5. COMPLETION OF BUILDING BY OCCUPATION - OMISSION TO FILE NOTICE ESTOPPEL.-The owner of a building is estopped from claiming that the lien of a claimant other than the original contractor was not filed within thirty days after occupation of the building, where no notice of such occupation was filed, as the requirement of section 1187 of the Code of Civil Procedure as to the filing of notice of completion applies as well to the statutory completion of a building by occupation, acceptance, or cessation of labor, as to actual completion. (Id.)

See Building Contract, 4-6; Contract, 8.

MONEY HAD AND RECEIVED. See Insurance, 6.

MORTGAGE.

1. FRAUD ON CREDITORS OF MORTGAGOR-INSUFFICIENCY OF EVIDENCEDECISION ON FORMER APPEAL CONCLUSIVE.-In the second trial of an action for the foreclosure of a mortgage, where the court had before it practically the same evidence which was before it upon the first trial and also before the supreme court upon the first appeal, the decision of the supreme court upon such appeal as to the insufficiency of the evidence to support the defense set up by a judgment creditor of the mortgagor that such mortgage was executed with intent to defraud creditors is conclusive upon the second appeal. (Goldner v. Spencer, 13.)

2. RELEASE OF FRACTIONAL ACRE FROM MORTGAGE-ERRONEOUS FINDING RIGHTS OF REDEMPTIONER NOT PREJUDICED-RELEASED PORTION WITHOUT VALUE.-A judgment creditor of the mortgagor, entitled to be a redemptioner of the property to be sold under the decree of foreclosure and sale, is not injured by an erroneous finding that

MORTGAGE (Continued).

a small fraction of an acre had been released from the operation and effect of the mortgage, where it is expressly found that such fraction of land was of practically no value. (Id.)

See Corporation, 5-7.

MUNICIPAL CORPORATIONS.

LIABILITY FOR ELECTRICITY FOR STREET LIGHTING-FAILURE OF PROOF.An electric light and power company engaged in furnishing electricity for lighting dwellings, business places, and streets of a municipal corporation, cannot recover in an action against the city for current consumed in the street lights between the hours of 7 o'clock A. M. and 4:30 o'clock P. M., where the complaint alleges that such current was furnished at the instance and request of the municipality, but the evidence shows that the city expressly notified the power company that it would only pay for electricity furnished between the hours of 4:30 o'clock P. M. and 7 o'clock A. M. (Tuolumne County Electric Power and Light Company v. City of Sonora, 655.)

See County; Irrigation District; San Francisco, City and County of.

MURDER AND MANSLAUGHTER. See Criminal Law, 40-49.

NEGLIGENCE.

1. EVIDENCE-PROOF OF FACT BY INFERENCE.-Direct evidence of a fact in dispute is not required in all cases, as the law recognizes the force of indirect evidence which tends to establish such fact by proving another, which, though not in itself conclusive, affords an inference or presumption of the existence of the fact in dispute. (Arundell v. American Oil Fields Company, 218.)

2. PROOF BY INDIRECT EVIDENCE.-Negligence, like any other fact, may be inferred from a preponderance of the evidence, whether it be circumstantial or direct, and the plaintiff is not required to prove his case beyond a reasonable doubt. (Id.)

3. INJURY TO TOOL-DRESSER ON OIL DERRICK-FALLING OF IMPROPERLY HOISTED CASING-PIPE-INFERENCE OF NEGLIGENCE.-In an action for damages for personal injuries sustained by a tool-dresser in a derrick for drilling an oil well from the falling upon his hand of a joint of casing-pipe which he and the driller in charge were endeavoring to hoist from the well, the negligence of the defendant is sufficiently proven by evidence that the driller adopted a plan of handling the pipe, which was testified to by experts as unsafe, and by not using the elevators provided for the purpose. (Id.)

4. MASTER AND SERVANT-RISKS OF INJURY ASSUMED BY SERVANT.— The ordinary risks which a servant assumes as incidental to his

NEGLIGENCE (Continued).

employment are such as may not be avoided by the exercise of reasonable care by the master or by his servant who is superior to the injured servant.

(Id.)

5. INSTRUCTION-SYMPATHIES AND

PREJUDICES OF JURY-PROPER REFUSAL. An instruction to the effect that the jury should not be governed by sympathy but by the evidence, and that in considering the evidence the jury should not be influenced by the fact that the plaintiff is a laboring man and the defendant a corporation, is properly refused. (Id.)

6. EMPLOYER AND EMPLOYEE-PERSONAL INJURIES FROM ELECTRIC CURRENT CHANGING SWITCH WITHOUT NOTICE.-An employee of a corporation who receives personal injuries from a powerful electric current while engaged in replacing a fuse in the electrical apparatus of the company, under the orders of its chief engineer, whose duty it was to make the repair, the accident resulting from the failure of a switch, used to protect the employees while putting in fuses, to perform its functions, the employee having no knowledge or notice of this change of condition in the switch, and having every reason to believe that by manipulating the switch the current would be completely cut off so that the fuse could be inserted without danger, is entitled to recover from his employer damages for the injury sustained. (Earl v. San Francisco Bridge Company, 339.)

7. CONTRIBUTORY NEGLIGENCE-FAILURE

то EXAMINE APPARATUS

WHEN EXCUSED.-Where the proximate cause of the injury was the failure of the switch to disconnect the current, and this resulted from a change made by the company unknown to the employee, it was not negligence for the latter to assume that conditions were as before, and that the switch would disconnect the current; and he was therefore not chargeable with contributory negligence in not examining the apparatus. (Id.)

8. KNOWLEDGE OF DANGER-EMPLOYEE ACTING UNDER ORDERS.-If the employee had full knowledge of the change in such a case he would not be chargeable with contributory negligence in obeying orders of the chief engineer under whose direct supervision he was acting, unless performance thereof was inevitably or imminently dangerous.

(Id.)

9. EMPLOYERS' LIABILITY ACT ASSUMPTION OF RISK.-Under the Employers' Liability Act in force at the time of the accident in question a defense that the employee assumed the risk of the employment was not open to the defendant. (Id.)

10. MEASURE OF DAMAGES-DISCRETION OF JURY.-In actions for damages for personal injuries it must be largely left to the discretion and sense of justice of the jury, subject to the supervision and correction of the trial court, to determine the amount that will be a