NOVATION (Continued). by the foreman of a corporation engaged in the construction of a dam that the corporation would pay for certain supplies which had been furnished to the person who had the contract for the hauling of the necessary gravel for the work, is binding on the corporation, and without the statute of frauds, where it is shown that such foreman had authority to hire and discharge men and to procure needed supplies, and that the promisee accepted the new promise and canceled the antecedent obligation. (Baxter v. Chico Construction Company, 492.) OFFICE AND OFFICERS. 1. PUBLIC OFFICERS SERVICES OF SHERIFF IN CONVEYING PRISONERSUNWARRANTED DISALLOWANCE OF CLAIM BY BOARD OF CONTROLOVERCHARGE FOR PREVIOUS SERVICES.-The State Board of Control is without power to refuse to allow the claim of the sheriff of a county for services rendered and expenses necessarily incurred in conveying persons adjudged by the superior court to be committed to state prisons and other state institutions, on the ground that such official was indebted to the state in a certain amount for similar services rendered in previous years which he had received and which was in excess of that to which he was justly and legally entitled. (Hammel v. Neylan, 21.) 2. SERVICES IN CONVEYING PERSONS TO STATE INSTITUTIONS-ALLOWANCE OF CLAIM BY STATE BOARD OF CONTROL.-Under the provisions of section 4290 of the Political Code, the sheriff of a county is entitled to receive and retain for his own use the sum of five dollars per diem for conveying prisoners to and from the state prisons, and for conveying persons to and from insane asylums, together with all expenses necessarily incurred therewith, subject only to the condition that his claim therefor is properly presented to the State Board of Control, as provided by section 663 of the Political Code, for its scrutiny, which scrutiny and examination is limited by such provision to an inquiry as to whether such officer has rendered the services set forth in his claim and whether the amount claimed for expenses was necessarily incurred in the performance thereof. (Id.) 3. REFUSAL TO ALLOW CLAIM-REMEDY OF CLAIMANT.-Upon the refusal of the board of control to allow such a claim upon the ground of overcharges made in previous years, the remedy of the claimant is mandamus, and not by appeal to the legislature, as under the provisions of section 671 of the Political Code the latter remedy is only applicable where the board finds that the services were not performed or the expenses not incurred. (Id.) 4. MANDAMUS-ABUSE OF DISCRETION-ENFORCEMENT OF PARTICULAR ACTION. While it is the general rule that where an officer, board, or tribunal is vested with power to determine a question upon OFFICE AND OFFICERS (Continued). which a right depends, mandamus will not lie to control the discretion of such officer, board, or tribunal in the determination thereof, nevertheless the writ will lie to correct abuses of discretion, and to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action. (Id.) 5. PUBLIC OFFICERS-RECALL-IRRIGATION DISTRICT OFFICERS-ACT OF 1911-CONSTITUTIONALITY OF.—The act of 1911 providing that the holder of any elective office of any irrigation district may be removed or recalled at any time by the electors does not violate section 18 of article IV or section 1 of article XXIII of the constitution, and is valid. (Wigley v. South San Joaquin Irrigation District, 162.) 6. POWER OF Legislature-Construction of SECTION 18, ARTICLE IV, AND SECTION 1, ARTICLE XXIII, OF CONSTITUTION.-Prior to the adoption of the constitutional provisions upon the subject, the legislature had the power, under its general legislative authority, to pass acts for the recall of public officers; and neither section 18 of article IV nor section 1 of article XXIII of the constitution can be construed to have taken that power from it. (Id.) 7. CONSTRUCTION OF CONSTITUTION RESTRICTION OF LEGISLATIVE POWERS.-The constitution of this state is not to be considered as a grant of power, but rather as a restriction upon the powers of the legislature, and it is competent for the legislature to exercise all powers not forbidden by the constitution of the state, or delegated to the general government, or prohibited by the constitution of the United States. (Id.) 8. SAN BERNARDINO COUNTY CHARTER - AMENDMENT CONCERNING COUNTY OFFICERS-EFFECT OF.-The amendment to the charter of the county of San Bernardino approved by the electors at the general election held in November, 1914, and approved by the legislature by resolution which was filed with the Secretary of State January 30, 1915 (Stats. 1915, p. 1727), which, without naming any of the seven articles contained in such charter, purported to strike from such instrument "sections 4, 5 and 6 of said charter" and insert in lieu thereof the following amendment to be known as section 4 thereof, to wit: "Section four (4): All county officers other than supervisors of said county shall be elected at each general election by the qualified electors of said county as is now, or may be hereafter provided by general law, and all deputies and assistants to such county officers shall be appointed as is now or may be hereafter provided by general law; and the powers and duties of such officers, deputies and assistants shall be such as are now or may be hereafter provided by general law, and any part of this charter in conflict herewith is hereby repealed," is fatally. defective as an attempted direct repeal of any sections of the OFFICE AND OFFICERS (Continued). original charter, because it is impossible to determine what sections of the charter are intended to be repealed; but such amendment is effective in that it adds to the charter a new section, and by so doing impliedly repeals those provisions contained in the original charter which relate to the same subject matter as the new section and are in conflict therewith. (More v. Board of Supervisors of the County of San Bernardino, 388.) 9. COUNTY OFFICERS SHERIFF AND CORONER-CHARTER PROVISIONS NOT REPEALED BY AMENDMENT.-Section 1 of article II of the charter of the county of San Bernardino which provides for certain county officers, including a sheriff and a coroner, and section 2 of the same article which provides that the sheriff shall be ex-officio coroner, were not repealed either expressly or impliedly by the charter amendment adopted at the general election held in November, 1914. (Id.) 10. CONSOLIDATION OF OFFICES OF SHERIFF AND CORONER VALID CHARTER PROVISION.-The office of coroner is a separate office from that of sheriff, with separate, duties and powers as provided by law, and when the sheriff is performing the duties of coroner he is in contemplation of law the coroner of the county as distinctly and completely as any other duly appointed or elected person would be when lawfully performing those duties, and therefore, the powers and duties pertaining to the office of coroner are not affected by the charter provision that the person appointed as sheriff shall also be the coroner. (Id.) 11. OFFICERS PROVIDED FOR BY CHARTER NOT ABOLISHED BY AMENDMENT. Such amendment in providing that all county officers other than the supervisors shall be elected as is now or may be hereafter provided by general law, and that the powers and duties of such officers shall be such as are now or may be hereafter provided by general law, did not intend to refer only to those officers provided for by general law, and thereby eliminate some county officers provided for by the charter and not by general law, so that such offices ceased to exist. (Id.) 12. CHARTER PROVISIONS AS TO CONSOLIDATION OF COUNTY OFFICESSECTION OF POLITICAL CODE-PROVISIONS NOT SUPERSEDED BY.-The provisions of the charter of the county of San Bernardino with respect to the consolidation of county offices, even under such charter amendment, are not superseded by the terms of section 4017 of the Political Code upon the same subject, and which does not provide for the consolidation of the offices of sheriff and coroner, in view of section 71⁄2 of article XI of the constitution, which provides that county charters shall provide "for the consolidation and segregation of county offices." (Id.) 13. POLICE OFFICER-REINSTATEMENT - MANDAMUS-STATUTE OF LIMI TATIONS.—The right of a member of the police department of the OFFICE AND OFFICERS (Continued). city and county of San Francisco, whose resignation was accepted See Conservation Commission; County; Justice's Court, 3, 4; San PARENT AND CHILD. See Divorce, 6, 7, 10, 11. PARKS. See Eminent Domain, 4-11. PARTIES. 1. BANK DEPOSIT-ATTACHMENT OF S ---SUBSTITUTION OF PARTIES.-Under the provisions of section 386 of the Code of Civil Procedure, in an action brought against a bank by a married woman to recover money on deposit therein in her name, which the bank refused to pay to her because it had been attached for a debt of the husband under the claim that it was his money, the bank has the right, upon payment of the money into court, to have the plaintiff in the attachment suit substituted as party defendant in its place. (Youtz v. Farmers & Merchants' National Bank of Los Angeles, 370.) 2. PURPOSE OF SECTION 386, CODE OF CIVIL PROCEDURE-ConstrucTION.--The design of section 386 of the Code of Civil Procedure is to enable a party who has been sued upon a contract as to which he admits full liability as to the amount thereof to show that a third party not named in the action claims some right to the proceeds of the contract either by way of complete ownership or that he possesses a lien against the same; and so showing, to deposit the money due in court and have the third party made defendant in his stead, thus placing in positions of adversaries the real parties at interest. (Id.) PARTNERSHIP. See Account Stated, 6, 7. PHYSICIANS AND SURGEONS. See Negligence, 31-33. PLACE OF TRIAL. 1. CHANGE OF PLACE OF TRIAL AFFIDAVIT OF MERITS-AFFIDAVIT OF THIRD PARTY-SECTION 396, CODE OF CIVIL PROCEDURE.—An affidavit of merits, under section 396 of the Code of Civil Procedure, on motion for a change of place of trial, may be made by any person on behalf of the defendant who is sufficiently familiar with the facts of the case to make the same. (Gardner v. Steadman, 447.) 2. INSUFFICIENT AFFIDAVIT AMENDMENT.— —An affidavit of merits, on motion for a change of place of trial, made by the defendant's wife, which is insufficient by reason of containing affiant's mere conclusion as to defendant's residence, may be amended, and the affidavit of residence and merits of the attorney for the defendant, which is admittedly sufficient in form, may be considered as an amendment to the prior affidavit. (Id.) PLEADING. See Attachment, 5; Brokers, 5; Contract, 4, 7, 11; Corporation, 3; Employer and Employee; Husband and Wife, 4; Insurance, 1, 5; Mechanics' Liens, 2, 3; Vendor and Vendee, 5, 7. PLEDGE. 1. ASSIGNMENT OF PLEDGED COMMERCIAL PAPER-RIGHTS OF ASSIGNEE. A pledgee of commercial paper may assign and deliver the same, and, in the event of such transfer, the assignee holds it in the same capacity as the original pledgee, and may bring suit to collect the collateral note when due. (Pease v. Fitzgerald, 727.) 2. ACTION BY ASSIGNEE-FRAUD IN PROCUREMENT OF NOTE-DEFENSE WHEN NOT AVAILABLE.-In an action brought by the assignee of a pledged promissory note to recover the amount alleged to be due thereon, the maker cannot set up as a defense to the action that the note, which was given as the purchase price of certain corporate stock for which he subscribed, was procured through the false and fraudulent representations of the agent who acted for the corporation, where such defendant at the time of making his subscription, signed a memorandum attached thereto to the effect that his subscription was based upon the printed literature and printed statements of the corporation, and that no representations made by its agents not in accordance therewith should be binding upon the corporation. (Id.) 3. JUDGMENT-SALE OF STOCK BY PLEDGEE-STRIKING OUT OF INJUNCTIVE ORDER-LACK OF JURISDICTION.-Where in an action involving the ownership of certain shares of stock in the possession of the defendant, it is apparent from the pleadings and the findings that the purpose of the action was to have it declared that the defendant held the stock as pledgee, and to prevent him in the meantime from |