PRACTICE (Continued).

sider any facts appearing in the record of the case and bearing upon the question of diligence and good faith, whether the same occurred before the action was begun or afterward, and in reviewing the action of the superior court, and considering whether or not its discretion was properly exercised, the appellate court should also take such cir cumstances into consideration. (People's Home Savings Bank v.

Sherman, 793.)

3. FACTS SHOWING WANT OF DILIGENCE.-An action by a banking corporation which is in process of liquidation, to recover an unpaid subscription from a former stockholder, who had transferred his stock without consideration, is properly dismissed for want of prosecution, when it appears that the corporation continued to do business for more than three years after its officers knew of its insolvency without questioning the validity of the transfer; that after a call had been made it delayed until the last day possible to bring the action in order to avoid the bar of the statute of limitations, and then brought the action in the wrong county, and that it waited for three years before pressing for hearing a motion to transfer to the proper county, and more than a year after issue joined before taking any steps to bring the cause to trial, during all of which time constant and repeated efforts were being made to settle and adjust the case. (Id.)

4. AMENDMENT OF COMPLAINT - IMPOSITION OF TERMS APPEAL APPROPRIATION OF WATER.-Where on the trial of an action to quiet title to the appropriated waters of a specified stream, the plaintiff, after a jury have been impaneled, asks leave to file an amended complaint setting up title by appropriation to the mingled and combined waters of such stream and another stream, in lieu of his claim of title to the waters of the stream specified in the complaint, it is within the discretion of the trial court, under section 473 of the Code of Civil Procedure, to allow the amendment, and to impose such terms as may be just; and the appellate court will not review the exercise of the discretion, but may review the justness of the terms imposed. And it is not necessary that the propriety of imposing terms should be shown by affidavits, where the motion for the amendment is made in open court, and the defendant resists it on the ground that if allowed he would not be able to go on with the trial, and that a continuance would be necessary. (Williams v. Myer, 714.)

5. JUSTICE OF TERMS IMPOSED-PER DIEM AND MILEAGE OF GENERAL JURY PANEL.-In granting leave to file the amended complaint, under such circumstances, the court is limited in the imposition of terms to such only as are just,—that is, to such as will compensate the adverse party for the loss or inconvenience which he will suffer by granting the application,-and is not limited to imposing only such costs as might be properly taxed in the case. Within this rule the court may require the payment by plaintiff of the fees paid

PRACTICE (Continued).

by the defendant for the per diem of jurors impaneled and sworn to try the case, the expenses incurred by the defendant in obtaining the attendance of witnesses and in the employment of attorneys, and his own expenses in attending the trial, but cannot, in addition, require the payment to the clerk of the court for the county of the per diem and mileage paid by and due from the county to the general panel of jurors summoned for the trial. (Id.)

6. PAYMENT OF JUST TERMS.-If the court in fixing the terms for the granting of the amendment imposed the payment of an aggregate sum, some of the items of which are just and some unjust, it was not incumbent on the plaintiff to offer to pay the amounts which he deemed were properly assessed in order to avail himself of the error of the trial court in imposing the unjust items; nor is it material that the court might have refused to allow the amendment unconditionally.

(Id.)

7. GOOD FAITH OF AMENDMENT-REVIEW OF ORDER REFUSING AMENDMENT EVIDENCE.-In reviewing the refusal of the court to grant the amendment to the complaint unless the unjust terms were complied with, it must be assumed that the amendment was sought in good faith, and that the allegations in respect to the appropriation of the combined waters were true. And such error will not be deemed harmless, as there could be no trial of the cause on its merits, nor determination of the plaintiff's rights, by limiting the inquiry to the appropriation of the waters of the single stream specified in the complaint; and especially will the error not be deemed harmless where the defendant, on the cross-examination of the plaintiff's witnesses, and in introducing evidence in support of his own case, brought out the fact that the plaintiff's lands were watered by such combined waters, and the court again refused to permit the amended complaint to be filed in order that the pleadings and proof might conform. (Id.)

See Appeal; Attachment; Bill of Exceptions; Certiorari; Costs; Ejectment; Evidence; Findings; Injunction; Judgment, audamus; New Trial; Parties; Place of Trial; Pleading.

PRESCRIPTION. See Evidence.

PRINCIPAL AND AGENT. See Agency.

PROHIBITION. See Attorney and Client, 6; Divorce, 3.

PROMISSORY NOTES.

1. CONSIDERATION-SALE OF STOCK-SUPPORT OF FINDING.-In an action upon a note, the consideration of which was assailed, a finding that the consideration was the sale of shares of stock in a corporation is sufficiently sustained where testimony for the plaintiff, an admission in the answer, and the terms of the contract of purchase

PROMISSORY NOTES (Continued).

showed that it was a sale, and it appears that the stock was transferred on the books in the name of the purchasers, who finally disposed of the same as owners. (Commercial and Savings Bank of San Jose v. Pott, 358.)

2. TERMS OF CONTRACT-COLLATERAL SECURITY-DIVIDENDS-POWER OF DISPOSITION.-The fact that the contract provided that the stock was to be held by the vendor as collateral security for the purchase money, and that while so held all dividends thereon should be owned by and paid to the transferees, does not tend to negative their ownership of the stock where it also gave them full power to sell and dispose of the stock while so held. (Id.)

3. ACTION UPON SECURED NOTE OF ONE PURCHASER-EVIDENCE-ORAL AGREEMENT GUARANTY TO CO-PURCHASER.-Where the note sued upon was the secured note of one purchaser of the stock, to which the other was not a party, evidence that the payee had given to the other purchaser an oral promise to guarantee him against liability on the note in suit was immaterial for the want of such liability, and incompetent to affect any right of contribution between the co-purchasers upon payment of the note, and also as being inadmissible to change or vary the terms of the written contract for sale of the stock by any prior or subsequent oral agreement. (Id.)

4. EVIDENCE-ACTUAL VALUE OF STOCK AT TIME OF SALE-QUALIFICATION OF WITNESSES-MARKET VALUE.-It was not error to exclude the evidence of witnesses as to the actual value of the stock at the time of the sale, with respect to which there was no evidence of their qualification to testify on that subject, where it appears that so far as its market value was concerned they were allowed to testify. (Id.)

5. FICTITIOUS MARKET VALUE OF STOCKS-IRRELEVANT EVIDENCE.Where there was no evidence showing that the stock in question had any fictitious value in the market, it was not error, after appellants' witnesses had been allowed to testify as to the absence of a market value of the stock, to exclude as irrelevant a general question whether stocks may not have a fictitious value in the market. (Id.)

6. CONSTRUCTION OF ISSUES AND FINDINGS-FRAUD-CONTRACT AS TO INTEREST AND DIVIDENDS-NON-LIABILITY FOR INTEREST-DEFENSE NOT PLEADED.-Where the court found for plaintiff for the note and unpaid interest and against the defenses of want of consideration and fraud of the vendor of the stock in misrepresenting its value, and the answer in pleading the fraud set forth part of the terms of the contract representing and guaranteeing that interest would be kept paid out of dividends, and alleged there were no dividends or resources therefor, but did not especially plead the defense of non-liability for interest, the court was not required to

CL Cal.-56

PROMISSORY NOTES (Continued).

find thereupon, or to find whether there were sufficient dividends paid upon the stock to discharge the interest on the note.

(Id.)

7. ILLEGAL CONSIDERATION - GAMBLING DEBT NON-NEGOTIABILITY— DEFENSE AGAINST PURCHASER.-Promissory notes given solely to evidence an alleged indebtedness for money lost by the payor to the payee at a gambling game in a gambling-house are based upon an immoral and illegal consideration; and where they are nonnegotiable, neither the payee nor any subsequent purchaser can recover upon the notes. (Union Collection Company v. Buckman, 159.)

8. NEGOTIABLE NOTES-PRIMA FACIE EVIDENCE OF NOTICE-BURDEN OF PROOF-FINDING.-Even where notes are negotiable, proof that they are based upon an illegal consideration makes out a prima facie case of notice of the illegality to a purchaser thereof; and the burden of proof that he took without notice and for value before maturity is thrown upon him; and in the absence of such proof the finding must be that a plaintiff purchaser is not a holder without notice and for value. (Id.)

9. RENEWAL NOTES-ILLEGAL.-Any renewal notes given in place of the original notes based upon an illegal consideration are affected with the same illegality. Merely repeating a promise based on an illegal consideration cannot give it validity. (Id.)

10. COMPROMISE OF ILLEGAL NOTES.-Whatever may be the rule as to the effect of compromise of a doubtful claim, it can have no application when the claim involved in the compromise is wholly based upon an unlawful consideration, as distinguished merely from an insufficient consideration. (Id.)

11. PROVINCE OF COURT TO WITHHOLD RELIEF-PUBLIC POLICY-CONSENT OF PARTIES IMMATERIAL.-The rule that the courts will not entertain any action in affirmance of an illegal contract is not based upon any consideration for the party against whom the relief is sought, but upon considerations of sound public policy; and notwithstanding his express consent that the court may enforce such illegal contract, if the illegality appears, the court will sua sponte withhold all relief. No action of the parties, nor of their assignees, can so validate an illegal contract as to justify the court in enforcing it where its illegality is manifest. (Id.)

12. IMMATERIAL OMISSION IN FINDINGS.-Where, under the findings made in reference to the illegality of the consideration, the judgment for the defendant is supported, the failure to find upon other affirmative defenses in the answer is immaterial. (Id.)

See Insurance, 29-32.

PUBLIC LANDS.

1. RAILROAD GRANT-RESERVATION WITHIN INDEMNITY LIMITS.-South ern Pacific R. R. Co v. United States, 168 U. S. 1, followed to the

1

PUBLIC LANDS (Continued).

effect that lands within the indemnity limits of a railroad grant, which were reserved at the time of the grant but subsequently restored to the public domain, could not, after such restoration, be selected by the railroad company in lieu of losses within the primary limits of its grant. (Wilson v. Southern Pacific Railroad Company, 731.)

2. HOMESTEAD CLAIM-LAND ACTUALLY POSSESSED NOT SUBJECT TO ENTRY.-Public land of the United States actually occupied and possessed by one who has it inclosed by a substantial fence, and is using it for agricultural purposes, without other right, is not subject to entry by a qualified claimant under the Homestead Laws of the United States; and the process of obtaining from the officers of the United States a certificate of such entry, and a receipt for fees paid, in pursuance of a declaration of his intention to settle upon the land as a homestead, filed with them, does not authorize him to go upon the land so possessed and oust the prior possessor, or to recover the possession in an action against him. (Gragg v. Cooper, 584.)

3. EXCEPTIONS TO RULE - LAND POSSESSED CONSTRUCTIVELY OR IN PART SUBJECT TO ENTRY.-If public land is possessed only constructively, or is actually possessed only in part of a quarter-section, such possession does not preclude a qualified homestead claimant who has filed upon a quarter-section from entering upon that part of the homestead claim not actually possessed, and thus obtaining a title to the whole quarter-section, which will prevail as to the whole land declared upon. But these exceptions have no application where the whole land declared upon is in the actual possession of another. (Id.)

QUANTUM MERUIT. See Contract, 2-5.

QUIETING TITLE.

1. ACTION TO QUIET TITLE CROSS-COMPLAINT JUDGMENT FOR DEFENDANTS-WAIVER OF OBJECTION.-Where the defendants in an action to quiet title sought by cross-complaint to quiet their title against the plaintiff, and without objection thereto by demurrer or motion to strike out plaintiff answered the cross-complaint, and a trial was had upon the merits, and judgment was rendered affirmatively, quieting the title of defendants, the plaintiff must be deemed to have consented to the mode of procedure, and the objection that affirmative relief could not be granted to defendants under their cross-complaint cannot be urged by plaintiff upon appeal for the first time without regard to the question of merit in the objection. (Johnson v. Taylor, 201.)

2. SUFFICIENCY OF COMPLAINT OWNERSHIP IN FEE.-A complaint in an action to quiet title which alleges that "plaintiff now is, and