To same effect in People v. Miller, 122 Cal. 93, holding venue sufficiently proved.

73 Cal. 125-137. LAMB v. RECLAMATION DISTRICT NO. 108. 2 Am. St. Rep. 775.

Waters.-Landowner may build levee against overflow of navigable river although other lands may be overflowed in consequence thereof, p. 130.

To same effect in McDaniel v. Cummings, 83 Cal. 520, denying right of upper owner to enjoin erection of such levee by lower; but see Gray v. McWilliams, 98 Cal. 162, 35 Am. St. Rep. 168, ruling aliter as to embankment against surface water caused by seepage through levee; De Baker v. Railway Co., 106 Cal. 280, 285, 274, 46 Am. St. Rep. 244, 248, 253, as to construction of such levee by city, but (last page cited) distinguishing case as stated in complaint; but see Rudel v. Los Angeles, 118 Cal. 288, enjoining supervisors from diversion of water into natural channel where overflow caused thereby; Cass v. Dicks, 14 Wash. 80, 53 Am. St. Rep. 863, sustaining erection of dikes by lower owner to prevent influx of surface water; Gulf etc. Co. v. Clark, 101 Fed. 681, noted under Barnes v. Marshall, 68 Cal. 569; Sanguinetti v. Pock, 136 Cal. 473, applying rule to overflow of water from slough. Distinguished and criticised in O'Connell v. Railway Co. 87 Ga. 252, 27 Am. St. Rep. 251, holding owner liable for damages caused opposite owner in flood times by erection of embankment. Note citations: Gerrish v. Clough, 97 Am. Dec. 567, 568, on general subject.

Reclamation District is public corporation and may protect its property from overflow by navigable river, p. 130.

To same effect in Sels v. Greene, 81 Fed. Rep. 555, 557, holding it not liable for excavating ditches, although complainant's land flooded thereby.

73 Cal. 137-142. GLASCOCK v. CENTRAL PACIFIC RAILROAD CO. Contributory Negligence is question of law when facts undisputed, p. 141.

To same effect in Fagundes v. Railroad Co., 79 Cal. 100, and Kenna v. Railroad Co., 101 Cal. 31, sustaining nonsuit; Orcutt v. Railway Co., 85 Cal. 298, Nagle v. Railroad Co., 88 Cal. 91, and McGraw v. Lumber Co., 120 Cal. 580, as to contributory negligence, also cited below; Baddeley v. Shea, 114 Cal. 7, 55 Am. St. Rep. 60, as to negligence, and holding rejection of instruction erroneous; Lambert v. Southern Pacific R. R. Co. 146 Cal. 236, applying rule where deaf man drove team on railroad crossing without looking for train where track was visible for quarter of mile; Green v. S. P. Co., 132 Cal. 258, noted under Robinson v. W. P. R. R. Co., 48 Cal. 426; Chicago etc. Ry. Co. v. Pounds, 1 Ind. Ter. 69, 73. Note citations: Mynning v. Railroad Co., 8 Am. St. Rep. 813, 814, on general subject.

Contributory Negligence is complete defense, although defendant also negligent, p. 141.

To same effect in Trousclair v. Steamship Co., 80 Cal. 525, as to want of attention to approach of trains; Orcutt v. Railway Co., 85 Cal. 298, as to allowing animals to stray on track, where no signal given at crossing, but holding such contributory negligence not proximate cause under facts; Nagle v. Railroad Co., 88 Cal. 92, as to alighting from train in dark; Holmes v. Railway Co., 97 Cal. 168, and Kenna v. Railroad Co., 101 Cal. 39 (both cited in Everett v. Railway Co., 115 Cal. 123, 124), as to walking on railroad track; concurring opinion in Clark v. Bennett, 123 Cal. 282, and Green v. S. C. Ry. Co., 138 Cal. 3, noted under Flemming v. W. P. R. R. Co., 49 Cal. 257; Sego v. S. P. Co., 137 Cal. 408, as to lack of attention to approach of train at crossing; Pepper v. S. P. Co., 105 Cal. 400, and Louisville etc. Co. v. Webb, 90 Ala. 196, as to crossing track, although no signal given; Patnode v. Harter, 20 Nev. 307, as to use of defective appliances. Note citations: See above.

73 Cal. 142-152. IN RE SIC.

Municipal Ordinance is void when punishing acts punishable under general laws, p. 146.

To same effect in Ex parte Christensen, 85 Cal. 211, as to license ordinance, but sustaining portion regulating fee when separable from that as to penalty; and on same point Ex parte Mansfield, 106 Cal. 405, and Ex parte Stephen, 114 Cal. 282; Ex parte Taylor, 87 Cal. 96 (and see p. 95), but holding no conflict where penalty of ordinance was of same character, but smaller; Ex parte Hong Shen, 98 Cal. 685, sustaining ordinance as to sale of opium, although other and different regulations prescribed; In re Ah Kit, 45 Fed. 794, but deciding case on other points; but see Hood v. Von Glahn, 88 Ga. 408, holding such ordinance valid. Judy v. Lashley, 50 W. Va. 631, as to carrying of concealed weapons. Distinguished in State v. Preston, 4 Idaho, 219, city ordinance punishing vagrancy is valid though there is state law punishing same offense, as state law under which city is organized authorizes such ordinance.

73 Cal. 153-154. BOYLE ICE MACHINE CO. v. GOULD.

Fixtures.-Mortgagee of Lessee who has erected fixtures is entitled thereto as against subsequent execution purchaser of lessee, p. 154. To same effect in Breweries v. Schurtz, 104 Cal. 427, as to store fixtures.

73 Cal. 157-165. GOLSON v. DUNLAP.

If trustee purchase from himself transaction is voidable at election of cestui que trust, p. 159.

Approved in Dundon v. McDonald, 146 Cal. 589, applying rule where bonds belonging to insolvent bank were pledged by it for debt and on settlement of debt were assigned by it to agent of creditors, but assignment secretly made for benefit of bank's president.

Judgment is reversible where court fails to find upon material issue, p. 161.

Approved in Kusel v. Kusel, 147 Cal. 57, subsequent action for maintenance, begun by wife has no effect upon running of statutory period of one year necessary to make wife's desertion ground for divorce, and finding as to such action does not dispense with finding on issue of desertion.

Trustees. Inadequacy of Consideration in purchase by, raises presumption of fraud, p. 163.

To same effect in Woodroof v. Howes, 88 Cal. 187, as to dealings with corporation by its directors. Note citations: Assurance Co. v. Scammon, 9 Am. St. Rep. 620, on general subject.

Constructive Fraud.-Complaint based thereon must state facts constituting same, p. 164.

To same effect in Feeney v. Howard, 79 Cal. 529, 12 Am. St. Rep. 165, as to violation of fiduciary relation; Bickle v. Irvine, 9 Mont. 253, on point that sheriff cannot in justification set up fraudulent transfer under general denial.

Decree of Distribution is not conclusive as to matters not litigated thereon, p. 165.

To same effect in Goldtree v. Allison, 119 Cal. 345, but holding same conclusion as adjudication of validity of trust in will.

Equitable Defense may be made subject of separate action, although not pleaded in prior one as defense, p. 165.

See note to Railway Co. v. Wells, 54 Am. St. Rep. 225, on general subject.

73 Cal. 166-174. WISE v. BURTON. S. C. 73 Cal. 174.

Survey. Location of boundary lines discussed, p. 171.

Cited in O'Hara v. O'Brien, 107 Cal. 314, holding finding as to location unsupported by evidence. Note citations: Mills v. Penny, 7 Am. St. Rep. 475, on general subject.

Specification of Particulars of Insufficiency may be general when findings are general, p. 167.

Overruled in De Molera v. Martin, 120 Cal. 547, discussing subject generally.

73 Cal. 174-176. WISE v. BURTON. S. C. 73 Cal. 166.

Failure to Find on material issue is not error when no evidence thereor, p. 175.

To same effect in Himmelman v. Henry, 84 Cal. 105, 106, but qualified; Rogers v. Duff, 97 Cal. 69, holding against assumption of introduction of such evidence; Klokke v. Escallier, 124 Cal. 300, holding failure to find immaterial; and to same effect, see Callahan v. James, 141 Cal. 294, applying rule in action to quiet title.

73 Cal. 176-181. CONNEAU v. GEIS; 2 Am. St. Rep. 785.

Jury Fees may by rule of court be ordered deposited in advance by party demanding jury, p. 177.

To same effect in Bank v. Sherer, 108 Cal. 516, where affirmed; dissenting opinion, Pleyte v. Pleyte, 1 Colo. App. 82, main opinion ruling aliter in divorce cases under local statutes; Knee v. Railway Co., 87 Md. 630, sustaining local statute thereon; Clayton v. Clark, 55 N. J. L. 541, but holding decision unnecessary on point; Cited in State v. Cherry, 22 Utah, 5, noted under Hellman v. MeWilliams, 70 Cal. 449. Distinguished in Randall v. Kelsey, 7 Idaho, 170, court cannot make rule requiring litigant to deposit jurors' fees as condition precedent to right to jury trial. Note citations: State v. Gideon, 41 Am. St. Rep. 640, on rules of court.

73 Cal. 182-185. BAKER v. FIREMAN'S FUND INSURANCE CO. Venue.-Action to redeem from mortgage in form of deed absolute must be brought in county of location, p. 184.

To same effect in Smith v. Smith, 88 Cal. 578, but holding aliter where such deed covers personalty as well; Bailey v. Cox, 102 Cal. 336, as to action to cancel mortgages by corporation to president. Note citations: Morris v. Railway Co., 22 Am. St. Rep. 24, on general subject.

73 Cal. 187-190. FRASER v. OAKDALE LUMBER AND WATER CO. Demurrer will not Lie because of improper uniting of causes in one count, p. 190.

To same effect in City etc. Works v. Jones, 102 Cal. 510, holding remedy to by motion; Sutter County v. McGriff, 130 Cal. 126, noted under Bernero v. Insurance Co., 65 Cal. 386.

73 Cal. 190-191. FARIS v. LAMPSON.

Failure to File Brief for appelant will justify affirmance without examination of record, p. 191.

To same effect in Peek v. Peek, 75 Cal. 299, but considering brief— although on merits only-when filed after time allowed by law; Drexler v. Tobacco Co. 78 Cal. 625, so affirming judgment. Note citations: Chapman v. Council, 13 Am. St. Rep. 686, on appellate proceedings.

73 Cal. 191-193. REYNOLDS v. LINCOLN.

Adverse Possession.-Essentials of when under color of title, stated p. 192. See note to Wilson v. Atkinson, 11 Am. St. Rep. 307, on general subject.

73 Cal. 193-195. BALL v. NICHOLS.

On Appeal by one of Several Defendants, defects in complaint which only affect rights of defendants not appealing are not considered, p. 194. Approved in School District v. Flanigan, 28 Colo. 433, applying rule on appeal in mandamus.

Adverse Possession.-Payment of Taxes need not be pleaded by claim. ant, p. 195.

To same effect in Railroad Co. v. Whitaker, 109 Cal. 273, applying rule to findings. Note citations: Wren v. Parker, 14 Am. St. Rep.

130, on general subject.

73 Cal. 196-199. HILTON v. YOUNG.

Vendor and Vendee.-Deed by vendee of portion of land operates as pro tanto assignment of his contract, p. 197.

To same effect in Brock v. Pearson, 87 Cal. 584, as to deed of interest by assignee from vendee.

73 Cal. 202-204. IN RE CARPENTER.

Probate Appeal does not lie from order appointing special administrator, p. 203.

To same effect in In re Ohm, 82 Cal. 162, as to order authorizing suit by creditor in administrator's name to recover assets of estate.

73 Cal. 204-205. SMITH v. STOCKTON.

Proposed Statement on New Trial, which fails to contain specification of particulars wherein evidence is insufficient, may be amended within reasonable time after its proposal, p. 205.

Approved in Miller v. Hunt, 7 Idaho, 489, when proposed statement on motion for new trial is served on adverse party within statutory time and no amendments thereto are proposed, statement may be presented to judge or delivered to clerk for settlement within any reasonable

time thereafter.

73 Cal. 206-210. RIED v. RIED.

Reporter's Transcript of Evidence is not admissible on second trial when not previously filed, p. 207.

To same effect in People v. Grundell, 75 Cal. 303, but admitting in