MARRIAGE (Continued). as facts proved in other cases, was to enable parties to or persons present at the solemnization of a marriage to testify to the facts within their knowledge that such marriage actually took place, and when to such testimony the additional evidence is educed showing that since the marriage the parties have deported themselves as husband and wife, a prima facie case has been sufficiently shown. (Budd v. Morgan, 741.) See Alienation of Affections, 1. MINORS. See Divorce, 1; Workmen's Compensation Act, 3. MISCONDUCT. See Appeal, 18. MISREPRESENTATIONS. See Life Insurance, 2, 3. MISTAKE. See Account Stated, 3; Contracts, 15; Sales, 6, 9, 10; Vendor and Vendee, 3. MONOPOLIES. See Contracts, 21, 24. MORTGAGES. 1. FORECLOSURE SALE - APPEAL - STAY OF PROCEEDINGS.-A decree declaring the amount due on a mortgage and providing for its payment within seventy days and, if not paid, that the property be sold in satisfaction of the indebtedness and a judgment entered for the deficiency, if any, is a judgment directing a sale of real property within the meaning of section 945 of the Code of Civil Procedure, and a stay bond on appeal is necessary to stay the sale. (Sing v. Barker, 587.) 2. APPEAL BY MORTGAGEES--PORTION OF JUDGMENT SUPERSEDEAS.— A writ of supersedeas will not issue to stay a foreclosure sale because of the mere fact that the mortgagees also took an appeal from the portion of the judgment fixing the amount due on the mortgage, since the determination of the appeal could not reduce the judgment below the amount allowed. (Id.) 3. ASSIGNMENT OF INTEREST IN ESTATE-SECURITY FOR NOTE.-An assignment of an interest in the estate of a deceased person as security for the payment of a promissory note is a mortgage under section 2924 of the Civil Code and passes to the assignee of the note without formal assignment under the provisions of section 2936 of such code. (Pitman v. Walker, 667.) 4. NOTE AND CONTEMPORANEOUS MORTGAGE-PURCHASER WITH NOTICE --DESTRUCTION OF NEGOTIABILITY.-Mortgage security operates to destroy the negotiability of a promissory note in the hands of a purchaser with notice thereof, if the mortgage is executed con MORTGAGES (Continued). temporaneously with the note, as part of the same transaction. (Id.) · 5. NOTE AND SUBSEQUENT MORTGAGE - - PURCHASER WITH NOTICE -NEGOTIABILITY.-Where a promissory note was negotiable as originally executed, but subsequently mortgage security was demanded and given, such note is negotiable in the hands of a subsequent purchaser with notice of the security in so far as the maker is prohibited from setting up the defenses of fraud or failure of consideration, but the holder is bound by all the restrictions which section 726 of the Code of Civil Procedure places upon actions to collect a debt secured by mortgage. See Vendor and Vendee, 1. MOTIONS. (Id.) 1. RENEWAL OF MOTION AFTER DENIAL.-Section 182 of the Code of Civil Procedure does not apply to the renewal of a motion denied for informality of the moving papers or proceedings, or in cases where leave to renew is given; nor does it go to the jurisdiction of the court to entertain a second motion. The penalty provided by section 183 of the Code of Civil Procedure is punishment for contempt and authority to the court to set aside an order obtained by a violation of the rule. (Andersen v. Superior Court, 95.) 2. UNAUTHORIZED MOTION-REMEDY.-The proper practice in case of an unauthorized motion is to strike it from the files. (Id.) See Criminal Law, 34. MOTOR VEHICLE ACT. 1. SPEED LIMITS TURNING OF CORNERS-RULES INAPPLICABLE TO FIRE APPARATUS.-The general restrictions as to speed and turning of corners applicable to vehicular traffic contained in the Motor Vehicle Act (Stats. 1917, p. 382), do not apply to a fire apparatus responding to an alarm, in view of the fundamental rule of construction that a statute is not applicable to the government or its agencies unless expressly included by name. (Balthasar v. Pacific Elec. Ry. Co., 302.) 2. RIGHT OF WAY OF FIRE APPARATUS CONSTRUCTION OF ACT.The provision of section 20 (m) of the Motor Vehicle Act that fire apparatus while being operated as such shall have right of way with due regard to the safety of the public has reference to the person required to yield such right of way, and notice to him is essential and a reasonable opportunity to stop or otherwise yield the right of way, necessary in order to charge him with the obligation to give precedence to the fire apparatus. (Id.) 187 Cal.-54 MUNICIPAL CORPORATIONS. 1. CONSOLIDATION CONDITIONS OF.-Under the law of this state relative to consolidation of municipal corporations there may be a consolidation without any assumption of existing bonded indebtedness, a consolidation with the assumption of all the existing bonded indebtedness, and a consolidation with the assumption of only a part of the existing bonded indebtedness. (People v. City of Los Angeles, 56.) 2. ELECTION OFFICIAL BALLOT- STATEMENT OF PROPOSITION. The importance of stating upon the official ballot, at least in terms sufficiently specific to bring home to the voter knowledge of the general nature of the proposition upon which he is to vote, has been uniformly recognized by all our laws relative to elections under the so-called Australian ballot system. (Id.) 3. ACT FOR CONSOLIDATING MUNICIPALITIES - CONSTRUCTION OF.-It was the design of the act "to provide for the consolidation of municipal corporations," approved June 11, 1913 (Stats. 1913, p. 577), as amended April 29, 1915 (Stats. 1915, p. 311), that a proposition to consolidate municipal corporations should be stated upon the official ballot in terms sufficiently specific to tell the voter in a general way what the whole proposition was; and where there is a failure to indicate on the ballot that there is to be an assumption by one of the municipalities of a part of the bonded indebtedness of the other, the departure from the requisite form of ballot under the Consolidation Act is so substantial in nature that it cannot be held not to have affected the result, and there was no consolidation of the municipalities by the election. (Id.) 4. CONVEYANCE OF LAND FOR PARK CONDITIONS SUBSEQUENT CONSTITUTIONAL LAW.-The acceptance by a city of a deed to a tract of land upon the condition that the land should revert to the grantors unless the city should expend not less than five thousand dollars annually in improving it as a park, the total cost of the improvement aggregating fifty thousand dollars, created a liability to the grantors within the meaning of section 18 of article XI of the constitution, which precludes any city from incurring any in debtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the qualified electors thereof. (Chester v. Carmichael, 287.) 5. Los ANGELES-BONDS ISSUED UNDER ACT OF 1901-SALE BELOW PAR.-Under section 2, subdivision 29, of the charter of the city of Los Angeles, providing that in the creation of a bonded indebtedness the general laws of the state shall be followed, and under section 6 of the act of 1901 (Stats. 1901, p. 29), providing that bonds voted and issued thereunder shall be sold for not less than their par value, the city is without power to sell such bonds MUNICIPAL CORPORATIONS (Continued). for less than par so as to enable them to bear six per cent instead of four and one-half per cent interest as provided in the ordinance calling the election. (Peery v. City of Los Angeles, 753.) 6. PROHIBITION OF SALE BELOW PAR-ORDINANCE CALLING ELECTION-STATEMENT UNNECESSARY.-The fact that the provision of the act of 1901 forbidding the sale of municipal bonds voted and issued under its procedure for less than their par value is not to be found in that portion of the statute prescribing what shall be contained in the proposition to be submitted to the voters for their approval does not affect the prohibition, since it is not essential, unless expressly made so, that all of the terms and conditions of the statute under which a bond election is to be held shall be set forth in the ordinances calling such election or detailed upon the ballot. (Id.) 7. SALE OF UNSOLD BONDS BELOW PAR ACT OF 1921-LACK OF AUTHORITY. An attempted sale by the city of Los Angeles of unsold bonds issued and voted under the act of 1901 for less than their par value in order to enable them to bear a greater rate of interest than provided in the ordinances calling the bond election is void, notwithstanding the act of 1921 (Stats. 1921, p. 844) providing for the sale of unsold bonds by municipalities at a price which will net the purchaser not more than the equivalent of six per cent per annum. (Id.) 8. SALE OF BONDS UNDER ACT OF 1921-FRAUD UPON ELECTORS -CONTRACTUAL RELATIONSHIP.-Where the city of Los Angeles voted a bonded indebtedness under the act of 1901, a status analogous to a contractual relation was created between the electors and the officials of the municipality, and the relation could not be changed by the sale of the bonds in the manner provided by the act of 1921, without working, in effect, a fraud upon the electors. (Id.) See Interest, 1; Occupational Tax, 1; Public Records, 1. NEGLIGENCE. 1. PERSONAL INJURIES-PLEADING INCONSISTENT DEFENSES.—A defendant has a right to make inconsistent defenses, and he does so in an action for damages for personal injuries where in the first count of his answer he specifically denies the charge of negligence set forth in the complaint and in his second count alleges contributory negligence of the plaintiff. (Starr v. Los Angeles Ry. Corp., 270.) - 2. INSTRUCTIONS POSITION OF CONDUCTOR ON CAR QUESTION OF FACT. In an action for damages for personal injuries sustained in falling from a "pay-as-you-enter" street-car, where the complaint counts upon the negligence of the company in suddenly NEGLIGENCE (Continued). starting the car with a jerk while the plaintiff was alighting, and there is no general allegation of negligence, an instruction that if the conductor knew that the plaintiff was about to alight and that the alighting place was dangerous because the car was traveling at a fast rate of speed and would necessarily give a lurch upon reaching a certain street and he was not in his place on the car, the acts of the conductor, consisting in his failure to be at his post, would constitute negligence, and in such a case the verdict should be for plaintiff, is erroneous, as the duty of the conductor with reference to his place on the car is a question of fact, and there was no issue on this subject. (Id.) 3. CONTRIBUTORY NEGLIGENCE.-Such instruction is prejudicially erroneous, in that it fails to take into account the alleged contributory negligence of the plaintiff, this defense having been made. (Id.) 4. INSTRUCTION-PROXIMATE CAUSE OF INJURY.-Such instruction is erroneous in overlooking the principle that the negligence must be a proximate cause of the injury in order to justify recovery. (Id.) 5. EMPLOYEES OF CARRIERS-PLACE OF PERFORMANCE OF DUTIES.The law fixes no particular place for the performance of the duties of the employees of a carrier; it merely fixes the obligation of the carrier to the passenger. (Id.) 6. LURCHING OF CAR.-Such instruction is erroneous in permitting the jury to find for the plaintiff, not only upon conduct of the conductor which could not be a proximate cause of the injury, but also if she was injured by a jerk or lurch of the car, necessarily incident to its operation over the intersection of a street at fast speed, and if the conductor was not in his place. (Id.) 7. PROXIMATE CAUSE OF INJURY MATTERS OF LAW.-When the court specifically instructs the jury that in a certain state of facts they must bring in a verdict for the plaintiff, the jury has a right to assume that the court in that instance is determining as a matter of law that such negligence was the proximate cause of the injury and that there was no contributory negligence. (Id.) 8. INSTRUCTION TO FIND FOR PLAINTIFF ESSENTIALS OF.-The rule is that where an instruction directs a verdict for plaintiff if the jury finds certain facts to be true, it must embrace all the things necessary to show the legal liability of the defendant and to warrant the direction or conclusion that the plaintiff is entitled to the verdict. (Id.) 9. JUSTIFIABLE RATE OF SPEED-AMBIGUOUS INSTRUCTION.-In such a case an instruction that the defendant may be justified under certain circumstances in running its cars at "a very fast" or "the fastest rate" of speed, while under other circumstances to run its cars at "a high" rate of speed might be negligence, and that if the jury found that the defendant operated its car at |