PLEADING (Continued).

--

10. RECOVERY OF MONEY-BONA FIDE STOCKHOLDERS ESSENTIAL ALLEGATIONS.-Allegations that the defendant used the corporation as a "tool and catspaw" of himself and a fellow-conspirator, and as a "means and instrumentality of defrauding and swindling the public, by which process he wrongfully and fraudulently" received from the corporation a stated sum of money "paid into said company by the public as the proceeds of plaintiff's stock," are entirely insufficient to base a right of action in favor of the cor poration for the recovery of the money, where there is no allegation as to the existence of bona fide stockholders of the corporation not parties to the wrongful acts. (Id.)

11. ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND DISCRETION.-The refusal of leave to amend after sustaining a demurrer to a fifth amended complaint is not an abuse of discretion. (Id.)

12. COUNTERCLAIM

RES JUDICATA.-In an action to recover the purchase price of certain personal property sold and delivered, the contention that one of the causes of action set up as a counterclaim had been adjudicated in a former action is not tenable, where such counterclaim, although pleaded in such former action, did not exist at the time of the commencement thereof, but matured some months later, and, therefore, was not adjudicated in that (Rauer's Law etc. Co. v. S. Proctor Co., 524.)

case.

13. WAIVER OR ESTOPPEL AS TO DEFENSE.-If the plaintiff relies on waiver or estoppel as to any defense which would otherwise be available to the defendant under the facts stated in the complaint, the facts constituting such waiver or estoppel must be pleaded in the first instance. (Greely v. Noble, 628.)

14. OFFICE OF SUPPLEMENTAL COMPLAINT.-A complaint (or one as amended) and a supplemental complaint are to be considered as separate pleadings, the office of the supplemental complaint being merely to bring to the notice of the court, and the opposite party, matters which occurred after the commencement of the action, and which do, or may, affect the rights asserted and the relief asked in the action, as originally instituted. (Conlin v. Southern Pacific R. R. Co., 733.)

In

See Agency, 2; Appeal, 21; Contracts, 17, 25; Criminal Law, 22; Divorce, 29, 33; Equity; Fraudulent Conveyances, 1; surance, 1; Judgments, 5, 6; Landlord and Tenant, 1; Life Insurance, 4; Mechanics' Liens, 20; Mortgages, 3; Negligence, 1, 11, 30; Promissory Notes, 4; Public Officers, 4-7; Quieting Title, 6, 9, 10; Street Law, 1, 5, 12, 17; Waters and Watercourses, 4.

POLICE POWER.

1. HEALTH REGULATION-DISCRETION OF LEGISLATURE.-The adoption of measures for the protection of the public health is a valid exercise of the police power of the state as to which the legis lature is necessarily vested with large discretion not only in determining what are contagious and infectious diseases, but also in adopting means for preventing the spread thereof. (In re Johnson, 242.)

2. AFFLICTION WITH CONTAGIOUS DISEASE

ISOLATION. The isola

tion of one afflicted with a contagious or infectious disease is a reasonable and proper measure to prevent the increase and spread thereof. (Id.)

3. ABUSE OF AUTHORITY DELEGATED QUARANTINE.-The fact that the authority delegated to those charged with the duty of enforcing the law may, in a given case, be abused, is no legal reason for deny. ing the power to quarantine summarily in a case where grounds therefor concededly exist. (Id.)

4. QUARANTINE REGULATIONS-Judicial DetERMINATION OF INFECTION UNNECESSARY. It is not necessary that it be first judicially established by some proceeding in court that a person is afflicted with a contagious disease before that person can be subjected to quarantine regulations. (Id.)

POSSESSION. See Contracts, 30; Landlord and Tenant, 12.

PRESUMPTIONS. See Appeal, 37; Criminal Law, 21; Deeds. 13; Divorce, 4, 34; Evidence, 2, 14, 15; Guaranty, 3; Leases, 3, 12; Street Law, 15.

PRIVILEGED COMMUNICATIONS. See Fraudulent Conveyances, 4.

PROFITS.

1. DETERMINATION OF MEANING.-The terms "profits" and "net profits" depend for their meaning upon the nature of the business and properties with respect to which they are employed. v. Giannini, 348.)

(Cuneo

2. NET PROFITS - TRADING CORPORATION.-As applied to a trading corporation which makes its main profits in buying, selling, exchanging, and generally handling both real estate and personal properties and securities, investing, enhancing, and turning over its capital through the process of dealing in the main in property in kind, the term "net profits" means not merely the difference between the receipts and disbursements, but also the difference between the original and the increased value of its assets. (Id.)

3. INTERPRETATION BY PARTIES.-The meaning to be given the term "net profits" as employed by the parties to a given contract,

PROFITS (Continued).

if the same is doubtful, must be determined in some measure at least by the interpretation which the parties themselves placed upon it during the life of the agreement in which it was used. (Id.)

PROHIBITION.

ACTS WITHIN JURISDICTION OF SUPERIOR COURT.-A superior court being a court of general jurisdiction, prohibition will not lie to prevent such court from proceeding to hear and determine a certain action and continuing in force a temporary injunction restraining the plaintiff and the sheriff from selling certain property under execution, even though the complaint in the action fails to state facts sufficient to warrant the action of the court. (Kelsey v. Superior Court, 229.)

PROMISSORY NOTES.

1. WRITTEN INSTRUMENT-PROMISSORY NOTE OR GUARANTY-MONEY PAYABLE AS DIVIDENDS ON STOCK-MORTGAGE AS SECURITY-ASSIGNABILITY.-A writing, secured by a mortgage, in the form of a promise to pay one thousand five hundred dollars on or before two years fiom its date, with interest after maturity, and reciting that the payee has received from the maker certain shares of corporation stock, on which the maker guarantees dividends for two years of $750, provided that if in two years the dividends received amount to one thousand five hundred dollars, the note is to be canceled, and if they do not amount to $750 each year, the note shall be credited with the dividends, and the maker at maturity shall pay the balance, is assignable under sections 954 and 1458 of the Civil Code, regardless of whether it be considered a promissory note or a guaranty for the payment of money. (Fratessa v. Roffy, 179.)

2. CONTRACT OF INDEMNITY.-There is nothing in the language of the note to support the contention of the respondents that the written instrument constitutes a contract of indemnity against loss incident to the purchase of the stock and that no cause of action could arise there from without such loss by the holder of both the shares and the note, and that the note would have no validity where it had been assigned without an assignment of the shares also. (Id.)

3. NATURE OF INSTRUMENT.-The instrument in question was neither a guaranty nor a warranty, but a direct promise to pay money with a proviso for the payment of the amount, in whole or in part, out of the dividends received by the payee from the shares. (Id.)

4. CONSIDERATION-ACTION AGAINST MAKER-VIOLATION OF COVENANT RUNNING TO THIRD PARTY.-In an action on a promissory note executed by the defendant to the plaintiff as part consideration for plaintiffs' interest in a certain corporation as repre

PROMISSORY NOTES (Continued).

sented by certain shares of stock held by him therein, which was purchased by defendant under an agreement whereby plaintiff bound himself not to engage in any business in competition with such corporation for a period of five years, plaintiff's violation of such clause was not a matter which could be made the subject of a cross-complaint by the defendant. (Cavasso v. Downey, 521.)

PROTEST. See Taxation, 8, 9.

PUBLIC OFFICERS.

1. LIABILITY OF PUBLIC OFFICERS-RULE.-Under the law of this state, before a public official becomes liable for a breach of duty, the duty must be plain and mandatory, the means and ability to perform it must exist, and it must be such as not to involve the exercise of any discretion on his part, either as to its performance or nonperformance or as to the manner of its performance. (South v. County of San Benito, 13.)

2. POWERS

OF SUPERVISORS-NONLIABILITY.-Other than the power given by section 2713 of the Political Code to the boards of supervisors of two counties to construct a bridge across the line between the counties and to apportion the cost as previously agreed, the supervisors of one county had no authority to repair the road in the other county where the accident occurred, or to place warning signals thereon, and they cannot, therefore, be charged with liability under the provisions of section 1 of the act of April 26, 1911 (Stats. 1911, p. 1115). (Id.)

3. PROCEEDING FOR REMOVAL-ACCUSATION UNDER SECTION 772, PENAL CODE.-An accusation presented under section 772 of the Penal Code is an accusation of a public offense, to wit, neglect of official duties, or misfeasance in office, the proceeding being criminal, and, in its nature, a prosecution for crime, the penalty where for is removal from office, and a fine of five hundred dollars that goes to the informer. (Dorris v. McKamy, 267.)

4. INSUFFICIENT ACCUSATION-WANT OF JURISDICTION.-If an accusation filed against a public officer under section 772 of the Penal Code wholly fails to state a case sufficient to constitute an offense under the criminal law of the state, the court is without jurisdiction, and the sentence or judgment is void, and subject to collateral attack. (Id.)

5. OFFENSE NOT CHARGED IN ACCUSATION.-An accusation by a private citizen against a city marshal, filed pursuant to section 772 of the Penal Code, for neglect in the performance of official duty, fails to state facts constituting an offense known to the criminal law of this state, where it is alleged that he failed to cause the arrest or prosecution of women whom he knew were occupying and living

PUBLIC OFFICERS (Continued).

in houses of prostitution openly and notoriously, and dressing and conducting themselves in a vile and indecent manner, no warrant for their arrest having been delivered to him, and the crime not having been committed in his presence.

(Id.)

6. REMOVAL OF PEACE OFFICER FAILURE TO ARREST FOR MISDEMEANOR ESSENTIAL FACTS.-Where it is sought to remove a peace officer from his office upon the ground that he "has refused or neglected to perform the official duties pertaining to his office," in that he has refused or neglected to arrest, for a crime amounting to a misdemeanor only, some person whom, it is claimed, it was his duty to arrest-no warrant for such arrest having been issued-two things are essential: (1) That the person whom it is claimed should have been arrested committed or attempted to commit a misdemeanor; and (2) that the misdemeanor was committed or attempted to be committed in the officer's presence. (Id.)

7. CHARGE THAT OFFICER "PERMITS" COMMISSION OF MISDEMEANORSAFFIRMATIVE ACTS NOT IMPLIED.-An allegation in an accusation by a private citizen whereby it is sought to remove a city marshal from office, pursuant to the provision of section 772 of the Penal Code, that such officer "permits" certain persons to commit certain alleged misdemeanors, amounts to no more than that having received no warrant issued upon a complaint sworn to by some person moved thereto by a proper sense of civic duty, and not having seen "committed in his presence" any acts sufficient to constitute any of the offenses denounced by the Penal Code, he made no arrests. (Id.)

See Contracts, 1; Deeds, 11.

QUIETING TITLE.

1. DISCLAIMER BY ONE DEFENDANT NONSUIT AS TO ALL DEFENDANTS. In an action to quiet title to certain easements, the granting of a nonsuit in favor of all defendants was clearly erroneous as to one of the defendants who had expressly disclaimed any interest in the rights sought to be quieted. (Parker v. Swett, 68.)

2. NONSUIT AS TO ALL EASEMENTS ADMISSION THAT PLAINTIFF ENTITLED TO SOME.-A judgment of nonsuit as to all easements claimed by plaintiff should be reversed when defendant's concede that plaintiff is entitled to three of the easements claimed.

(Id.) 3. STATUTE OF LIMITATIONS-RIGHT OF WAY FOR PIPE-LINE.-In order for the statute of limitations to run against a cause of action to quict title in plaintiff to a right of way for a pipe-line, there must be positive and definite evidence of an adverse claim and an adverse holding. (Id.)

40 Cal. App.--56