Cited in Williams v. Harter, 121 Cal. 52, noted under Stanley v. Green, 12 Cal. 148. Western Union Oil Co. v. Newlove, 145 Cal. 775, evidence of declarations of lessor under whom plaintiff claims as owner, made in own favor, is inadmissible in action involving boundary.

Abatement of Nuisance by obstruction of a public street; action brought by the people of the state is a proper procedure, pp. 497-512.

Cited in People v. Beaudry, 91 Cal. 220, holding that the attorney general may bring an action in the name of the people to enjoin or abate the obstruction of a public street as a public nuisance.

60 Cal. 513-516. WHITING v. HAGGARD.

Statutes-The provisions of the act of 1878, relating to fees of county officers in Plumas county (Stats. 1877-78, p. 547), never went into effect, p. 513.

Cited in Whiting v. Plumas County, 64 Cal. 66, and People v. Whiting, 64 Cal. 68, holding that such portions of the act as were not in force at the adoption of the constitution of 1879 never had and never would take effect.

60 Cal. 517-526. YOUNGER v. PAGLES.

Presumption in Finding.-When an appeal has been taken, it is a conclusive presumption that it is still pending in the absence of a direct finding to the contrary, p. 519. Evidence tending to prove the dismissal of the appeal, but which does not conclusively prove it, will not help to overcome presumption, as the finding of the probative fact cannot be substituted for a finding of the ultimate fact, p. 520.

Cited in Bull v. Bray, 89 Cal. 293, holding that if the facts found do not absolutely exclude all possibility of the absence of fraudulent intent, then the want of a finding of such intent cannot be dispensed with; the ultimate fact must follow necessarily—that is, as a matter of law-from the other facts.

Juridical Possession.-Where this has been delivered under a Mexican grant, the grantee may recover to the exterior lines of such possession and grant; but when the limits of the grant have been ascertained in the method provided by law, the lines of juridical possession must yield to the established lines (from dissenting opinion of Myrick, J.), p. 525.

Cited in Valentine v. Sloss, 103 Cal. 220, holding that the patent was conclusive evidence of the survey, and that evidence of the delivery of juridical possession was properly excluded.

Statute of Limitations does not begin to run against lands included in Mexican grants until after they have been confirmed and a patent Issued, pp. 520-522.

Cited in note to 85 Am. Dec. 172.

60 Cal. 526-532. MOORE v. MOORE.

Family Allowance is for benefit of children as well as of widow, p. 530.

Cited in Gorkow's Estate, 20 Wash. 572, noted under Estate of Moore, 57 Cal. 437.

60 Cal. 532-551. AURRECOECHEA v. SINCLAIR.

Quieting Title to Patented Lands. All the facts essential to confer on plaintiff a better right than the patentee must be specifically alleged in the complaint and proven and found in order to lead the court of equity to control the right of a patentee, pp. 548-551.

Cited in Plummer v. Brown, 70 Cal. 546, holding what things must be alleged and proven in order to entitle the alleged owner to equitable relief; Buckley v. Howe, 86 Cal. 601, holding that the state of facts which gave the claimant the prior right would be shown; Pierce v. Sparks, 4 Dak. Ter. 3, holding it must appear affirmatively that claimant's equity is superior to that of the holder of the legal title; that the patent alone stood between him and the legal title, and that if that were out of the way, he would be entitled to the patent.

Pleading. Conclusions of law are insufficient, p. 549.

Cited in Callahan v. Broderick, 124 Cal. 83, holding complaint insufficient for want of statement of issuable facts.

Selection by State of Lieu Lands cannot be made until the lands are surveyed and become part of the public domain of the United States. p. 546.

Approved in United States v. Curtner, 14 Saw. 546, 38 Fed. Rep. 9, holding to same effect.

60 Cal. 551-555. DYER v. PARROTT.

Street Assessment.-Appeal under section 12 of the Street Law of 1871-72 is the only remedy for correction of an error in an assessment which the board had power to correct, p. 555.

Cited in Blanchard v. Ladd, 135 Cal. 215-217, but held inapplicable to error in description of property, and also holding description sufficient; Jennings v. Le Breton, 80 Cal. 12, applying the ruling to an alleged failure of the contractor to complete the work, or misconduct of the superintendent of streets in accepting the work before completion; Girvin v. Simon, 116 Cal. 611, applying the same ruling to section 11 of the act of 1885, which corresponded with section 12 of the act of 1871-72, when it was alleged that a contract for street work had not been properly performed.

60 Cal. 555-567. NEILSON v. LEE.

Broker's Commission.-A broker's right to commission on sale is not

lost by the owner's refusal to ratify an agreement for sale made by the broker upon the terms fixed by the owner, p. 565.

Cited in Smith v. Schiele, 93 Cal. 149, holding that the commission is earned by production of a bona fide purchaser for the property on the vendor's terms; Buckingham v. Harris, 10 Colo. 460, to same effect.

Broker's Commission is not earned unless he strictly performs the services required of him according to the authority conferred upon him (dissenting opinion of McKee J.), p. 565.

Approved in Wilson v. Sturgis, 71 Cal. 229, in same language.

60 Cal. 569-576. VOLL v. HOLLIS.

In an action for forcible entry and detainer testimony as to title should not be admitted, p. 573.

Cited in Knowles v. Crocker Estate Co., 125 Cal. 265, on point that actual possession must be established; Holland v. Green, 62 Cal. 68, holding that evidence of a lease to one of the defendants was properly excluded; Lachman v. Barnett, 18 Nev. 277, the court saying: "If it be true that defendants were entitled to unobstructed passage over the land, they were not justified in attempting to obtain their rights by forcible means. Note to 77 Am. Dec. 552.

Under section 1172 of the Code of Civil Procedure, all entries on the actual possession of another are unlawful, and the question of good or bad faith on the part of the defendant no longer affects the right of recovery, in actions for unlawful entry, pp. 574, 575.

Cited in Kerr v. O'Keefe, 138 Cal. 421, holding forcible entry shown under facts stated; Carteri v. Roberts, 140 Cal. 166, but permitting evidence that entry was permissive; Gore v. Altice, 33 Wash. 337, following rule; Bank of California v. Taaffe, 76 Cal. 630, the court saying: "The question of good or bad faith does not arise under the code in this kind of action (forcible entry and detainer); Giddings v. Land and Water Co., 83 Cal. 101, to same effect. Note to 77 Am. Dec. 554.

Dismissal of Motion for New Trial.-When a motion for new trial is dismissed for want of prosecution, it is equivalent to a denial of the motion, and the order is subject to appeal, p. 572.

Cited in Lang v. Superior Court, 71 Cal. 492, to same effect as principal case when a motion for new trial was stricken off the calendar; Winchester v. Black, 134 Cal. 127, applying rule to order dismissing demurrer; Credit Com. Co. v. Superior Court, 140 Cal. 83, noted under Warden v. Mendocino Co., 32 Cal. 655; Galbraith v. Lowe, 142 Cal. 299, discussing review upon appeal of order dismissing motion; Wyman v. Jensen, 26 Mont. 240, ruling upon objection to introduction of evidence because complaint does not state facts sufficient to constitute cause of action may be reviewed on appeal from order denying new trial; United States v. Trabing, 3 Wyo. 146, the court saying: "In other

states it is held that the ruling on a motion for new trial, when that motion is based on errors of law, is reviewable, and is not a matter of discretion."

60 Cal. 576-578. CUNNINGHAM v. SUPERIOR COURT.

Petition for Certiorari to Review Judgment rendered in superior court for one hundred dollars must show that court has not jurisdiction, p. 577.

Approved in Fisher v. Union Co., 43 Or. 234, petition for review of action of county court in vacating road, alleging that the road described in notice of application for vacation posted was not same road described in petition for vacation, is sufficient to show want of jurisdiction in county court.

60 Cal. 578-579. JOHNSON v. SUPERIOR COURT.

Substitution of Administrator.-Order for may be made ex parte on suggestion of death, p. 579.

Cited in Strong v. Eldridge, 8 Wash. 600, to same effect.

60 Cal. 579-580. BROWN v. BROWN.

Divorce.-Appeal from decree awarding community property. Section 148 of the Civil Code gives the appellate court power to review the decision of the lower court as to the disposition of the community property, p. 580.

Cited in Gorman v. Gorman, 134 Cal. 379, noted under Eslinger v. Eslinger, 47 Cal. 62; Sharon v. Sharon, 67 Cal. 213, holding that this appeal is limited to the distribution of the community property; Strozynski v. Strozynski, 97 Cal. 192, holding that the intention of the section was to allow an appeal for any apparent degree of error in the order, though not amounting to an abuse of discretion; Reid v. Reid, 112 Cal. 278, holding that, under the section, the supreme court could deal separately with that part of a decree in a divorce case which disposed of the community property, without disturbing other parts of the decree.

Distribution of One-half of community property on a divorce granted for extreme cruelty modified on appeal to a distribution of threefourths, p. 580.

Distinguished in Bovo v. Bovo, 63 Cal. 78, where a decree of distri bution was not disturbed in view of the facts.

60 Cal. 581-594; 44 Am. Rep. 70. PEOPLE v. WHEELER.

Counsel cannot, as part of his argument, read from standard authorities, when not proved to be of recognized authority, not offered as evidence in the case. nor made part of the testimony of any of the wit

nesses examined; and quotations from medical books are not admissible as testimony when offered independently or when read by witnesses, p. 584-594.

Cited in People v. Mitchell, 62 Cal. 412, holding that counsel could not be permitted to argue from the existence of facts as to which no evidence had been offered or introduced; Gallagher v. Market St. Ry. Co., 67 Cal. 14, holding that medical books are not admissible in evidence to prove the nature of the injuries sustained and their probable effect, but qualifying the rule as to books referred to by an expert to sustain his opinions; People v. Goldenson, 76 Cal. 348, holding that a medical witness cannot be asked to name the circumstances of the cases he had read bearing on the subject of his testimony; Bailey v. Kreutzmann, 141 Cal. 521, holding such evidence improperly admitted; Eggart v. State, 40 Fla. 538, but permitting reading when in rebuttal; and to same effect, cf. Bixby v. Omaha etc. Co., 105 Iowa, 300, 67 Am. St. Rep. 304; Burt v. State, 38 Tex. Cr. App. 437, sustaining rejection of such reading: Brady v. Shirley, 14 S. Dak. 450, on issue as to identity of horse, work on veterinary science is not admissible to determine horse's age from examination of the teeth; State v. Coleman, 20 S. C. 451, holding that counsel might use a medical authority for the purpose of framing proper questions, but that he could not read what was said and then ask the witness whether or not he concurred in those views; and explaining the principal case; Boyle v. State, 57 Wis. 480, 46 Am. Rep. 45, to same effect as principal case. Note to 59 Am. Dec. 182, 186, on medical works as evidence and authority. Note to 51 Am. Rep. 681, 682.

60 Cal. 594-601. CHAQUETTE v. ORTET.

There is no provision in the statute for the settlement of the account of an administrator who dies before rendering an account; the right and duty to compel such accounting belongs to a court of equity, p. 600.

Cited in Slater v. McAvoy, 123 Cal. 439, noted under Bush v. Lindsey, 44 Cal. 125; In re Allgier, 65 Cal. 230, holding that a settlement of the account of a deceased guardian can only be had in a court of equity, the probate court being without jurisdiction; Estate of Curtiss, 65 Cal. 574, holding to same effect as to accounts of a deceased executrix; Weihe v. Stratham, 67 Cal. 85, holding that the accounts of an adminis trator could only be settled in the probate court; In re Smith, 108 Cal. 122, holding that on the death of an executor it was the duty of the surviving coexecutor to compel an accounting of the deceased's trust in equity; Moulton v. Smith, 16 R. I. 129, 27 Am. St. Rep. 730, holding that, in the United States, probate courts have only the jurisdiction given them by statute, and referring to the principal case and its ruling; Hubbard v. Urton, 67 Fed. Rep. 421, holding that where an administrator fraudulently concealed part of the deceased's estate and failed to administer upon it, and the probate court finally settled the