missal therefor where undertaking on file when motion made, but see Smith v. McDermott, 93 Cal. 425, 426, affirming dismissal where undertaking filed had nonresident sureties and no new bond filed or offered to be filed; Creditors v. Consumers' etc. Co., 98 Cal. 319, applying rule to failure of petitioning creditors to file proper bond under section 8, Insolvent Act; but see on same point Anderson v. Superior Court, 122 Cal. 218, holding bond essential unless waived.

Libel.-Evidence is admissible as to number and ages of members of plaintiff's family, p. 530.

To same effect in Cahill v. Murphy, 94 Cal. 31; 28 Am. St. Rep. 90, but rejecting evidence of their dependence on plaintiff.

69 Cal. 531-532. SAN LUIS OBISPO v. KING.

Statute of Limitations does not begin to run against claim of county for fees improperly held by officer, until demand, p. 532.

Overruled as dictum in San Francisco v. Heynemann, 71 Cal. 155, holding no demand necessary to start statute.

69 Cal. 533-536. DURKEE v. CENTRAL PACIFIC ETC. CO. 58 Am. Rep. 562.

Negligence. Declarations of Servant are inadmissible as to cause of accident, when not part of res gestae, p. 535.

Cited in Boone v. Oakland etc. Co., 139 Cal. 492, and Nebonne v. Concord etc. Co., 67 N. H. 532, holding such declarations of train conductor inadmissible; Luman v. Golden etc. Co., 140 Cal. 709, 710, ruling similarly as to statements of brakeman and mining superintendent; Louisville etc. Co. v. Buck, 116 Ind. 577; 9 Am. St. Rep. 892, admitting statements made within two minutes of accident; and Ohio etc. Co. v. Stein, 133 Ind. 250, as to similar interval, but holding declarations inadmissible where composed of fact and opinion; Short v. Elevator Co., 1 N. Dak. 164, rejecting such declarations when after transaction. Note citations: Nichols v. Southern Pacific Co., 37 Am. St. Rep. 671; and Barker v. Railroad Co., 47 Am. St. Rep. 653, on general subject.

69 Cal. 538-539. PEARSON v. CREED.

Taxation.-Assessment is invalid when in name of person deceased,

p. 539.

Cited in Escondido etc. Dist. v. Escondido Sem., 130 Cal. 132, as citing Lake Co. v. Sulphur etc. Co., 66 Cal. 19; Succession of Lacroix v. Lumber Co., 49 La. Ann. 1448, construing like local statutes.

69 Cal. 540-541. PEOPLE v. CAMILO.

Dismissal of Criminal Prosecution under section 1382, Penal Code,

is not justified where delay caused by judge's illness and trial of other cases, p. 541.

To same effect in People v. Henry, 77 Cal. 448, where due to othe trials; State v. Wear, 145 Mo. 196, 218, construing local statute.

69 Cal. 541-549. IN RE GANNON.

Validity of Grand Jury cannot be collaterally questioned, p. 543. Cited in People v. Reigel, 120 Mich. 87, as to indictment found by de facto grand jury.

Grand Jury Exists until discharged by court where not impaneled for particular time prescribed by law, p. 546.

To same effect in People v. Leonard, 106 Cal. 319, sustaining its continuance until successor in next year selected and returned; State v. Noyes, 87 Wis. 346; 41 Am. St. Rep. 49, on point that indictment by hold-over jury is valid as against habeas corpus proceedings.

"Sessions" of Court means time during which it is holding court and engaged in business, p. 545.

To same effect in Falltrick v. Sullivan, 119 Cal. 616, discussing power of adjournment under section 1120, Code of Civil Procedure; Whitbeck v. Railway Cos., 21 Mont. 105, 106, construing local statutes as to terms of court; United States v. Dietrich, 126 Fed. 660, under Revised Statutes, section 1038, cricuit court has jurisdiction to proceed with any indictment remitted thereunder at the current term.

69 Cal. 550-552. COLLINS v. DRISCOLL.

Maturity of Note is fixed by agreement of parties, p. 551.

Cited in Raspadori v. Cresta, 130 Cal. 12, holding date of delivery immaterial where such agreement was made.

Statute of Limitations begins to run when cause of action accrues, p. 552.

To same effect in Jones v. Nicholl, 82 Cal. 34, as to action on demand note bearing interest; Leonard v. Flynn, 89 Cal. 542; 23 Am. St. Rep. 504, as to action of ejectment based on sheriff's deed.

69 Cal. 552-556. PEOPLE v. LEE GAM.

Instructions as to Alibi sustained, as not being instruction on fact,

p. 554.

To same effect in People v. Levine, 85 Cal. 48; Ware v. State, 59 Ark. 394; cited in State v. McGarry, 111 Iowa, 711, noted under People v. Fong Ah Sing, 64 Cal. 253; note to Sharp v. State, 14 Am. St. Rep. 42. Cited under People v. Wong Ah Foo, 69 Cal. 180.

Murder.-Instructions as to manslaughter are properly refused where evidence does not show such crime, p. 555.

To same effect in People v. Chavez, 103 Cal. 408, as to instructions in assault to rape in prosecution for rape; People v. Chavez, 122 Cal. 140, as to instructions similar to those in main case.

69 Cal. 556-559. WILLIAMS v. MECARTNEY.

Justice's Court Jurisdiction.-Legality of assessment cannot be raised except by verified answer, p. 558.

Overruled in King v. Kutner etc. Co., 135 Cal. 68, noted under Rowley v. Howard, 23 Cal. 401.

Supreme Court.-Appellate Jurisdiction does not embrace cases originating in justice's court for street assessment whose legality is not questioned, p. 559.

To same effect in Henigan v. Ervin, 110 Cal. 40, as to such action for less than three hundred dollars, but increased beyond that sum by costs; Willard City v. Woodland, 7 Utah, 198, sustaining justice's jurisdiction in tax suit where title to realty not put in issue; City v. Holman, 18 Utah, 341, discussing jurisdiction of justice's court under local statutes.

69 Cal. 559-562. MULLALY v. IRISH ETC. SOCIETY.

Cost Bill.-Notice of Decision is unnecessary to fix time for filing cost bill where party has knowledge of decision, p. 561.

To same effect in Kelleher v. Creciat, 89 Cal. 41, holding copy of findings and judgment sufficient as notice in new trial proceedings, where adversary acted thereon; and on same point, Waddingham v. Tubbs, 95 Cal. 251, ruling similarly as to cross-notice of intention; and Forni v. Yoell, 99 Cal. 178, holding notice waived by motion to dismiss because judgment not entered within six months after decision; and California etc. Co. v. Baroteau, 116 Cal. 139, ruling similarly because of motion to set aside findings; Dow v. Ross, 90 Cal. 563, further holding no valid excuse shown for failure; Wall v. Heald, 95 Cal. 368, applying rule to notice of overruling of demurrer. Distinguished in Spoor v. Board, 113 Fed. 27, and held inapplicable under rule 17 of United States circuit court for ninth circuit; cited in Mallory v. See, 129 Cal. 359, as to waiver of notice of decision.

69 Cal. 569-571. PRYCE v. JORDAN.

Note. Complaint alleging indorsement need not state continuance of ownership, p. 571.

Cited in Curtin v. Kowalsky, 145 Cal. 433, applying rule in action by assignee on judgment; Kennedy v. S. S. etc. Co., 123 Cal. 586, noted under Wedderspoon v. Rogers, 32 Cal. 569.

69 Cal. 572-586. REAY v. BUTLER. S. C. 95 Cal. 206, 212; 118 Cal.
113.

Appeal will not Lie from order refusing to vacate judgment itself
appealable, p. 585.

To same effect in Goyhinech v. Goyhinech, 80 Cal. 409, as to order
denying motion to vacate judgment for want of findings; Harper v.
Hildreth, 99 Cal. 269, as to order refusing to vacate nonappealable
orders; Mantel v. Mantel, 135 Cal. 315, as to order refusing to vacate
judgment for lack of findings.

Bill of Execptions. Specifications of particulars need not be made
for errors in law, p. 577.

To same effect in Snell v. Payne, 115 Cal. 220, as to order granting
nonsuit.

Landlord and Tenant.-Judgment against tenant will not bind land-
lord if collusively obtained, p. 583. See note to Oetgen v. Ross, 95 Am.
Dec. 473, on general subject.

69 Cal. 586-593. ARCHBISHOP v. SHIPMAN. S. C. 79 Cal. 288.
Judgment is Binding on Defendant only in character in which he is
sued, p. 588.

To same effect in Wood v. Curran, 99 Cal 141, as to one sued as
heir, although also administratrix. Distinguished in Page v. W. W.
Chase Co., 145 Cal. 582, in absence of filing of lis pendens purchaser
who took title from defendant in suit to foreclose street assessment
pending suit, without actual notice of its pendency and who was not
party to suit is not bound by judgment therein.

Injunction. Cloud on Title is not cast by judgment and execution
sale and deed void as to owner of land, p. 591.

To same effect in Russ etc. Co. v. Crichton, 117 Cal. 703, as to tax
deed void on face; McCormick v. Riddle, 10 Mont. 471, as to lien fore-
closure decree to which owner of land was not party.

69 Cal. 593-600. KALIS v. SHATTUCK. 58 Am. Rep. 568.

Landlord is not Liable to third persons for injury from building in
possession and control of tenant except in instances stated, p. 597.

To same effect in Riley v. Simpson, 83 Cal. 218, but affirming lia-
bility for fall of awning under facts; Gould v. Stafford, 91 Cal. 153,
ruling aliter as to wrongful diversion of water by tenant by means of
flume; Rider v. Clark, 132 Cal. 387, holding instructions erroneous in
action against landlord; Texas etc. Agency v. Fleming, 92 Tex. 466,
holding owner not liable under facts stated. Note citations: Polack
v. Pioche, 95 Am Dec. 124; Dalay v. Savage, 1 Am. St. Rep. 432; and
Donaldson v. Wilson, 1 Am. St. Rep. 490, on general subject.

Notes Cal. Rep.-217.

69 Cal. 601-606. PEOPLE v. RODRIGO.

Information will not be Quashed for irregularities in preliminary ex-
amination, unless defendant deprived of some substantial right, p. 602.
To same effect in People v. Sehorn, 116 Cal. 505, as to irregularities
in preliminary examination.

Assault with Deadly Weapon.-Instruction approved, p. 603.

Cited in People v. Valliere, 123 Cal. 579, noted under People v. Fuqua,
58 Cal. 245; State v. Bowles, 146 Mo. 13, 69 Am. St. Rep. 602, holding
a knife a deadly weapon under facts stated.

Criminal Law.-Burden of Proof is on prosecution throughout to
prove act criminal beyond reasonable doubt, p. 604.

To same effect in People v. Knapp, 71 Cal. 9, but holding burden on
defendant in murder case to overcome prima facie case made by pros-
ecution; People v. Gordon, 88 Cal. 423, holding burden not to shift
under section 1105, Penal Code, except in cases of homicide; Gravely
v. State, 38 Neb. 874, applying note to homicide cases.

Prior Conviction of Felony.-Witness may be asked whether not so
convicted, p. 604.

To same effect in Jackson v. State, 33 Tex. Cr. Rep. 287, 47 Am. St.
Rep. 32, as to impeachment of defendant.

General Citation.-White v. State, 33 Tex. Cr. 178.

69 Cal. 606-608. HASTINGS v. KELLER.

Change of Venue because of defendant's residence will be denied
when testimony thereon is conflicting, p. 607.

To same effect in Daniels v. Church, 96 Cal. 14, sustaining denial of
motion.

69 Cal. 608-611. IN RE LAWRENCE.

Liquor License.-County may impose, notwithstanding payment of
similar tax imposed by city of such county, p. 610.

To same effect in Monterey v. Abbott, 77 Cal. 542, but holding per-
son not liable for license tax unless license obtained; Ex parte Roach,
104 Cal. 278, but holding county ordinance not operative in city when
in conflict with ordinance of latter; and see Ex parte Mansfield, 106
Cal. 403, affirming main case in considering such license for purposes
of revenue; County v. Eikenberry, 131 Cal. 465, sustaining such county
ordinance.

Liquor Licenses.-Municipal Ordinance imposing is a "law of the
state" under section 435, Penal Code, and violation thereof is mis-
demeanor, p. 611.

To same effect in Ex parte Christensen, 85 Cal. 211, but holding said