time he is a stockholder. There is no merit in the claim that it was thus repealed by the constitution because repugnant thereto. -Gardiner v. Royer, 167 Cal. 238, 139 Pac. 75. 3. The barring of an action at the expiration of three years from the time the liability was created is a marked exception to the general rule which measures the period of limitation from the accrual of the cause of action.-Royal Trust Co. v. MacBean, 168 Cal. 642, 144 Pac. 139.

4. The words "to enforce a liability created by law" mean liabilities in the nature of penalties or forfeitures, only.-Whitten v. Dabney, 171 Cal. 621, 154 Pac. 312.

5. The statute of limitations begins to run against actions to enforce the "liability created by law" of stockholders of corporations from the time of the creation of the liability, not from the discovery of the facts creating such liability. Johnson v. Kinkel, 29 Cal. App. 78, 154 Pac. 487.

6. The liability of stockholders of a corporation for damages for a breach by the corporation of the terms of a lease of land for the purpose of exploring for and developing oil thereon is not created at the time of the execution of the lease, but at the time of the breach.-Johnson v. Kinkel, 29 Cal. App. 78, 154 Pac. 487.

1.

Construction of subdivision 1.-While subdivision 1 of section 370 of the Code of Civil Procedure permits a married woman to sue alone in an action concerning her separate property, it does not provide that she may be sued alone.-Horsburgh v. Murasky, 169 Cal. 500, 147 Pac. 147.

2. -Of amendment of 1913.-The amendment of 1913 whereby the wife may sue alone does not apply to an action begun before the adoption of the amendment.Moody v. Southern Pac. Co., 167 Cal. 786, 141 Pac. 388.

3.

Action for personal injuries-Parties. -In an action for damages for personal injuries sustained from a defective condition of a wife's separate property, the husband is a necessary party defendant, and where the action is dismissed as to him for failure to serve him with the summons within the statutory time, she is also entitled to have the action dismissed as to her, and mandamus will lie for such purpose.-Horsburgh v. Murasky, 169 Cal. 500, 147 Pac. 147.

4. Mandamus is the proper remedy to procure the dismissal of the action as to the wife under such circumstances, as there is no plain, speedy and adequate remedy available to her. Horsburgh v. Murasky, 169 Cal. 500, 147 Pac. 147.

5. -Where wife lives separate.—Where an action is brought against a married woman, living separate from her husband, to recover real property, the husband, who has deserted her, is not a necessary party.Porter v. Johnson, 172 Cal. 456, 156 Pac. 1022.

6. -Where wife deserted.-A husband is a necessary party to an action by his wife for personal injuries to her if living with her, and if he deserts her after the injury, he is a necessary party until the date of his desertion. Mortell v. Los Angeles College of Osteopathy, 30 Cal. App. 422, 158 Pac. 508.

§ 372.

1. Guardian ad litem. In an action prosecuted by a guardian ad litem it is unnecessary under this and the following section to prove that the guardian had filed a bond, taken the oath and received letters under the seal of the court. It is sufficient to show that she or he had filed a petition for appointment and that the court had made an order appointing her or him.Foley v. Northern California Power Co., 165 Cal. 103, 130 Pac. 1183.

2. The code sections providing for the appointment of guardians ad litem are not

applicable to probate proceedings.-Estate of Lamb, 6 Cof. Prob. Dec. 432.

3. Guardian ad litem of an incompetent person is authorized, subject to the approval of the court, to compromise and agree to the judgment to be entered in the suit pending for or against the ward, and notification to the ward personally of the proposed compromise is not legally necessary.-Eggers v. Krueger, 236 Fed. 852.

4. Receipt by a guardian ad litem effecting a compromise for his ward of compensation for his services is not evidence of any impropriety or breach of good faith where the court found the same was reasonable, and ordered it to be paid.-Eggers v. Krueger, 236 Fed. 852.

con

2. Evidence. In a civil action for rape, as the result of which the plaintiff gave birth to a child, where there was no troversy as to the birth of the child, it is competent for the plaintiff to testify that the defendant was the father thereof.— Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

3. In a civil action for rape, it is not prejudicial error to permit a physician to testify as to the period of gestation.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

4. In a civil action for rape, testimony by the plaintiff that she remained on friendly terms with the defendant, as he had promised her father he would marry her, is material, and properly admitted in evidence. -Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

5. In a civil action for rape, a statement by a witness that he had seen the plaintiff and a third person at certain springs is properly stricken out as immaterial.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

6. In a civil action for rape, where the chastity of the plaintiff was made an issue, evidence as to the plaintiff's chastity is material both as to the measure of damages and also as tending to show the probability

or nonprobability of resistance on the part of the plaintiff.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

7. In such an action it is proper to permit testimony as to whether the plaintiff became unconscious at any time during the assault, and as to her physical condition at the time of the trial as compared with that at the time of the assault.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

8. Instructions.-In an action for rape, an erroneous instruction that the chastity of the plaintiff is only material for the purpose of showing the damages is not prejudicial where the defense was an alibi and not based on the fact that the plaintiff had consented to the act.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

9. In such an action it is peculiarly a matter for the trial court to determine whether it should instruct the jury to disregard the remark of plaintiff's attorney in addressing the jury, calling their attention to the child to which the plaintiff gave birth, and asking that it be compared with the defendant.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

10. An instruction that "compensatory damages should be given in such amount as in your judgment will fairly compensate her for the injury she has received by reason of the act complained of, taking into consideration her physical suffering and disability during pregnancy and in child birth, if you find the pregnancy was the result of the defendant's act, also her mental suffering, shame and disgrace, and her loss of social standing, and all other harm you find she suffered as the natural result of the wrong," is not an invasion of the right of the jury, telling it that damages should be awarded to plaintiff regardless of whether she gave her consent or not, and when read in connection with other instructions, and also as stated therein, the jury is directed to compensate her for the wrong by reason of the act complained of.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086.

§ 377.

DEATH FROM WRONGFUL ACT. 1-3. Construction of section. 4, 5. Amount of recovery.

6, 7. Abatement and survival of action. 1.

Construction of section. Statutes like this section create a right entirely distinct from that vested in the injured person before his death.-Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491.

2. This section was not abrogated so far as concerns actions by the representatives of deceased employees by the subsequent amendment of section 1970 of the Civil Code, providing that in cases of negligent death his personal representatives shall have a right of action against the employer, and recover damages on behalf of the widow, children, and enumerated relatives. This section still remains in full force and gives the right of action and fixes the measure

of recovery in all cases. Section 1970 of the Civil Code is to be construed with this section and not as superseding it.-Gonsalves v. Petaluma & Santa Rosa R. Co., 173 Cal. 264, 159 Pac. 724.

3. A cause of action founded upon the employer's neglect in furnishing the employee a safe place in which to do his work is one existing under this section and not one under section 1970 of the Civil Code.Gonsalves v. Petaluma & Santa Rosa R. Co., 173 Cal. 264, 159 Pac. 724.

4. Amount of recovery.-Pecuniary damage is the limit of recovery and the amount allowed by the jury must bear some reasonable relation to the pecuniary loss shown by the evidence.-Dickinson v. Southern Pac. Co., 172 Cal. 727, 158 Pac. 183.

5. A plaintiff suing under a statute like this section "does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff [or the heirs represented by him] on account of the death of the relative; that sorrow and mental anguish caused by the death are not elements of damage; and that nothing can be recovered as a solatium for wounded feelings."-Dickinson v. Southern Pac. Co., 172 Cal. 727, 158 Pac. 183.

6. Abatement or survival of action.-The common law rule as to abatement of personal actions by death has not been changed in this state, and the cause of action for damages for the death of a person, not a minor, caused by the wrongful act or neglect of another given to his heirs or personal representatives by section 377 of the Code of Civil Procedure, abates with the death of the wrongdoer prior to action brought, and such an action can not be maintained against his personal representatives.-Clark V. Goodwin, 170 Cal. 527, L. R. A. 1916A 1143, 10 N. C. C. A. 1022, 150 Pac. 357.

7. Section 377 of the Code of Civil Procedure, which provides that "when the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may main tain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then, also against such other person," modifies the common law only to the extent of giving a right of action for damages caused by the death of a person, to his heirs, or to his personal representatives solely for the benefit of his heirs, and in no way purports to affect the well settled common law rules as to abatement of personal actions by death.-Clark v. Goodwin, 170 Cal. 527, L. R. A. 1916A 1143, 10 N. C. C. A. 1022, 150 Pac. 357.

§ 380.

1. Determining conflicting claims to title -McEnerney Act.-Where, in a proceeding under the McEnerney Act, a person interested in the real property is not made a party to the proceeding, she is not bound

10.

1.

By transferee after action begun. Construction of section.-If this section is applicable to corporations it does not authorize the continuance of the action against the corporation itself, but only against its representative or successor in interest brought in on motion.-Lowe v. Superior Court, 165 Cal. 708, 134 Pac. 190.

2. This section applies only where the cause of action survives and does not change any existing rule as to survival of causes of action.-Clark v. Goodwin, 170 Cal. 527, L. R. A. 1916A 1143, 10 N. C. C. A. 1022, 150 Pac. 357.

3. This section does not attempt to define the causes of action which survive, but describe what proceedings shall follow the death or assignment of a cause of action which does survive and is assignable.Estate of Baker, 170 Cal. 578, 150 Pac. 989. 4. The contest of a will is a special probate proceeding and this section is applicable thereto by virtue of section 1713.Estate of Baker, 170 Cal. 578, 150 Pac. 989.

5. Proceeding by representative or successor in interest-By administrator.-Where a plaintiff to enforce a contract in the nature of an agreement to make a will in his favor dies before the case comes to trial the action may be continued by his administrator, who is also his heir, in both his representative and individual capacity. — Rogers v. Schlotterback, 167 Cal. 35, 138 Pac. 728.

As to proceeding by executor, or executrix, see post, par. 9, this note.

6. -Attorney and assignee.-Where an attorney takes an assignment to himself after a judgment recovered for his client, he may be substituted in the place of the client upon suggestion of the latter's death. -Potts v. Paxton, 171 Cal. 493, 153 Pac. 957.

7. By cotenant.-A cotenant who conveys his interest pending a suit for partition may make a motion in the interest of his grantees to reopen the case.-East Shore Co. v. Richmond Belt Ry., 172 Cal. 174, 155 Pac. 999.

8. Such a motion, by virtue of section 385 of the Code of Civil Procedure, may be made by a grantor which, by its conveyances, has parted with its entire interest.-East Shore Co. v. Richmond Belt Ry., 172 Cal. 174, 155 Pac. 999.

9. -By executor or executrix. — In an action to enforce a lien the executrix of a grantee to whom the property in controversy had been transferred pendente lite, the grantee having died after the commencement of the action, may appear and move to vacate a judgment of default against his grantor.-McKendrick v. Western Zinc Min. Co., 165 Cal. 24, 130 Pac. 865.

As to proceeding by administrator, see supra, par. 5, this note.

10. -By transferee after action begun.— Where a transfer by the plaintiff of property in controversy occurs after the beginning of the action, it is optional with the transferee to continue the action in the name of the original plaintiff or to have himself substituted and proceed in his own name. Knobloch v. Associated Oil Co., 170 Cal. 144, 148 Pac. 938.

§ 386.

1.

Substitution of parties - Purpose of section. The design of section 386 of the Code of Civil Procedure is to enable a party who has been sued upon a contract as to which he admits full liability as to the amount thereof to show that a third party not named in the action claims some right to the proceeds of the contract either by way of complete ownership or that he possesses a lien against the same; and so showing, to deposit the money due in court and have the third party made defendant in his stead, thus placing in positions of adversaries the real parties in interest.-Youtz v. Farmers & Merchants' Nat. Bank, 31 Cal. App. 370, 160 Pac. 855.

2. Substitution of defendant. The dismissal of a will contest because of the death of the contestant should be ordered only after substitution of his personal representative and by judgment running against him.-Estate of Baker, 170 Cal. 578, 150 Pac. 989.

3. The right to contest a will is a chose in action which is assignable, and upon the death of the person having the right to wage the contest it passes to his personal representative.-Estate of Baker, 170 Cal. 578, 150 Pac. 989.

4. In an action by a wife against a bank to recover money on deposit therein in her own name, which the bank refused to pay to her for the reason that it had been attached for a debt of the husband under the claim that it was his money, the bank has the right under section 386 of the Code of Civil Procedure to have the plaintiff in the attachment suit substituted as party defendant in its place upon payment of the money into court. Youtz V. Farmers & Merchants' Nat. Bank, 31 Cal. App. 370, 160 Pac. 855.

5. When in the course of an action it is brought to the attention of the court, either

by the pleadings and proof of the defendant, or by the suggestion of the fact on the part of the plaintiff, that the names of the trustees of the corporation should appear in the place of the names of the corporation itself as a party plaintiff, and when it clearly appears that the cause of action is unchanged and that the real parties in interest remain the same, and that the meritorious defenses of the defendant will be unaffected, and that the only purpose and effect of the proposed amendment is the mere formal change in the names of the parties plaintiff without any change in the substantial rights and relations of the real actors in the case, the court should order the substitution made, and it is an abuse of discretion for the court to refuse so to do.-Kehrlein-Swinerton Construction Co. v. Rapken, 30 Cal. App. 11, 156 Pac. 972.

§ 387.

1. Intervention—Time of application for. -In an action between two purchasers of corporate stock to have it declared that the purchaser who conducted the negotiations held a part of the stock issued to him in trust for the plaintiff, on the ground of fraudulent representation made as to the amount to be paid for the stock, a bank to whom the stock had been pledged as security for a loan is properly denied leave to intervene, when such application is not made until after judgment, and it is shown that the president of the bank was acquainted with the pendency of the action and understood the nature thereof long prior to the time when it came on for trial, and during that time discussed the case with the plaintiff.-Mack v. Eummelen, 31 Cal. App. 506, 160 Pac. 1096.

2. The law does not contemplate that a person who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may wilfully omit to intervene, and then compel a retrial of the case because it has gone against his interests.-Mack v. Eummelen, 31 Cal. App. 506, 160 Pac. 1096.

§ 388.

ACTION AGAINST ASSOCIATIONS OF

PERSONS.

1. Against members of labor union. 2. Against partnership.

This

1. Against members of labor union. section authorizes the maintenance of an action to enjoin "picketing" against the members of a labor union in their common or associate name, and all members having knowledge of the terms of any injunction, as well as their officers, agents, representatives, and employees having such knowledge, are bound thereby and guilty of contempt in any wilful violation thereof.— Armstrong v. Superior Court, 173 Cal. 341, 159 Pac. 1176.

2. Against partnership. -A copartnership is a legal entity and may be sued and judgment entered against it.-Asbestos Mfg.