tion" means not only mere words uttered but includes the attorney's knowledge of acts as well.-Ex parte McDonough, 170 Cal. 230, Ann. Cas. 1916E 327, L. R. A. 1916C 593, 149 Pac. 566.

3. Attorney and client.-The rule of privileged communications between attorney and client does not apply in litigation, after the client's death, between parties, all of whom claim under the client.-Smith v. Smith, 173 Cal. 724, 161 Pac. 495.

4. An attorney at law who has been retained to represent certain persons in connection with any and all investigations that were being made or that might be made as to their participation in certain alleged election frauds and violations of the election laws, can not be compelled, without their consent, to testify before the grand jury as to whether or not he was employed by them to defend certain other persons who had been indicted by the grand jury for participation in such election frauds, whether or not they furnished the bail money which he deposited for their release, for such questions called for "communications" received by the attorney from his client, concerning which he can not testify without the client's consent.-Ex parte McDonough, 170 Cal. 230, Ann. Cas. 1916E 327, L. R. A. 1916C 593, 149 Pac. 566.

or

of an attorney does not render, the communication attending it privileged, and the same may be testified to by him as by any other agent.-Ferguson v. Ash, 27 Cal App. 375, 150 Pac. 657.

7.

Under subdivision 4-Physician and surgeon. In an action to recover for personal injuries in a negligence case an instruction given at the defendant's request in which after stating that, by reason of privilege defined herein, the physicians who had attended the plaintiff could not testify without his consent, it charged that if the plaintiff had failed to call them as witnesses, and showed no reason for such failure, the law presumed that their testimony would have been against him, is erroneous.-Cook v. Los Angeles R. Corp., 169 Cal. 113, 145 Pac. 1013.

§ 1884.

1.

Interpreter.-The propriety of calling an interpreter and the fitness of the person so called are matters for the trial court.People v. Valencia, 27 Cal. App. 407, 150 Pac. 68.

§ 1902.

1. Evidence as to laws of another state -Witness need not be lawyer.-Oral testimony may be given by any witness who is skilled therein and he need not have practiced law or been a professor of law. The fact that he was not a lawyer would go to the weight of the testimony and not to its competency.-Estate of Faber, 168 Cal. 491, 143 Pac. 737.

§ 1908.

EFFECT OF JUDGMENT UPON RIGHTS. 1, 2. As bar to future proceedings. 3-16. Conclusiveness as to parties and privies (subd. 2).

1. As bar to future proceedings.-In order that a former judgment be a bar to future proceedings, it must appear that such judgment necessarily involved the determination of the same fact to prove or disprove which it is pleaded or introduced in evidence. It is not enough that the question was one of the issues in the former suit; it must appear to have been precisely determined.-Purcell v. Victor Power & Min. Co., 29 Cal. App. 503, 156 Pac. 1009.

2. The fact that the plaintiff in the present action acquired title to the property in question after issue joined and before judgment in the action in ejectment does not make such judgment conclusive upon him, where the acquisition of such property was not set up by supplemental answer therein. -Purcell v. Victor Power & Min. Co., 29 Cal. App. 503, 156 Pac. 1009.

3. Conclusiveness as to parties and privies (subd. 2).-A successor of the assignee of a certificate for the purchase of state land, which was afterward canceled, who

acquired his interest after injunctive judgment had been rendered and with notice, is bound by such injunctive judgment.-Lake v. Superior Court, 165 Cal. 182, 131 Pac. 371. 4. The successor in interest of the original defendant in an action to enjoin the latter from diverting waters is bound by a judgment in favor of the plaintiff to the same extent as the original defendant before the transfer of its property.-Gale v. Tuolumne County Water Co., 169 Cal. 46, 145 Pac. 532.

5. Parties to a judgment are not bound by it in a subsequent action unless they were adverse parties in the original action. -Robson v. Superior Court, 171 Cal. 588, 154 Pac. 8.

6. The bar of former adjudication can be raised only between those who were adverse parties in the former suit, and the judgment in the former suit settles nothing as to the relative rights or liability of the codefendants as between themselves, unless their conflicting claims were put in issue by crosspetition or adverse answers and were actually litigated and adjudicated.-Robson v. Superior Court, 171 Cal. 588, 154 Pac. 8.

7. A judgment is conclusive between the parties not only upon the matters actually litigated but upon every ground of recovery. -Erving v. Goodman, 171 Cal. 569, 153 Pac. 945.

8. Identity of the issue involved and identity of the parties are the two essential requirements to a valid plea of res adjudicata.-Rauer v. Rynd, 27 Cal. App. 556, 150 Pac. 780.

9. Where it does not appear from the record that the cause of action in the former suit was identical with that in the action in which it is pleaded in bar, the fact may be proved by evidence aliunde.-Rauer v. Rynd, 27 Cal. App. 556, 150 Pac. 780.

10. If a particular point or question is in issue in the second action, and the judgment will depend upon its determination, a former judgment between the same parties will be final and conclusive in the second if the same point or question was in issue and adjudicated in the first suit, otherwise not.-Rauer v. Rynd, 27 Cal. App. 556, 150 Pac. 780.

11. Where the right, title or ownership of property is directly put in issue, whether by the pleadings or the course of the litigation, and is tried and determined, the judgment is conclusive thereon in all further litigation between the same parties or their privies, whatever may have been the nature or purpose of the action in which the judgment was rendered or of that in which the estoppel is set up.-Rauer Rynd, 27 Cal. App. 556, 150 Pac. 780.

V.

12. A judgment in an action in which the title to a chattel was directly in issue and adjudicated is conclusive on that point between the parties and their privies, without regard to the form or purpose of the action-Rauer v. Rynd, 27 Cal. App. 556, 150 Pac. 780.

13. The filing of a complaint in an action for the foreclosure of such deed as a mort

gage, and subsequent dismissal of the action, does not conclude the defendant herein from relying upon the judgment in the action of ejectment or from asserting that such deed was not a mortgage, where the evidence of the original transaction shows that such deed was deposited with a third party to be held for a certain time, and if the debt for which it was given as security was not then paid, the deed was to be delivered to the mortgagee in full satisfaction of the indebtedness.-Simon v. McCoy, 28 Cal. App. 523, 153 Pac. 406.

14. Where a court has jurisdiction, mere error in its judgment will not vitiate the decree to the extent of rendering it vulnerable to collateral attack. Nor does the fact that error appears upon the face of the decree alter or change the rule.-Rountree v. Montague, 30 Cal. App. 170, 157 Pac. 623.

15. A right, question or fact definitely put in issue and directly determined by the court of competent jurisdiction as a ground of recovery can not be contested in a subsequent suit between the same parties or their privies.-People v. Bailey, 30 Cal. App. 581, 158 Pac. 1036.

16.

A judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again an issue between them, not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court, except on appeal or other proceeding provided for its revision.-Atchison, T. & S. F. R. Co. v. Nelson, 220 Fed. 53.

§ 1910.

1. Identity of parties Construction.— The expression in section 1910 of the Code of Civil Procedure, "and a judgment or other determination could in that case have been made between them alone," relates to and qualifies section 1909, not section 1908.Atchison, T. & S. F. R. Co. v. Nelson, 220 Fed. 53.

§ 1911.

JUDGMENT.

1-4. As to what deemed adjudged by. 5, 6. Estoppel by.

1. As to what deemed adjudged by.—The general rule that a judgment is conclusive, not only as to that which is actually determined, but also as to every other matter which the parties might have litigated in the action, is not always applicable literally. -Brown v. Brown, 170 Cal. 1, 147 Pac. 1168. 2. Where, in an action involving a partnership, the prayer of the complaint is for a dissolution of the firm and appointment of a receiver to sell the property and out of the proceeds pay the partnership debts, dividing the balance, if any, between the partners, the judgment will not be a bar to a subsequent suit for an accounting.-Miller v. Kraus, 51 Cal. Dec. 154, 155 Pac. 838.

3. That a former judgment may be a bar to future proceedings, it must appear that

such judgment necessarily involved the determination of the same fact to prove or disprove which it is pleaded or introduced in evidence. It is not enough that the question was one of the issues in the former suit, but it must appear to have been precisely determined.-Purcell v. Victor Power & Min. Co., 29 Cal. App. 504, 156 Pac. 1009.

4. That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.-People Bailey, 30 Cal. App. 581, 158 Pac. 1036.

V.

5. Estoppel by. It is not the finding of the court or the verdict of the jury which concludes the parties but the judgment entered thereon; in other words, the force of an estoppel by judgment resides in the judgment itself.-Purcell v. Victor Power & Min. Co., 29 Cal. App. 504, 156 Pac. 1009.

6. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by employing reasonable diligence, might have brought forward at the time.-Atchison, T. & S. F. R. Co. v. Nelson, 220 Fed. 53.

§ 1915.

1.

Foreign judgments, effect of.-Courts need only give to a foreign judgment the same force and effect which is given to those of our own courts, and may therefore in an equitable proceeding inquire whether it was acquired by fraud, although valid on its face. Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 173, 152 Pac. 542.

2. A judgment which operates in personam against shareholders in a Mexican corporation but which does not determine title to the corporation and the property, is not objectionable as overthrowing the judgment of a foreign court contrary to section 1915 of the Code of Civil Procedure.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174. 152 Pac. 542.

3. Where a court of this state distributes an estate to the heirs "in trust," a judgment of a court in Illinois adjudging that property of the estate in that jurisdiction be sold to the heirs is res judicata and not subject to collateral attack in California.-Plant v. Plant, 171 Cal. 765, 154 Pac. 1058.

4. Jurisdiction of a court of a foreign state to render a judgment is always open to collateral attack in a proceeding in another state, and the record of the judgment in the foreign state may be contradicted as to the fact necessary to give the court jurisdiction.-Steinbroner v. Steinbroner, 30 Cal. App. 673, 159 Pac. 235.

§ 1916.

1. Impeachment of record for fraud.-A judgment or decree of a court of competent jurisdiction can be set aside for fraud only when the fraud alleged is shown to be extrinsic or collateral to the matter which 1917 Sup.-41.

was tried and determined by such court. Instancing what intrinsic fraud consists of, our supreme court has said that it may result from (1) keeping the unsuccessful party away from the court by a false promise of a compromise; (2) purposely keeping him in ignorance of the suit; (3) where an attorney fraudulently pretends to represent a party and connives at his defeat; (4) being regularly employed, corruptly sells out his client's interest. In instances of this character, the defrauded party is prevented by the act of his adversary from having a trial.-Rountree v. Montague, 30 Cal. App. 170, 157 Pac. 623.

§ 1917.

1. Jurisdiction necessary to judgment, what is.-Jurisdiction is the power to hear and determine, and it does not depend upon the correctness of the decision made.Rountree v. Montague, 30 Cal. App. 170, 157 Pac. 623.

§ 1936.

1. Map as evidence.-The form and limits of a military reservation, as fixed by the government, may be shown by a map of a survey of the reservation made by officers of the war department and filed therein.Burk v. Howe, 171 Cal. 242, 152 Pac. 435.

§ 1937.

1. Books must be produced.-In an action by the seller of hops to recover damages from the buyer for his breach of contract, a witness should not be allowed to testify from figures compiled from the books of the seller, where the books themselves are accessible and unaccounted for. In such circumstances the books themselves afford the primary evidence of their contents.-Pabst Brewing Co. v. E. Clemens Horst Co., 229 Fed. 913.

§ 1943.

1. Construction of section.--Under section 1943 of the Code of Civil Procedure, the testimony of a witness that he has seen the defendant in a perjury case write and is of the opinion that a signature to the document in question is his, is some evidence that he subscribed the document.-People v. McLeod, 30 Cal. App. 435, 158 Pac. 506.

Evidence of handwriting

§ 1959.

1.

Presumption distinguished from inference. The difference between an evidentiary presumption and an evidentiary inference is this: That, when the law requires the jury to draw a certain designated conclusion from particular evidence, that conclusion so forced upon the jury is a presumption. Where mandatory presumptions are not exacted, it is the right and duty of the jury to draw such reasonable inferences from the evidence as may appeal to and satisfy their minds.-Thomas v. Visalia Elec. R. Co., 169 Cal. 658, 147 Pac. 972.

§ 1960.

1.

Inferences.-An appellate court has not the right of drawing its own inferences from admitted probative facts, unimpeded by the conclusions of the trial court, where all the evidence is brought up on an appeal from an order denying a motion for a new trial, for to do SO would be for the appellate court to make findings of fact; if a finding of fact is based upon a reasonable inference, it is not within the power of the appellate court to set it aside any more than it is within its power to set aside any other findings supported by sufficient legal evidence, as a finding of fact based upon reasonable inference drawn from facts proved with legal sufficiency, is as much and as completely as is any other finding of fact a finding based upon good and sufficient evidence.-Ryder v. Bamberger, 172 Cal. 753, 158 Pac. 753.

2. The inference of one fact from others, unless such fact is a necessary conclusion from those others, must be made by the trial court, and, if the facts that it has found are such as might authorize different inferences therefrom, it will be assumed that the inference made by the trial court was one that will uphold, rather than defeat, its judgment.-Spoon v. Sheldon, 27 Cal. App. 765, 151 Pac. 150.

3. The assumption of a fictitious name by one accused of crime is a circumstance which the jury may consider a strengthening of any inference of guilt arising from other established facts.-People v. Cox, 29 Cal. App. 419, 155 Pac. 1010.

4. When a person suspected of and charged with crime resorts to deception and falsehood, that is a circumstance which, like flight and concealment, tends to show a consciousness of guilt, and thereby strengthens any inference of guilt arising from other established facts.-People v. Cox, 29 Cal. App. 419, 155 Pac. 1010.

5. The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon; and whenever from the facts found other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court.Cooley v. Brunswig Drug Co., 30 Cal. App. 58, 157 Pac. 13.

1. Conclusive presumptions—Intent of accused (subd. 1).—An instruction to the jury based upon subdivision 1 of section 1962 of the Code of Civil Procedure that there are certain presumptions of law regarding a person's intent, and among them is the one that a guilty intent is conclusively presumed from the deliberate commission of an unlawful act, for the purpose of injuring another, is not sufficiently prejudicial as to call for a reversal.-People v. Dunlop, 27 Cal. App. 460, 150 Pac. 389.

2. In a prosecution for libel, based upon a letter written by the defendant containing a charge of forgery against an attorney, where the defendant upon the trial not only made no effort to prove the truth of the assertion, but expressly admitted the charge of forgery was untrue, the trial court properly excluded from evidence documents including certain letters which passed between himself and the attorney while the latter was acting for defendant in certain litigation, which letters and documents defendant contended were admissible as tending to show his intention in uttering the libel, and as proving it was published with good motives and justifiable ends, as the defendant, in uttering the libel, engaged in the deliberate commission of an unlawful act for the purpose of injuring another, from which, under section 1962 of the Code of Civil Procedure, a malicious and guilty intent is conclusively presumed.-People v. Pryal, 25 Cal. App. 779, 147 Pac. 114, 115.

3. In such a case, where the proffered evidence tended to show that difficulties had arisen between the defendant and the attorney, over the latter's conduct during certain legal proceedings, resulting in an effort on the part of the defendant to discharge his counsel, such evidence, instead of showing that the motive for publishing the willful defamation was an innocent one, would rather tend to strengthen the presumption that the publication was inspired by ill will and was malicious.-People v. Pryal, 25 Cal. App. 779, 147 Pac. 114, 115.

4. Estoppel (subd. 3).-One is culpable who by his silence leads another to believe in the existence of a state of facts in reliance upon which the other acts to his prejudice. Such person is estopped by silence. But there must be something willful or culpable in the silence, which allows another to place himself in an unfavorable position the faith or understanding of a fact which the person remaining silent can contradict.-Eltinge v. Santos, 171 Cal. 279, 152 Pac. 915.

on

other.-Eltinge v. Santos, 171 Cal. 279, 152

Pac. 915.

§ 1963.

DISPUTABLE PRESUMPTIONS.

1. As to character of suppressed evidence. 2. Death from seven years' absence.

3. Idem sonans.

4, 5. Indorsements.

6. Innocence of crime.

7. Judicial records.

8. Legitimacy.

9. Marriage from deportment.

1. As to character of suppressed evidence. -It is a satisfactory presumption that evidence willfully suppressed would be adverse if produced.-Estate of De Laveaga, 6 Cof. Prob. Dec. 55.

2.

Death from seven years' absence. The presumption does not fix the date of death at any particular time, but merely at some time during the interval.-Benjamin v. Dist. Grand Lodge No. 4, I. O. B. B., 171 Cal. 260, 152 Pac. 731.

3. Idem sonans.-The name Dimetra may be said to mean the name Demetra and falls within the rule of idem sonans, and this subdivision is then applicable.-Bruschi v. Cooper, 30 Cal. App. 682, 159 Pac. 728. 4. Indorsements.-An indorsement of a promissory note is itself presumptive evidence of a consideration therefor, and also of the fact that the indorsement was made at the time and place of the making of the note; and the presumption may be resorted to in aid of a finding to that effect in an action to recover on the indorsement, even though such presumption stands alone, and is opposed by direct evidence to the contrary.-Pacific Portland Cement Co. V. Reinecke, 30 Cal. App. 501, 158 Pac. 1041.

5. An instrument passing by delivery will be presumed to have come into the possession of the holder before maturity, and if an indorsement bears no date, the presumption is that it was made before the maturity of the instrument.-First Bank v. Pennig, 28 Cal. App. 267, 151 Pac. 1153.

6. Innocence of crime. The presumption of the continuation of life is overcome by the presumption that a person is innocent of crime or wrong, and there is also a presumption in favor of the legality of a marriage regularly solemnized.-Wilcox v. Wilcox, 171 Cal. 769, 155 Pac. 95.

7. Judicial records.-A recital in an order appealed from that the matter "came on regularly for hearing this day" will be presumed to be true.-Schulmeyer v. McAllister, 171 Cal. 340, 153 Pac. 233.

8. Legitimacy.-The presumption that a child born of a married woman is legitimate may be rebutted by evidence showing that the husband was incompetent, entirely absent so as to have no intercourse or communication of any kind with the mother, entirely absent at the period during which the child must, in the course of nature, have been begotten, or only present under such circumstances as afford clear and satisfactory proof that there was no sexual inter

1.

Construction and application-In general. The statute of frauds is simply a weapon of defense which the party entitled thereto may or may not use.-Healy v. Obear, 29 Cal. App. 696, 157 Pac. 569.

2. The statute of frauds has no application to executed oral agreements.-Frietas v. Frietas, 31 Cal. App. 16, 159 Pac. 611.

3. -Subdivision 1.-The statute does not declare invalid a contract which may not be performed within a year, or which is not likely to be performed within that period, but it includes only agreements which, fairly and reasonably interpreted, do not admit of a valid execution within the year. -Hellings v. Wright, 29 Cal. App. 649, 156 Pac. 365.

4. When a contract has been so far performed that nothing remains to be done but the payment of the consideration for the performance, the fact that the contract does not require the payment within a year furnishes no defense to an action for the price. -Hellings v. Wright, 29 Cal. App. 649, 156 Pac. 365.

5. -Subdivision 4.-A contract for the purchase and sale of goods is taken out of the statute of frauds where the buyer accepts and receives part of the goods.-Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500, 153 Pac. 939.

6. Where in an action against stockholders to recover their proportion of an indebtedness for goods sold to the corporation it is alleged in the complaint that the goods furnished were delivered in pursuance of a certain contract, the plaintiff can not claim that the contract was invalid because the price of the goods exceeded two hundred dollars and the contract was in parol.Coulter Dry Goods Co. v. Wentworth, 171 Cal. 500, 153 Pac. 939.

7. The principle that where delivery and change of possession are necessary to comply with the statute of frauds an oral declaration does not alone constitute such delivery, has no bearing or relationship to cases where the actual possession is in the vendee, and the real question is whether that possession has been transformed from that of bailment or pledge to that of complete ownership.-Wilson v. Hotchkiss, 171 Cal. 617, 154 Pac. 1.