STREET LAW (Continued).

5. STREET ASSESSMENT OPENING OF STREET UNDER ACT OF 1903-PROCEEDINGS OF CITY COUNCIL-WHEN CONCLUSIVE. Judgment reversed on authority of Nutting v. City of Los Angeles et al., ante, p. 519. (Rindge Co. v. Los Angeles, 809.),

STREETS. See Dedication, 3–5.

SUMMONS. See Dismissal, 4.

SUPERIOR COURT. See Counties, 1-3.

SUPERIOR COURT SECRETARY. See Constitutional Law, 4-6.

SUPERVISORS. See Constitutional Law, 7.

SURETY.

PRINCIPAL AND SURETY-BUILDING CONTRACTOR'S BOND-VIOLATION OF DUTY TO WITHHOLD PAYMENTS RELEASE OF SURETIES.-Sureties on the bond of a building contractor are discharged from liability by the owner's failure to comply with his duty, under section 1184 of the Code of Civil Procedure, to protect the sureties by withholding payment of unpaid installments, where notices to withhold were served upon him as provided by said section. (Silberstein v. Kitrick, 91.)

See Building Contract, 2; Mechanic's Lien, 8; Receiver, 1; Statute of Limitations, 1.

SURPRISE. See Account, 1.

TENDER. See Contract, 2; Mortgage, 7; Sales, 4.

TIME. See Insurance Law, 1.

TORT. See Damages, 1; Negligence, 2.

TRIAL. See Attorney at Law, 3; Dismissal, 1-3; Partition, 1, 2.

TRUST.

1. VOID TRUST TO CONVEY-SEPARABILITY OF VALID FROM INVALID PROVISIONS. Although the trust to convey contained in a deed of real property to trustees, with directions to apply the income for the use and support of a child of the trustor for life and after his death to convey the fee to the other children, was void under section 857 of the Civil Code before its amendment (Stats. 1913, p. 438), a provision authorizing the trustees to sell the property before the death of the life beneficiary if they "deem it necessary or if it becomes

TRUST (Continued).

advisable. . . upon such terms and price as they may deem best and for the interest of their trust," is not inseparably connected with the invalid trust, but gives the trustees a valid discretionary power to sell, and a sale made by the trustees during the existence of the equitable life estate was valid. (Aldersley v. McCloud, 17.) 2. IMPLIED DIRECTION TO APPLY PROCEEDS OF SALE.-The power to sell in such case is not invalid for failure of the deed to contain any direction as to the application of the proceeds after any sale, because the direction to apply the income of the property in its changed form according to the terms of the instrument creating the trust is clearly and unquestionably implied. (Id.)

3. CONVEYANCE BY ONE TRUSTEE OF HIS INDIVIDUAL INTERESTS-ESTATE AND POWERS OF SURVIVING TRUSTEES.-The fact that one of the trustees executed a deed conveying whatever individual interest he had in the trust property, as an heir of the trustor, could not have the effect of destroying the clear right to sell, which continued to exist in the surviving trustees. (Id.)

4. RESULTING TRUST-TRANSACTION BETWEEN PARENT AND CHILDJUDGMENT SUPPORTED BY FINDINGS.-In an action by a parent against his son to have a resulting trust declared in real property to the extent of the sums which the former claimed to have contributed to the purchase price, the finding that the plaintiff furnished money to the defendant with the understanding that he was to buy and improve the property and upon the assurance, belief, and understanding that they would occupy the premises jointly, that the sum was not intended as a loan, gift, or advancement or compensation, and that no consideration was given therefor, is sufficient to support the judg ment in plaintiff's favor, although it was not expressly found that a resulting trust arose. (Madsen v. Madsen, 487.)

5. CODE PRESUMPTION APPLICABLE TO PARENT AND CHILD.-Under the broad terms of section 853 of the Civil Code and the decisions construing and applying the same, the presumption of a resulting trust will be indulged in when the transaction is one between parent and child or husband or wife, or between members of the same family (Id.)

See Corporation Law, 1, 7.

VENDOR AND VENDEE. See Contract, 2, 14, 26, 27.

VENDOR'S LIEN.

1. NATURE OF.-It is not essential to the right to claim a vendor's lien that an intention on the part of the vendor to create and retain unto himself the right to such lien should be expressly declared. The right is given in equity and in law by the very nature of the trans

VENDOR'S LIEN (Continued).

action, and consequently exists without regard to the express agreement of the parties. (Ferger v. Allen, 738.)

2. KNOWLEDGE AND ACQUIESCENCE IN MORTGAGE OF PROPERTY-DEFEAT OF LIEN.—In view of section 3048 of the Civil Code, declaring that a vendor's lien is valid against everyone claiming under the debtor except a purchaser or encumbrancer in good faith, the right to claim such a lien is defeated by the vendor's knowledge of and acquiescence in the hypothecation of the property, as against the mortgagee. (Id.)

3. ASSIGNMENT FOR BENEFIT OF CREDITORS ·

EXTINGUISHMENT OF

LIEN. An assignment for the benefit of creditors and a conveyance made thereunder prior to any endeavor on the part of the vendor to declare and establish his lien will prevail over and operate to defeat the right to claim the lien where the creditors become subscribing parties to the assignment and thereby accept the same by assenting to and claiming the benefit of its provisions, since they assume by virtue of the assignment the character of lien claimants. (Id.)

VENUE.

1. CHANGE OF PLACE OF TRIAL-LOCAL PREJUDICE-PRESUMPTION— FOREIGN CORPORATION.-On a motion to change the place of trial upon the ground that a fair and impartial trial cannot be had no presumption can be indulged in support of the order granting the motion from the fact that the party demanding the change is a foreign corporation. (J. I. Case T. Co. v. Copren Bros., 70.)

2. TIME FOR APPLICATION.-Neither party may move for change because a fair trial cannot be had until the event has occurred which will assist the court in ascertaining whether such local prejudice exists as may influence the conduct of the jury. (Id.)

3. ABUSE OF DISCRETION.-It was held under the facts in this case that the lower court abused its discretion in granting this motion. (Id.)

VERDICT.

1. QUOTIENT METHOD VERDICT NOT BY "CHANCE."-A verdict is not one arrived at by chance within the meaning of section 657 of the Code of Civil Procedure, where the jurors disagreeing as to the amount agreed to divide the sum of the various amounts which each juror believed to be proper by the number of the jurors, without agreeing to be bound by the result, and after considering the quotient adopted it as the verdict. (Foley v. Hornung, 304.)

2. ORDER REDUCING VERDICT-ABSENCE OF COUNSEL-LACK OF PREJUDICE. A defendant cannot be heard to complain of an order reducing the amount of the plaintiff's judgment made upon the day and hour to which the matter of the motion for a new trial had

VERDICT (Continued).

been regularly continued and set for decision, because his counsel was not present at the time. (Creely v. Cohen, 642.)

3. REDUCTION OF VERDICT-POWER OF TRIAL COURT.-The judge of the trial court has the power to reduce the verdict of the jury to an amount justified by the evidence. (Id.)

4. DEFENDANT NOT PREJUDICED.-A defendant cannot complain of the action of the trial court in reducing the amount of a verdict against him. (Id.)

See Criminal Law, 37.

VESTED RIGHTS. See Employers' Liability Act, 1.

WAIVER. See Dismissal, 5; Evidence, 6.

WATER RIGHTS.

1. QUANTITY OF WATER NECESSARY TO USE-CONFLICT OF EVIDENCE— NEW TRIAL.-In an action to enjoin the taking and using of all the water from a creek, an order granting a new trial is justified where the judgment gave the defendants all the water and the evidence was sufficiently conflicting to justify a conclusion that all the water was not necessary to the uses to which it was applied. (Sonoma Valley etc. Co. v. O'Brien, 109.)

2. SUFFICIENCY OF FINDINGS.-In an action to determine water rights, for an injunction and damages, a finding that plaintiff's predecessors in interest, did not appropriate all the waters of the stream carrying ten and seventy-five hundredths' inches of water, and that such predecessors appropriated six inches, while lacking definiteness, impliedly shows that defendants are entitled to the difference between the plaintiff's appropriation and the total flow. (Ilepler v. Wright, 567.)

WITNESSES. See Criminal Law, 7; Instructions, 3.

WORKMEN'S COMPENSATION ACT.

1. STATUS OF APPLICANT-FINDING OF COMMISSION.-An award of the Industrial Accident Commission must be sustained if there be any evidence to support its finding that the applicant for compensation was an employee at the time of the accident. (Yolo W. & P. Co. v. Industrial Acc. Com., 14.)

-

2. FOREMAN OF WATER COMPANY- AUTHORITY TO HIRE MEN AND TEAMS-DRIVER OF FOREMAN'S OWN TEAM-RELATIONSHIP OF PARTIES. A foreman of a water and power company employed at a per diem wage, with full authority to hire men and teams to assist him in his employer's work, is not, in a case where he furnishes his own team and hires a driver therefor, to be considered as an employer

WORKMEN'S COMPENSATION ACT (Continued).

with reference to such driver, the latter receiving his wages from the company and the foreman being paid only for his team. (Id.)

3. INJURY TO ELECTION OFFICER-NONEXISTENCE OF RELATIONSHIP OF EMPLOYER AND EMPLOYEE.-Under the Workmen's Compensation Act, the judge of an election board at a municipal election is not an employee of the city, and cannot claim compensation for injuries received in taking the election returns to the city hall, since he was performing a public duty and the city was without control of his actions or power to provide means to secure his safety. (Los Angeles v. Industrial Acc. Com., 31.)

4. INJURY TO ROAD CONSTRUCTION FOREMAN-ASSAULT BY DISCHARGED LABORER-INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT. An injury received by a road construction foreman from a blow delivered by a discharged laborer is an injury arising out of, and in the course of, his employment under the Workmen's Compensation Act, since it occurred while he was engaged in doing work within the scope of his employment, and at a time and place when and where it was his duty to perform it, and it arose out of his employment because it followed as a natural incident of the work occasioned by the nature of the employment and performance of the duty which it imposed upon him as such foreman. (San Bernardino v. Industrial Acc. Com., 34.)

5. INJURY TO NIGHT WATCHMAN-UNWARRANTED USE OF CIRCULAR SAW. Under the Workmen's Compensation Act, an award of compensation to a night watchman for an injury sustained while using a circular saw for the purpose of making a board of suitable length to barricade a door must be annulled, for even assuming that it was within the scope of his employment to see that the doors of the premises were properly secured by locking, the resort to the use of the saw was entirely beyond the scope of his employment. (Brusster v. Industrial Acc. Com., 81.)

6. RELATIONSHIP OF EMPLOYER AND EMPLOYEE-EVIDENCE-AFFIRMANCE OF AWARD.-A writ of review to annul an award of compensation made by the Industrial Accident Commission must be dismissed and the award affirmed where the evidence sustains the conclusion of the commission that the relation of employer and employee existed between the petitioner for the writ and the applicant for compensation. (Gorter v. Industrial Acc. Com., 88.)

7. AFFIRMANCE OF AWARD EVIDENCE.-An award of compensation to an employee of a manufacturing establishment must be affirmed where the record on petition for a writ of review shows that the finding of the commission is sustained by the law and the evidence adduced at the hearing. (Globe Indemnity Co. v. Industrial Acc. Com., 89.)