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LANDLORD AND TENANT (Continued).
the plaintiff, he was acting in the capacity of an agent of the corporation, and that his contract with the plaintiff, was the contract
of the corporation, were wholly untena ble. (Ia.) 11. VALIDITY OF LEASE BY CORPORATION-RULE OF LAW-LEGISLATIVE
RESTRICTION UPON EXECUTION.—It is the rule of law in this state that an ordinary private corporation may lease its entire business, whenever such a course is necessary for the best interests of the corporation, stockholders, and creditors. The only legislative restriction placed upon the execution of such a lease is that the con sent of at least two-thirds of the issued corporate capital stock must first be procured, and that such consent must be expressed, either in writing and acknowledged by such stockholders, and made part of the lease, or by vote at a stockholders' meeting called for the
purpose of considering and consenting to such lease. (Id.) 12. MERE LEASE BY CORPORATION-INVALIDITY OF PARTNERSHIP WITH
INDIVIDUAL NOT INVOLVED.—Where the instrument in question is one of mere lease by a corporation for a term of years, which expressly declares that it shall not be construed as constituting a partnership, no question is involved as to the invalidity of a partnership between a corporation and an individual, and such question need not be
discussed. (Id.) 13. RENT RESERVED IN LEASE BY CORPORATION-PERCENTAGE OF NET
PROFITS-PARTNERSHIP NOT ESTABLISHED-CONSTRUCTION OF LEASE AGAINST PARTNERSHIP.—The provision in the corporation's lease of its business for a term of years that the rent reserved should be a sum equal to twenty-five per cent of the net profits of the business, did not in and of itself, establish a partnership relation with the lessee. As there is no express agreement to divide the profits, there is no implied agreement to share the losses. Not only are the ex. press terms of such lease against any construction thereof as constituting a partnership, in that it provides that the division of the profits herein provided shall be construed merely as the method of ascertaining the rental to be paid; but also the idea of a permanent lease for a definite term of years is at war with the notion of such an
indeterminate and fitful relation as a partnership. (Id.) 14. COUNTERCLAIM BY CORPORATION DEFENDANT AGAINST PLAINTIFF
NEGOTIATION SALE-HORSES WRONGFULLY WITHHELD_PAY. MENT OBTAINED BY DURESS OF GOODS.-In the action by the plaintiff against the corporation defendant and its lessee to recover for the care of horses kept in plaintiff's stable, such corporation may plead, by way of counterclaim in such action, that before the commencement of the action it had negotiated for a sale of all of its business and property, including such horses, and that, in order to obtain the possession thereof for the purpose of such sale, it was compelled to make or permit a payment to effect the same, which was deemed
LANDLORD AND TENANT (Continued).
obtained by “duress of goods,” and may be counterclaimed by the
corporation defendant in such action. (Id.). 15. PAYMENT BY PROPOSED PURCHASER TO AVOID THREATENED LOSS TO
CORPORATION-PAYMENT DEEMED BY CORPORATION.- Where the purchaser refused to complete the proposed sale, the failure to complete which would have resulted in great loss and damage to the corporation, unless such horses were delivered, and in order to procure the delivery, it was compelled, under protest, to permit the proposed purchaser to make the necessary payment to secure the same, and deduct the same from the proposed purchase price, such payment must be deemed to have been made for the corporation, and consequently made by it, to justify its counterclaim therefor.
(Id.) 16. LIEN FOR SERVICES PERFORMED ON PERSONAL PROPERTY-CREATION
FOR OWNER ESSENTIAL-ABSENCE OF LIEN ON HORSES AGAINST CORPORATION.-In order to create a lien for services ren. dered upon personal property or for the care and keeping thereof, while lawfully in the possession of the claimant of such lien, under section 3051 of the Civil Code, it is essential that it should be created only by the act of the owner of the property sought to be charged, or by the act of another person duly authorized by the owner. It is held that, upon the facts of the present case, the plaintiff was entitled to no lien upon the horses in question for their care and keeping as against the corporation defendant, as its only contract was made with its lessee, who had no authority to charge the cor
poration with any debt. (Id.) 17. GENERAL RULE AS TO VOLUNTARY PAYMENTS-QUALIFICATION,
PAYMENT OF UNLAWFUL DEMAND UNDER PROTEST-SERIOUS Loss TO OWNER FROM DELAY.—The general rule of law that if a person knowingly submits to an illegal demand by paying that which is demanded, instead of invoking the remedy which the law affords against such demand, such payment will be deemed to be voluntary, is subject to the qualification, that in cases where the person making the demand obtains possession of another person's property, without first resorting to judicial proceedings to test its validity, pay. ment under protest will be deemed compulsory, if the demand is unlawful, and the delay incident to the recovery of the property by legal proceedings would result in serious loss to the owner of the property. (Id.)
See Injunction, 1, 2; Unlawful Detainer,
LARCENY. See Criminal Law, 45–52.
LEASE. See Landlord and Tenant.
LEWDNESS. See Criminal Law, 84–91.
LIBEL. 1. PUBLICATION IN JAPANESE AND CHINESE LANGUAGE-PLEADING
TRANSLATION IN ENGLISH REQUIRED.-In an action for a libel which was published in the Japanese and Chinese language, it is not necessary to set forth the Japanese and Chinese figures or characters employed in the publication thereof. Judicial proceedings in this state are required under section 24 of article 4 of the constitution, to be conducted in the English language; and a correct translation of the libel into the English language is thereby required, alleging it to be such, without requiring a copy of the original to be inserted in the complaint. (Stevens v. Kobay
shi, 153.) 2. CONSTRUCTION OF CODE PROVISION—“ORDINARY AND CONCISE LAN
GUAGE.”—Under the provision of subdivision 2 of section 426 of the Code of Civil Procedure requiring that “The complaint must contain: ... 2. A statement of the facts constituting the cause of action, in ordinary and concise language,” the English language is intended. The Japanese or Chinese language is not "ordinary
language” within the meaning of that provision. (Id.) 3. TRANSLATION-AMBIGUITY MEANING ONE WORD IMMATE
RIAL.—When the Japanese word "mekake" may be translated either “mistress” or “concubine," the use of the word "concubine" in rendering that word into English is immaterial, and an objection
based on the use of the latter word cannot be sustained. (Id.) 4. CAUSE OF ACTION-PROOF OF USE OF ALL WORDS ALLEGED NOT
REQUIRED.-It was not necessary for the plaintiff to prove the use of all the words alleged; but it is sufficient that she proved enough to establish her cause of action against the defendant. (Id.)
LICENSE. See Intoxicating Liquors.
LIENS. See Mechanics' Liens; Mortgage; Novation,
LOCAL OPTION. See Intoxicating Liquors.
LUVACY COMMISSION. 1. HOME FOR FEEBLE-MINDED_RECOVERY OF COST AND EXPENSE OF MAIN
TENANCE · ACTION BY STATE COMMISSION IN LUNACY AGAINST COUNTY TREASURER UNAUTHORIZED.—An action by the state commission in lunacy against the treasurer of a county to recover for the state the amount due from the county for commitments of children to the home for the feeble-minded, for the cost of their maintenance therein, was unauthorized under sectio) 2193 of the
LUNACY COMMISSION (Continued).
Political Code as it existed prior to the amendment of 1911 thereto.
(State Commission in Lunacy v. Welch, 624.) 2. PARTIES AUTHORIZED TO BE SUED — SECTION 2197 OF POLITICAL
CODE.—Under section 2197 of the Political Code, the right is given only "to sue any county, ... for such care, maintenance, and expense.” The county treasurer under that section cannot be sued for
the county. (Id.) 3. SUIT AGAINST COUNTY TREASURER OR County-QUESTIONS OF Con.
TROL AND Costs.-In a suit against the county treasurer, the county treasurer personally controls the suit, and is liable for costs, while in an action against the county, the board of supervisors controls
the defense, and the county is liable for the costs. (Id.) 4. INSUFFICIENT COMPLAINT IN MANDAMUS TO COUNTY TREASURER
WANT OF FUNDS IN TREASURY NOT SHOWN-CAUSE OF ACTION NOT STATED.—A complaint in mandamus to compel the county treasurer to pay into the state treasury moneys due from the county on account of inmates therefrom in the state home for the feeble-minded, which does not allege that there is any money in the county treasury, or in the custody of the treasurer with which to pay the demand,
fails to state a cause of action. (Id.) 5. DEFECT IN PLEADING NOT CURED BY AMENDMENT NOT AFFECTING
PENDING LITIGATION.—The defect in such complaint filed prior to the amendment of section 2193 of the Political Code in 1911, dispensing with the necessity of alleging or proving any fact with relation to the funds of the county in a mandamus proceeding against the county, was not cured by such amendment, as the same
by its terms did not affect pending litigation. (10.) 6. STATUTORY CONSTRUCTION-RETROACTIVE LAWS-POWER OF LEGIS
LATURE-LEGISLATIVE INTENT.—While the state legislature has power to pass retroactive laws, which do not impair the obligations of contracts or vested rights, laws are not construed as intended to have a retroactive or retrospective effect, so as to affect pending litigation, unless such intent is expressly declared or necessarily
implied in the language of the statute. (Id.) 7. ACTIONS BY--HOME FOR FEEBLE-MINDED.—Judgment affirmed on the
authority of State Commission in Lunacy v. Welch, ante, p. 624. (State Commission in Lunacy v. Welch, 807.)
MANDAMUS. See Appeal, 4; Election, 1-3, 5, 6, 23-27; Execution,
4; Intoxicating Liquors, 3; Irrigation District, 5, 6; Lunacy Commission, 4, 5; New Trial, 6; Pleading, 3.
MASTER AND SERVANT. Sce Negligence, 4-6, 19–25.
MEASURE OF DAMAGES. See Damages.
AGAINST CONTRACTORS—PLEA IN ABATEMENT OF PRIOR ACTION
ning, 766.) 2. PARTIES TO FORECLOSURE-MATERIALMEN-ELECTION OF ACTION
CONTRACTOR.—Under the provisions of section 1197 of the Code of Civil Procedure, any person to whom a debt is due for materials furnished for the erection of a building may, in addition to an action to foreclose a lien against the building and its owner, main. tain a personal action to recover such debt against the person liable therefor. But, under the established and approved practice in this state, the person contracting for such materials may be made a party defendant with the owner of the building in an action to foreclose a mechanic's lien, in which a personal judgment may be rendered against the contractor, even though the lien may be denied. The contractor is a proper defendant, to avoid a multiplicity of suits.
(Id.) 3. POLICY OF LAW AGAINST DIFFERENT SUITS UPON SAME SUBJECT
MATTER.—It is not the policy of the law to permit different suits to be instituted and pending between the parties concerning the same matter; and hence the rule that an action abates upon a showing of the institution and pendency of a prior action betizen the same parties upon the same subject matter. It is not only unnecessary but would be vexatious to permit the prosecution of a second suit founded upon the same subject matter. (Id.)
MINES AND MINING. 1. MINING CLAIMS-LOCATION-EXCESSIVE BOUNDARIES NOT VITIATING
CLAIM—Good Faith PRESUPPOSED.—The location of a mining claim is not rendered invalid merely because the locator includes within its boundaries more than the law permits. He is entitled to hold to the limit which the law authorizes, within the limits laid out, and only the territory embraced within his boundaries, which is in excess of such limits is to be rejected. This rule presupposes a location which injured no one at the time it was made and where it has been
made in good faith, (Madeira v. Sonoma Magnesite Company, 719.) 2. EXCEPTION TO RULE-COURSES WIDELY SEPARATED APPLICATION TO
LODE IN QUESTION-Loss or NOTICE-SUBSEQUENT LOCATOR NOT