Assignee for Benefit of Creditors may sue to cancel note fraudulently given by debtor to a creditor, p. 237.

Distinguished in Francisco v. Aguirre, 94 Cal. 186 (but see p. 188), denying his power to sue to recover property conveyed in fraud of creditors.

83 Cal. 239-240. McMULLIN v. LEITCH.

Toll Road Corporation and stockholders have no interest in highway after expiration of franchise, p. 240.

To same effect in People v. Auburn etc. Co., 122 Cal. 340, holding rate determinable by supervisors in case of extension under code provisions; Virginia etc. Co. v. People, 22 Colo. 435, discussing effect of such expiration and decreeing dissolution under facts; State v. Road Co., 138 Mo. 345, construing local statutes, and denying right to collect tolls after expiration of franchise. Distinguished in Sears v. Tuolumne Co., 132 Cal. 170, noted under People v. Davidson, 79 Cal. 166.

83 Cal. 240-246. MULLER v. SOUTHERN PACIFIC ETC. CO. Eminent Domain.-Owner of lot abutting on street may recover damages thereto by reason of part of street taken for railroad, p. 243. Distinguished in Montgomery v. Railway Co., 104 Cal. 196, 43 Am. St. Rep. 97, denying right to bring ejectment when street taken by municipal permission.

Value.-Evidence is admissible of bona fide offers for property condemned, p. 243.

Distinguished and criticised in Santa Ana v. Harlin, 99 Cal. 544, 545, holding such evidence inadmissible unless confined to period near suit. Denied in Sharp v. United States, 191 U. S. 350, holding contra.

Eminent Domain.-Damages caused by railroad condemnation cannot be offset by benefits to remainder of property, p. 245.

To same effect in San Bernardino etc. Co. v. Haven, 94 Cal. 492, holding certain evidence as to such benefit inadmissible; Lewis v. Seattle, 5 Wash. 750, but holding provision as to exclusion of benefits not to apply to municipal condemnation; Enoch v. Railway Co., 6 Wash. 401, as to railroad condemnation, construing local statutes. Note citations: Currie v. Railroad Co., 19 Am. St. Rep. 459, 460, on general subject. Distinguished in Abbott v. Railroad Co., 109 Cal. 286, discussing admis sibility of certain evidence as to value.

83 Cal. 246-264. FARNUM v. PHOENIX INS. CO.; 17 Am. St Rep. 233 Insurance.-Condition that policy should not take effect before pre. Notes Cal. Rep.-247.

mium paid is waived by its delivery to insurer on express or implied credit, p. 252.

To same effect in Griffith v. Ins. Co., 101 Cal. 636, 640, 40 Am. St. Rep. 99, 102, further holding policy not forfeited by nonpayment at maturity of note taken for premium; Berliner v. Insurance Co., 121 Cal. 453, applying principal to life insurance policy. Cited in Breedlove v. Norwich etc. Soc., 124 Cal. 169, noted under Kruger v. Insurance Co., 72 Cal. 95; Thum v. Wostenholme, 21 Utah, 460, holding acceptance of note a sufficient waiver of prepayment; Wytheville etc. Co. v. Tirger, 90 Va. 280, citing main case; also at p. 283, on point that company may be estopped from denying agent's power to waive conditions. Note citations: See notes cited under Wheaton v. Insurance Co., 76 Cal. 415, on various topics in this case.

Delivery of Policy containing recital of payment of premium binds insurer in absence of fraud, p. 255.

Cited in Kendrick v. Life Ins. Co., 124 N. C. 318, 70 Am. St. Rep. 594 (and note, 597), but stating rule where recital is mere rebuttal receipt.

Notice of Cancellation of Policy for nonpayment of premium must be proved to have been given, p. 256.

To same effect in American etc. Co. v. Brooks, 83 Md. 35, holding mailing of notice not shown; German etc. Co. v. Rounds, 35 Neb. 760, on point that policy remains in force unless return premium tendered; and see, on same point, Wilson v. Assurance Co., 51 S. Car. 548.

Insurance.-Local Agent is presumed to have powers coextensive with business entrusted to his care, p. 257.

To same effect in Phenix etc. Co. v. Stocks, 149 Ill. 336, as to power to receive notice of demand for arbitration; but see Reed v. Insurance Co., 17 R. I. 788, holding notice to agent nugatory. Distinguished in Westerfeld v. New York etc. Co., 129 Cal. 78, holding company not bound by agent's delivery of policy before premium is paid.

Power of Agent is question of fact, p. 261.

To same effect in Bergtholdt v. Porter, 114 Cal. 688, extending rule to existence of agency; Ruthven Bros. v. Insurance Co., 102 Iowa, 558, 559, as to power of insurance general manager to waive proof of loss.

Parol Waiver of condition in policy is valid, irrespective of stipulation to contrary, p. 261.

To same effect in Burnham v. Insurance Co., 63 Mo. App. 88, as approving 39 Minn. 129. Cited in Northern etc. Co. v. Grand View etc. Assn., 101 Fed. 80, 81, as to conditions concerning concurrent insur

ance.

Insurance. Submission to Arbitration is not permitted unless parties have failed to agree, p. 262.

To same effect in Hickerson v. Insurance Co., 96 Tenn. 197, citing main case also, p. 200, on point that submission by insurer is waiver of other objections to liability; and see, on last point, Vangindertaelen v. Insurance Co., 82 Wis. 119, 33 Am. St. Rep. 31 (and note, 32), applying rule to waiver of defects in form of proofs of loss; Kahn v. Insurance Co., 4 Wyo. 450, 62 Am. St. Rep. 59, citing main case, also, on other points relating to agent's power of waiver, at pp. 455, 462, 463, 467, 62 Am. St. Rep. 64-74.

83 Cal. 270-274. MOORE v. HOPKINS; 17 Am. St. Rep. 248.

Abatement.-Another Action Pending cannot be urged when judgment of dismissal of such action filed pending trial of second, p. 271.

To same effect in California etc. Society v. Harris, 111 Cal. 137, applying rule to filing of articles of incorporation under section 299 Civil Code, before failure pleaded in abatement; Evans v. Johnston, 115 Cal. 183, but ruling aliter where no judgment entered on dismissal. Cited in Balfour etc. Co. v. Woodworth, 124 Cal. 174, as to similar dismissal; Cook v. Ceas, 143 Cal. 235, noted under Dyer v. Scalamini, 69 Cal. 637.

Recitals in Certificate of Acknowledgment may be contradicted by any evidence, direct or indirect, p. 272.

See note to Le Mesnager v. Hamilton, 40 Am. St. Rep. 88, and American etc. Co. v. Thornton, 54 Id. 154, on general subject.

General Citation.-Heaton v. Norton Co. State Bank, 59 Kans. 288.

83 Cal. 274-279. CARTER v. McQUADE.

Wife's Separate Property includes that deeded her by husband whether his or community, p. 278.

To same effect in Ions v. Harbison, 112 Cal. 266, and Tillaux v. Tillaux, 115 Cal. 671. 672, cited under Burkett v. Burkett, 78 Cal. 310; Hamilton v. Hubbard, 134 Cal. 606, and Alferitz v. Arrivillaga, 143 Cal. 649, noted under Burkett v. Burkett, 78 Cal. 310.

Settlement of Probate Account is conclusive except as to those under disability, p. 294.

To same effect in Estate of Fernandez, 119 Cal. 582, as to payment of claims without order. Note citations: Price v. Springfield etc. Assn., 20 Am. St. Rep. 601, on probate courts.

Probate Claims.-Entire estate assets are applicable to pay its debts, p. 295.

Cited in Price v. Ward, 25 Nev. 220 (dissenting opinion), discussing administrator's right to sue for waste.

Mining Locations.-Boundaries must be marked upon the ground, p. 298.

Overruled as dictum in Kern Oil Co. v. Crawford, 143 Cal. 305.

Mining Claim.-Findings in action on adverse claim of full compliance with laws is conclusion of law and insufficient, p. 299.

To same effect in McCowan v. Maclay, 16 Mont. 239, as to similar statement in affidavit of location, citing main case, also, (p. 235), as to character of said action.

Action on Adverse Claim.-Pleadings of parties must show fully their respective rights to patent for property, p. 299.

Approved in Cronin v. Bear Creek etc. M. Co., 3 Idaho, 617, complaint under Revised Statutes of the United States, section 2326, to contest application for mining patent must show that plaintiff filed adverse possession within period prescribed therein and brought action within time allowed by section 2326. Distinguished in Donahue v. Johnson, 9 Wash. 192, holding such allegations necessary only in such action.

Mining Patent is obtainable by continued adverse possession, under section 2332, Revised Statutes, without previous location, p. 301.

To same effect in Altoona etc. Co. v. Integral etc. Co., 114 Cal. 105, also (p. 101), overruling main case as to nature of action to quiet title to mining claim. Approved in Lavagnino v. Uhlig, 26 Utah, 25, under 2. Compiled Laws, section 2997, subdivision 2, mining claims are real property and pass by deed.

Mining Claim.-Alien cannot obtain patent for as against qualified adverse claimant, p. 302.

To same effect in Bogan v. Mortgage Co., 63 Fed. Rep. 197, but holding objection not sustainable by government after its waiver of such disability.

83 Cal. 303-319. IN RE LUCE.

Disbarment of Attorney will be refused for misconduct by partner in which he did not participate, p. 305.

See note to In re Philbrook, 45 Am. St. Rep. 78, on disbarment. Fraudulent Conveyance.-Preference of creditor is valid if in good faith, p. 309.

To same effect in Matter of Muller, 118 Cal. 436, sustaining transfer of stock as preference.

83 Cal. 319-321. BUNNEL v. STOCKTON.

Statement on New Trial cannot be considered on motion or appeal when not settled in due time, p. 320.

To same effect in Stonesifer v. Armstrong, 86 Cal. 595, further holding excusable neglect not determinable under mandamus to compel settlement; Visher v. Smith, 92 Cal. 63, holding settlement properly denied when presentation made too late; Henry v. Merguire, 106 Cal. 147, reversing order granting new trial based on such statement; and see concurring opinion in Banta v. Siller, 121 Cal. 419, discussing Stonesifer v. Kilburn, 94 Cal. 33; Wheeler v. Karnes, 125 Cal. 53, noted under Higgins v. Mahoney, 50 Cal. 445. Distinguished under local statutes in Johnson v. Railroad Co., 1 N. Dak. 357, allowing settlement after expiration of statutory time.

Extension of Time is void if beyond the thirty days allowed by the statute, p. 320.

Cited in Cameron v. Arcata etc. Co., 129 Cal. 282, noted under Bryan ▼. Maume, 28 Cal. 238; Freese v. Freese, 134 Cal. 49, as to extension for preparation of new trial statement.

83 Cal. 322-333. IN RE STEVENS; 17 Am. St. Rep. 252.

Amount of Family Allowance should not be confined to widow's mere support, p. 325.

To same effect in In re Lux, 100 Cal. 605 (cited in S. C. 114 Cal. 82), holding fixing of such amount to be in discretion of court.

Order of Family Allowance is final unless appealed from, p. 326. Cited in In re Kingsley, 93 Cal. 577, but declining to criticise case on account of facts shown; Estate of Nolan, 145 Cal. 561, 562, where family allowance made to one claiming as widow, who was also administratrix, and order not appealed from, order cannot be attacked on settlement of administratrix's accounts though decree of partial distribution determined she was not widow.

Pretermitted Child.-Will alone must be looked to to discover testator's intent in omission, p. 328.

To same effect in Rhoton v. Blevin, 99 Cal. 648, holding intention sufficiently shown thereby; In re Salmon, 107 Cal. 616, 617, 48 Am. St. Rep. 165, 166, rejecting extrinsic parol evidence therefor and further holding such intent not shown by will; Estate of Ross, 140 Cal. 291, holding claimant entitled to share as such child; Estate of Smith, 145 Cal. 123, fact that testatrix was soon to give birth to child when will made is not sufficient proof of obvious intention that legacy of annuity given to mother should not contribute to legal inheritance of post testamentary child; Bower v. Bower, 5 Wash. 228, rejecting similar parol evidence under local statute; Boman v. Boman, 49 Fed. Rep. 332, construing will and holding children pretermitted thereunder. Note citations: Estate of Jacobs, 23 Am. St. Rep. 232, on disinheritance; Worley v. Taylor, 28 Id. 778; Estate of Stebbins, 34 Id. 350, on pretermitted heirs.