Cited to same effect in Swann v. Jenkins, 82 Ala. 483, discussing value thereof in construction.

52 Cal. 561-565. McCARTHY v. POPE.

Statute of Frauds does not apply to agreement by one who has contracted by parol to buy lands, to allow another to purchase in his stead when deed is made to latter, p. 565.

Cited to same effect in Byers v. Locke, 93 Cal. 496, 27 Am. St. Rep. 215, holding agreement stated not to be within statute as relating to sale of real property; dissenting opinion in Kelly v. Ruble, 11 Oreg. 114, discussing right to vendor's lien of holders of parol contracts.

52 Cal. 565-568. BILLINGS v. DREW.

Fraudulent Conveyances.-Instruction held erroneous under pleadings, p. 567.

Note citation: Clark v. Foxcroft, 20 Am. Dec. 315, on general subject.

Inconsistent Defenses.—Answer may in special defense admit allegations previously denied, p. 568.

Cited to same effect in Banta v. Siller, 121 Cal. 418, noted under Bell v. Brown, 22 Cal. 678; Botto v. Vandament, 67 Cal. 334, holding judgment on pleadings improper where such answer filed; McDonald v. Southern California etc. Co., 101 Cal. 213, holding such admissions not evidence against defendants on issues tendered on other defenses; and Miles v. Woodward, 115 Cal. 316, on same point; Meyers v. Merillion. 118 Cal. 359, as to denials in answer and admissions in cross-complaint, and holding demurrer to answer based on such inconsistency improperly sustained; Lake Shore etc. Co. v. Warren, 3 Wyo. 137, holding denials not qualified by subsequent admissions in other pleas. Distinguished in McLaughlin v. Alexander, 2 S. Dak. 236, holding admissions in one defense available as to denials in another, where not made unavoidably for presentation of such defenses.

52 Cal. 568-577. ESTATE OF MCCAUSLAND.

"Claim or Demand" against Estate within section 1880 of the Code of Civil Procedure does not include claim for family allowance, p. 576. Cited to same effect in Stuttmeister v. Superior Court, 72 Cal. 489, as to demand of attorney for services rendered administrator, construing section 963 of the Code of Civil Procedure; Meyers v. Reinstein, 67 Cal. 92, admitting testimony of cestui in action to enforce resulting trust against executors of deceased trustee; Booth v. Pendola, 88 Cal. 43, ruling similarly as to action to enforce mechanic's lien; Verdier v. Roach, 96 Cal. 472, holding, however, covenant of indemnity a contingent claim to be presented, although no breach had yet occurred; In re Welch, 106

Cal. 431, as to arrearage of family allowance, and discussing power of special administrator to pay, as being claim or debt against estate: Toulouse v. Burkett, 2 Idaho, 176, as to action to set aside deed and foreclose vendor's lien. Cited, also, in Purdin v. Archer, 4 S. Dak. 57, on point that mortgagee's claim to possession under chattel mortgage need not be presented. Note citations: Harris v. Bank, 1 Am. St. Rep. 211, on general subject.

Marriage Held Established by contract in praesenti and per verba de futuro cum copula, p. 577.

Cited in Estate of Richards, 133 Cal. 527, holding validity of marriage established under facts stated, and code sections on subject not retroactive; White v. White, 82 Cal. 433, on point that it may be established in either manner, and holding marriage shown by facts; Mathewson v. Phoenix etc. Foundry, 20 Fed. Rep. 284, holding, further, common-law marriage valid in state having statutory regulations, unless prohibited thereby. Note citations: Cheney v. Arnold, 69 Am. Dec. 615, on general subject.

52 Cal. 577-578. PEOPLE v. GREENE.

Summons.-Default judgment will be reversed where summons radically defective, p. 578.

Cited to same effect in Atchison etc. Co. v. Nicholls, 8 Colo. 190, as to defect in stating cause of action. Distinguished in People v. Dodge, 104 Cal. 491, holding such judgment not attackable collaterally where summons irregular.

52 Cal. 579-586. HAGER v. SPECT.

Deed under Power of Attorney conveys no title unless authority to make it is shown, p. 581.

Cited to same effect in Territory v. Klee, 1 Wash. 187, holding deed invalid under facts.

Recording Act does not apply to instrument made by stranger to the title, without authority, p. 584.

Cited in Shackleton v. Church, 25 Mont. 425, as to mortgage executed by officers of corporation as individuals; Murray v. Montana Lumber etc. Co., 25 Mont. 18. Distinguished in Grant v. Cornell, 147 Cal. 567, where certificate of sale to state contained correct description of land, and was not subject to defects alleged in assessment, its record imparted constructive notice to purchaser of land.

52 Cal. 586-590. GREEN v. CAMPBELL.

Factor has Ostensible Authority to deal with property as his own as to parties having no knowledge of true ownership, p. 589.

Cited to same effect in Hayes v. Campbell, 55 Cal. 424, 36 Am. Rep. 45,

as to power to subject property to maritime lien for freight; and see Dodge v. Meyer, 61 Cal. 430, arising from same transactions, and discussing rights of transferee of factor's bills of lading.

52 Cal. 590-598. COX v. MCLAUGHLIN. S. C. 63 Cal. 196, 205; 76 Cal. 60, 62, 9 Am. St. Rep. 164.

Contract-Prevention.-Failure to pay installments for work as due is not such prevention as will be equivalent to performance, p. 596.

Distinguished in San Francisco etc. Co. v. Dumbarton etc. Co., 119 Cal. 282, holding such failure to justify contractor in refusing to proceed and authorizing action for quantum meruit for work already done.

52 Cal. 602-605. MEEKS v. SOUTHERN PACIFIC RAILROAD COMPANY. S. C. 56 Cal. 517; 38 Am. Rep. 67.

Contributory Negligence is good defense even if defendant has failed to comply with statutory regulations as to running its trains, p. 604. Cited to same effect in Orcutt v. Pacific Coast etc. Co., 85 Cal. 298, as to failure to signal at crossings, but holding contributory negligence not shown; Hager v. Southern Pacific Co., 98 Cal. 311, as to like failure, but holding contributory negligence shown. Cited, also, in Fink v. Missouri etc. Co., 10 Mo. App. 75, and Porter v. Brewing Assn., 24 Mo. App. 8, as holding that children of tender years are conclusively presumed not to be guilty of such negligence; Frick v. Railway Company, 75 Mo. 613, as holding that such negligence was imputed to infant, as matter of law, in main case; Murray v. Railroad Co., 93 N. C. 95, holding child of eight years so guilty under facts; and to same effect in Norfolk etc. Co. v. Dunnaway's Adm., 93 Va. 39, holding defendant not liable in case of child of eleven on facts similar to those of main case. Note citation: Freer v. Cameron, 55 Am. Dec. 175, on general subject.

Contributory Negligence of Parents is bar to action for injury to infant child, p. 604.

Cited to same effect in Daly v. Hinz, 113 Cal. 370, on point that question of such negligence in allowing child to be unattended on street is question for jury; Air Line etc. Co. v. Gravitt, 93 Ga. 374, 44 Am. St. Rep. 149, as to father's negligence, but holding this no bar to action by mother; and Wymore v. Mahaska Co., 78 Iowa, 398, 16 Am. St. Rep. 450, making same distinction as to action by administrator who was neither of the parents; Fitzgerald v. Railway Co., 29 Minn. 339, 43 Am. Rep. 214. Denied in Berry v. Lake Erie etc. Co., 70 Fed. Rep. 682, as being obsolete rule. Note citation: Freer v. Cameron, 55 Am. Dec. 177, on general subject. Denied in Chicago etc. Co. v. Kowalski, 92 Fed. 312, following decisions of other states.

General Citation.-Crawford v. Southern R. Co., 106 Ga. 878.

52 Cal. 605-606. PULLIAM v. CHEROKEE FLAT BLUE GRAVEL COMPANY.

Action to Quiet Title.-Defendant's possession is not shown by application to purchase land from United States, p. 606.

Distinguished in Goodwin v. McCabe, 75 Cal. 588, admitting swamp land certificates to show color of title in entry, in action of ejectment.

52 Cal. 606-611. EX PARTE FRANK. 28 Am. Rep. 642.

License of Occupations.—Power of city to "license and regulate” includes power to levy and collect license tax, p. 609.

Cited to same effect in Ex parte Braun, 141 Cal. 206, sustaining license tax under freeholders' charter; San Jose v. San Jose etc. Co., 53 Cal. 481, as to street railroad, although line extended beyond city limits. Note citation: Oil City v. Oil City etc. Co., 31 Am. St. Rep. 773, on general subject.

Requisites of municipal ordinances as to validity, stated, p. 609. Cited to same effect in South Pasadena v. Terminal etc. Co., 109 Cal. 321, holding void an ordinance regulating rates of transportation of street railway connecting city with another; Champer v. Greencastle, 138 Ind. 349, 46 Am. St. Rep. 396, holding unreasonable an ordinance regulating place of sale of liquors; Swindell v. State, 143 Ind. 166, on point that statute must be followed in enactment of ordinances; Meyers v. Railroad Company, 57 Iowa, 558, 42 Am. Rep. 52, holding unreasonable an ordinance regulating speed of trains; Des Moines etc. Co. v. Des Moines, 90 Iowa, 772, ruling similarly, as to ordinance regulating method of constructing sewers; Campbell v. Cincinnati, 49 Ohio St. 474, on point that provision as to reading of ordinance is mandatory and failure to pursue it avoids the ordinance; Kirkham v. Russell, 76 Va. 965, holding roid, as unreasonable, ordinance as to elections; Laundry Ordinance Case, 7 Saw. 531, 13 Fed. Rep. 232, ruling similarly as to ordinance directed against Chinese laundries.

Municipal License Ordinance will not be declared invalid unless clearly in violation of law, p. 610.

Cited to same effect in Ex parte Mirande, 73 Cal. 373, sustaining license for grazing and herding sheep, and discussing grounds of invalidity gerenally.

Question of validity of municipal ordinance is one of law for court, p.

610.

Cited to same effect in Merced County v. Fleming, 111 Cal. 51, excluding evidence as to effect of ordinance to show its unreasonableness; Greensboro v. Ehrenreich, 80 Ala. 582, 60 Am. Rep. 131 (cited in note to Train v. Boston etc. Co., 59 Am. Rep. 117), holding ordinance void prohibiting sale of bedclothes, et cetera.

Municipal Ordinance.-Discrimination between merchants in same place will render invalid, p. 610.

Cited in dissenting opinion in Rode v. Siebe, 119 Cal. 524, discussing constitutionality of sections 3820, 3824, Political Code, holding ordi nances void under facts, in Cairo v. Feuchter, 159 Ill. 162, as to license on wholesale liquor dealers; Graffty v. Rushville, 107 Ind. 510, 57 Am. Rep. 135, as to nonresident hawkers and peddlers; Citizens etc. Co. v. Elwood, 114 Ind. 338, as to grant to one company of exclusive right to use streets; Indianapolis v. Bieler, 138 Ind. 37, as to exemption of wholesale dealers from tax; Simrall v. Covington, 90 Ky. 450, 29 Am. St. Rep. 402, as to discrimination against nonresident insurance companies' agents; Sipe v. Murphy, 49 Ohio St. 547, as to ordinance imposing special auctioneer's license where goods sold were brought from another city. Distinguished in In re Zhizhuzza, 147 Cal. 333, upholding Oakland ordinance providing for exclusive removal of garbage by city or its employees, to be consumed in city crematory; Ex parte Haskell, 112 Cal. 420, holding ordinance not void, though discriminating between traveling salesmen and those having fixed local places of business; note citation: Robinson v. Mayor, 34 Am. Dec. 637 o general subject.

Void Ordinance.-Person convicted for violation of will be discharged on habeas corpus, p. 611.

Cited to same effect in dissenting opinion in Ex parte Henshaw, 73 Cal. 509, as to imprisonment for contempt under void judgment.

52 Cal. 611-616. DAVIS v. RUSSELL. 28 Am. Rep. 647.

Warehouse Receipt.-Assignment of operates as transfer of title to goods covered, p. 615.

Cited to same effect in Cavallaro v. Texas etc. Co., 110 Cal. 359, 52 Am. St. Rep. 102, discussing negotiability thereof; Durr v. Hervey, 44 Ark. 307, 51 Am. Rep. 597, sustaining transferee's power to pledge for own advances; Conrad v. Fisher, 37 Mo. App. 368, holding, further, attornment by warehouseman unnecessary. Note citations: Rice v. Cutler, 84 Am. Dec. 754, on general subject; Griggs v. Day, 32 Am. St. Rep. 715, on rights of holders of collaterals.

Factor's Acts-Pledge.-Factor who is assignee of warehouse re ceipts may pledge goods, p. 616.

Note citations: Bigelow v. Walker, 58 Am. Dec. 166, on general sub ject.

Pre-existing debt is sufficient as consideration, p. 616.

Cited to same effect in Stroud v. Thomas, 139 Cal. 276, noted under Frey v. Clifford. 44 Cal. 342; Sackett v. Johnson, 54 Cal. 109, as to consideration for indorsement of note. Note citations: Bank v. Strauss, 14 Am. St. Rep. 583, on right of collecting bank over paper sent for collection; Griggs v. Day, 32 Am. St. Rep. 713, on rights over collateral security.

General Citation.-Rock Springs Nat. Bank 7. Luman, 6 Wyo. 151.