NEW TRIAL (Continued).

6. MOTION FOR NEW TRIAL-DISCRETION OF COURT.-It is within the discretion of the trial court to determine that facts stated in affidavits of newly discovered evidence were not sufficient to warrant granting of a new trial, and its decision will not be disturbed on appeal where the circumstances are such as in the case at bar. (Id.)

7. APPEAL DISCRETION OF TRIAL COURT.-An order granting a new trial will not be disturbed upon appeal save upon a showing of an abuse of the discretion vested in the trial court. (Meinberg v. Jordan, 760.)

8. AFFIRMANCE OF ORDER - MOTION UPON SEVERAL GROUNDS.-An order granting a new trial must be affirmed without regard to the ground upon which it is specifically based if it could be rightfully granted upon any of the grounds upon which the motion was made, subject, however, to the exception that in passing upon the correctness of the order the appellate court may not consider the insufficiency of the evidence when the lower court by direct language expressly excludes such ground as a basis for its order. (Id.)

9. EXCESSIVE DAMAGES - IMPLICATION OF INSUFFICIENCY OF EviDENCE. An order granting a new trial in an action for damages for personal injuries upon the sole ground that the damages awarded to the plaintiff are excessive does not fall within the exception to the rule, but implies that the motion was granted upon a consideration of the insufficiency of the evidence to support the verdict. (Id.)

10. INSUFFICIENCY OF EVIDENCE-QUESTION FOR TRIAL COURT.-Upon a motion for a new trial in an action for damages for personal injuries, the probative force and effect of the evidence as to the nature and the extent of the injuries, and the damages resulting therefrom, is for the determination of the trial court, notwithstanding there is no conflict in the evidence. (Id.)

11. ACTION FOR PERSONAL INJURIES

ASSAULT AND BATTERY- ExCESSIVE DAMAGES-ORDER GRANTING NEW TRIAL-DISCRETION NOT ABUSED. In this action for damages for personal injuries sustained as the result of an assault and battery, it is held that no abuse of discretion was committed in granting the motion for a new trial on the sole ground that the verdict in the sum of $750 was excessive. (Id.)

See Agency; Appeal, 14, 15, 18; Criminal Law, 99, 109, 130;
Negligence, 10, 11; Practice, 2.

NONSUIT. See Practice, 1.

NOVATION.

1. ORDER FOR PAYMENT OF MONEY-EVIDENCE-CONSTRUCTION OF INSTRUMENT.—In this action to recover upon a written order calling for the payment of various sums of money upon different dates, which was drawn upon the defendant by a sales agent employed by it to make disposition of certain lands, and which was accepted by the plaintiff in payment of certain advances made by it to such agent to make such sales, it is held that, in the light of the evidence, the dates set after the several installments which were to be paid by the terms of the accepted order referred, not to the times when commissions would be due and payable to such agent from the defendant, but that they referred to the dates whereon the several sums set before them would be due and payable by the defendant to the plaintiff without respect to when or whether any particular amount of commissions was then earned or payable. (Sprague Canning Machinery Co. v. Western Ranching Corp., 374.)

2. EFFECT OF ORDER-NOVATION.-It is also held that on the date of the drawing and acceptance of the order a novation was agreed to and accomplished between the parties thereto, and that whatever contingencies there might be as to the amount of commissions then or thereafter to be chargeable to the defendant as between itself and such agent, were assumed by the defendant, and were not to affect or qualify the terms of its said acceptance or the amounts to become due the plaintiff thereon. (Id.)

OFFICE AND OFFICERS.

1. PROBATION OFFICERS-POWER OF APPOINTMENT-COUNTY CHARTER.— Where a county charter adopted pursuant to the amendment of 1911 to section 72 of article XI of the constitution authorizes the board of supervisors of the county to make provision for the appointment of probation officers, and provision is so made, the general laws of the state are superseded. (Anderson v. Lewis, 24.) 2. ORDINANCE CREATING PROBATION OFFICES-SILENCE AS TO MANNER OF APPOINTMENT-GENERAL LAW APPLICABLE.-Where, however, the board of supervisors, in enacting an ordinance providing for probation offices and fixing the compensation of the officers, makes no mention of the manner in which the appointments shall be made, the general laws of the state govern the matter. (Id.)

3. ASSISTANT PROBATION OFFICER INVALID APPOINTMENT.-An assistant county probation officer appointed by the judge of the juvenile court instead of by the chief probation officer of the county is not a legally appointed officer, where such county had adopted a freeholders' charter and provided therein that its board of supervisors might make provision for the appointment of such officers, notwithstanding that such board, in enacting an ordinance providing for such officers, failed to make any mention of the manner of their appointment. (Id.)

OFFICE AND OFFICERS (Continued).

4. ACTION TO COMPEL SHERIFF TO RETURN FEES TO COUNTY-PLEADING SUFFICIENCY OF PETITION.-In a proceeding for a writ of mandamus to compel the sheriff of Los Angeles County to pay into the county treasury all fees collected by him as such sheriff between certain dates, for the performance of official duties pertaining to that office, an allegation in the petition that the respondent as sheriff, between the dates specified, "collected and received and appropriated to his own use, the sum of $3,000.00 as fees belonging to Los Angeles County for the performance of his services as sheriff of Los Angeles County during said time,” is sufficient as against a general demurrer. (Keith v. Hammel, 131.)

5. CONDUCT OF ACTION FOR COUNTY-CONTROL BY PUBLIC OFFICERS.The general effect of the provisions of the charter of Los Angeles County and of the statutes is, not only that the conduct of actions in which the county is a party is committed to the charge and control of public officers, but it is the intention (in harmony with longestablished principles) that the county shall be a party to actions and proceedings wherein the county is concerned. (Id.) 6. ACTION BY TAXPAYER-WHEN UNAUTHORIZED.-A resident property owner and taxpayer in the county of Los Angeles has no right to maintain an action to compel the sheriff of the county to pay into the county treasury certain fees collected and alleged to have been wrongfully appropriated by him, in the absence of a showing that the proper county officers have refused to commence or prosecute such a proceeding for the protection of the county's interest. (Id.) 7. SAN FRANCISCO CHARTER-MISCONDUCT OF FIRE COMMISSIONERS-REMOVAL OF CHIEF ENGINEER WITHOUT TRIAL-REMOVAL OF BOARD BY MAYOR.-Under the provisions of section 2 of chapter 2 of article IX of the charter of the city and county of San Francisco, which declares that no officer, member, or employee of the fire department should be removed from office except for cause and after trial, the board of fire commissioners have no right to remove the chief engineer of the department without assigning a cause therefor and without trial, and where they do so after being so advised by the city attorney, and after being notified to desist by the mayor, their action affords sufficient ground for their removal from office. (Spader v. Rolph, 774.)

8. VOID PROVISION OF CHARTER-EFFECT OF CONSTITUTIONAL AMENDMENT. While, at the time of the adoption of the charter of the city and county of San Francisco in the year 1900, the provision of section 2 of chapter 2 of article IX thereof was void by reason of its conflict with section 16 of article XX of the constitution, such void provision was effectively validated by the amendment of November 3, 1914, to section 8% of article XI of the constitution, giving municipal corporations governed by charters the authority to provide for the tenure of office and removal of muni

OFFICE AND OFFICERS (Continued).

cipal employees, and no change in such charter provision or reenactment was necessary in order to give it effect. (Id.)

See County.

OPTION. See Broker, 1; Vendor and Vendee, 1.

PARDON. See Attorney at Law, 1, 2; Criminal Law, 13.

PARENT AND CHILD.

1. CONVICTION FOR NONSUPPORT-PROOF OF ABILITY.-In order to support a conviction of a parent for failure to support his minor children, it is essential that proof of his ability so to do be made, as inability without fault is a "lawful excuse," within the meaning of that phrase as used in section 270 of the Penal Code. (People v. Forester, 460.)

2. INABILITY TO SUPPORT-EVIDENCE-BUSINESS REVERSES AND PERSONAL INJURY.-Inability due in part to an injury to the hand of a skilled dentist and in part to business reverses, without any ground for inference that his financial embarrassment was the result of artifice or any design to deprive his children of support, is a sufficient showing of lawful excuse for failure to discharge such parental duty. (Id.)

See Criminal Law, 17, 18, 42-45.

PARTITION.

1. EFFECT OF DECREE.-A decree or judgment in partition has no other effect than to sever the unity of possession, and does not vest in either of the cotenants any new or additional title. (Potrero Nuevo Land Co. v. All Persons, 743.)

2. LEASEHOLD INTERESTS IN BEACH AND WATER LOTS OF SAN FRANCISCO-PARTITION SALE-INTERESTS ACQUIRED BY PURCHASERS.Purchasers at a partition sale of leasehold interests in "beach and water lots" situated in the city and county of San Francisco acquire the interests of such partitioners at the time of sale and nothing more, and the subsequent purchase by one of such purchasers of the reversionary interest of the state in such lots does not inure to the benefit of his copurchasers. (Id.)

3. TITLE OF PURCHASER UPON PARTITION SALE. The sale under a partition decree is a judicial sale, and the rule in execution sales that the purchaser takes the precise interest of the defendant and that after-acquired title by the seller does not pass to the purchaser is applicable thereto. (Id.)

PARTITION WALL.

1. LOCATION-SUFFICIENCY OF EVIDENCE.-In this action by the owners of the south half of a city lot and of the remainder in fee

PARTITION WALL (Continued).

of the north half against the life tenant of the latter half to compel the removal of a partition wall which the defendant at the time of the commencement of the action had commenced to construct in the building which covered the entire frontage, it is held that the evidence was sufficient to establish the fact that a portion of the partition wall was located upon the plaintiff's side of the dividing line. (Taft v. Washington, 197.)

2. REMOVAL OF WALL-COMPLETION PRIOR TO SERVICE OF RESTRAINING ORDER-POWER OF COURT.-In such an action the court has power to compel the removal of the partition wall, notwithstanding the wall was completed before the service of any restraining order. (Id.)

PARTNERSHIP.

1. PURCHASE AND SALE OF OIL LANDS — NATURE OF TRANSACTION— CONFLICT OF EVIDENCE-FINDINGS CONCLUSIVE.-In this action to recover profits alleged to have accrued on account of a joint enterprise entered into between appellant and respondent with respect to the purchase and sale of certain oil-producing lands, it is held that the record presents a state of conflicting evidence as to the nature of the agreement between the parties upon which the findings against the claim of appellant of a partnership are conclusive. (Stroud v. Fairbanks, 5.)

2. CERTIFICATE OF PARTNERSHIP-USE OF INITIALS.-A certificate of copartnership which sets forth the initials of the respective partners' given names instead of their names in full is sufficient. (Hill v. Nerle, 473.)

See Banks, 4, 5.

PAYMENT. See Fromissory Note, 7, 8; Sale, 15.

PERJURY. See Criminal Law, 129–131.

PHYSICIAN AND SURGEON. See Negligence, 3-5.

PLACE OF TRIAL.

1. RESCISSION OF CONTRACT OF SALE OF REAL PROPERTY-FRAUDRECOVERY OF MONEY PAID.-An action to rescind a contract for the sale of real property and to recover the money paid thereunder on the ground of fraud is not an action for the determination of some right or interest in real estate within the meaning of section 392 of the Code of Civil Procedure, and is properly transferred to the county of the residence of the defendant upon motion therefor duly made. (Terry v. Rivergarden Farms Co., 59.)

2. NATURE OF ACTION-RELIEF UPON DEFAULT.-The nature of an action is to be determined from the allegations of the complaint