tiff alleged and the court found that the notice was served "upon the person in charge and in possession of said premises and orchard for the defendant as his agent." It is claimed that the evidence was insufficient to justify this finding. The proof showed that the notice was served upon Reginald Brinsmead, who was living in a residence upon the property in question. The owner of the property was living in England. C. White Mortimer, living in Los Angeles, had charge of the property, and a Mr. J. A. Thompson cultivated and cared for the property. Mr. Brinsmead, upon whom the notice was served, had lived upon the property for years while he was the owner thereof, and remained in the same house after transferring the property to the defendant, his mother. No one else lived upon the property or was in visible possession thereof. The defendant claims that the decision in San Bernardino v. Stewart, 173 Cal. 236, [159 Pac. 717], controls. In that case, however, the owner was living on the property and was there at the time the notice was served. Here the owner was living in England and no one was on the property at the time of the service other than the party served. [1] The evidence sustained the finding of the court.

Appellant further claims that because the inspector only inspected one-eighth of the trees that it must be assumed that the other trees were not infected, and that no recovery should be had thereon. This point hardly merits consideration, particularly in view of the testimony that the orchard was generally infected.

The judgment is affirmed.

Lennon, J., and Melvin, J., concurred.

[L. A. No. 4727. Department One.-February 28, 1919.]

BYRON M. SPENCER et al., Respondents, v. CITY OF LOS ANGELES (a Municipal Corporation), et al., Appellants.

[1] TAXATION

- PAYMENT UNDER PROTEST-RECOVERY-DURESS.-The general rule is that money paid to an officer upon taxes or assessments which are alleged to be illegal and void is not deemed in law to have been paid under compulsion, so as to allow a recovery thereof where there was nothing to induce or compel payment except the mere threat by the officer of a sale of property or a suit for the recovery thereof if payment was not made. There must have been in addition some coercion or compulsion which amounted to a duress of the person or property of the payer.

[2] STREET LAW-VOID STREET OPENING ASSESSMENT

- PAYMENT UNDER PROTEST-RECOVERY FROM CITY-ACT OF 1903-DEED PRIMA FACIE EVIDENCE OF TITLE.-In view of the provision of the Street Opening Act of 1903 declaring that the deed of the purchaser at the sale of property for a delinquent assessment shall be prima facie evidence of the title of the grantee (Stats. 1903, p. 383), moneys paid under protest upon assessments for the opening of a street after published notice of the sale, but before the sale, may be subsequently recovered in an action against the city, where the assessment and all proceedings leading up to it were declared void because of a latent defect in the description of the boundaries of the district formed for the purposes of the assessment.

[3] ID. LATENT DEFECT IN STREET PROCEEDINGS-THREATENED SALERIGHT TO MAKE PAYMENT UNDER PROTEST.-Where the invalidity of a street opening proceeding is due to a latent defect in the description of the boundaries of the district formed for the purposes of the assessment, such defect, therefore, not appearing on the face of the proceedings, the property owner would in any litigation with the grantee be compelled to establish the facts showing the defect, which brings the case within the rule that his property is imperiled by the threatened sale and that he may pay the assessment under protest and subsequently recover it in an action.

[4] ID.-PAYMENT UNDER PROTEST - SUFFICIENCY OF FINDING. - In an action to recover money paid under protest upon a street opening assessment under the act of 1903, a finding, with respect to the protest, that the owners paid their respective assessments "under protest, and did, at the time of said payment, then and there reserve to themselves and each of them the right to fully recover the same," is a sufficient finding of the ultimate fact.

[5] ID.-WRITTEN PROTEST-STATEMENT OF GROUNDS-CODE PROVISION INAPPLICABLE TO STREET OPENING ASSESSMENT.- -Section 3819 of

the Political Code, providing that the protest there authorized musť be in writing and must specify the grounds upon which the payer claims that the tax is void, refers only to ordinary taxes for state and county purposes, and does not apply to special assessments made under the Street Opening Act of 1903 nor to other special assessments, except where the act providing therefor makes the provisions of section 3819 applicable.

[6] ID.-PAYMENT OF STREET OPENING ASSESSMENT -PAROL PROTEST SUFFICIENT. In view of the fact that the Street Opening Act of 1903 contains no provision on the subject of the payments of assessments under protest, and the sufficiency of such protests must be determined by the rules of the common law, it is competent to make such protests in parol, and in an action to recover the assessments so paid, it is not error to admit testimony of the conversations on the subject between the persons making the payments and the collecting officer at the times of the respective payments. [7] ID.-ACTION TO TEST VALIDITY OF ASSESSMENT-NOTICE TO CITY OF CLAIM OF PROPERTY OWNERS-PAYMENT OF ASSESSMENT-SPECIFICATION OF GROUNDS OF PROTEST UNNECESSARY.-The bringing of an action to test the validity of street opening proceedings was express notice to the city and to all of its agencies empowered to act on the matter that the plaintiffs in such action claimed that the assess ments were illegal, and as to such plaintiffs it was unnecessary in making payments of the assessments after published notice of the sale but before the sale of their properties for delinquent assessments to specify their grounds of protest.

[8] ID.

SPECIFICATION OF GROUNDS OF PROTEST-RULE.-In cases where the collecting officer has not paid over the money and is therefore still subject to action, specifications of the grounds of protest are not necessary where such officer is chargeable with knowledge of the illegality of the tax, or is aware of the facts which make it illegal, and in such cases a general statement that it is illegal is sufficient. [9] ID.-INTEREST ON RECOVERED ASSESSMENTS.-The rule that in an action to recover taxes paid under protest under section 3819 of the Political Code no interest from the time of payment to the date of judgment can be allowed should apply to money paid under protest and governed by the common law, and the proper rule applicable in an action to recover money paid upon a street opening assessment, where the assessment has been judicially declared to be void, is to allow interest from the date the invalidity was established by the final judgment.

[10] ID.-RECOVERY OF ILLEGAL ASSESSMENT FROM COLLECTING OFFICERS WHEN PERMISSIBLE.-An action will not lie against collecting officers or boards, such as the board of public works and its members, to recover money paid upon an illegal assessment, unless

the money still remains in the hands of the board or its members
at the time such action is begun.

[11] ID. RECOVERY AGAINST MEMBERS OF BOARD OF PUBLIC WORKS.-
An action to recover money paid upon assessments for the opening
of a street will not lie against the persons who at the time of the
payments were members of the board of public works, where at the
time the action was commenced the money collected upon the assess-
ments was all paid into the treasury of the city and paid out of the
treasury in satisfaction of damages awarded to the persons whose
lands were taken and damaged by the opening of the street.
[12] ID.-APPLICABILITY OF RULE TO CITY OR COUNTY.-Wherever a city
or a county occupies a position similar to that of a collection
agent who has paid the money collected over to his principal, this
rule applies.

[13] ID. RECOVERY AGAINST CITY.-A city is liable to the payers of a
void assessment for the opening of a street, where payments were
made under protest, notwithstanding the city had prior to the be-
ginning of the action to recover the payments paid out the money
as damages to the persons whose land was taken or damaged for the
opening of the street.

[14] ID.-RECOVERY OF ASSESSMENTS

-

STATUTE OF LIMITATIONS.-An action to recover money paid upon assessments for the opening of a street is not founded upon an instrument in writing, and section 339, subdivision 1, of the Code of Civil Procedure is applicable thereto.

[15] ID.-DEMANDS AGAINST CITY PRESENTATION CHARTER AcCRUAL OF CAUSE OF ACTION.--Where the charter of a city provides that demands must be presented to its council or some officer of the city for approval or rejection, and that no payments can be made nor suit be brought thereon until after such presentation and rejection, the cause of action does not accrue until such presentation has taken place.

[16] ID.-ACTION NOT BARRED BY STATUTE.-An action to recover money paid upon assessments for the opening of a street was not barred by the provisions of section 339, subdivision 1, of the Code of Civil Procedure, notwithstanding the payments were made five days more than the two years prior to the beginning of the action, where the city charter provides for the presentation and approval or rejection of claims before bringing suit thereon, since it cannot reasonably be claimed that the parties could have had action upon their claims by the city officials within the five-day period.

APPEAL from a judgment of the Superior Court of Los Angeles County. Grant Jackson, Judge. Reversed.

The facts are stated in the opinion of the court.

1

Albert Lee Stephens, City Attorney, Charles S. Burnell, Assistant City Attorney, and Wm. P. Mealey, Deputy City Attorney, for Appellants.

W. W. Hyams, F. E. Davis and Davis & Hyams for Respondents.

SHAW, J.-In this action the plaintiffs seek to recover money paid upon assessments for the opening of a street in Los Angeles, under the Street Opening Act of 1903 (Stats. 1903, p. 376). The court below gave judgment in favor of plaintiffs against all of the defendants. The appeal is from the judgment. The record also presents for review an order denying a motion for a new trial.

The ground of the action was that the assessments were invalid and that the payments were made by compulsion and under protest. The proposition that the assessments in question were invalid was established by the decision of the district court of appeal in Walker et al. v. Los Angeles et al., 23 Cal. App. 634, [139 Pac. 89]. The board of public works and the persons who were members thereof at that time were parties defendant to that action. The court there held that said assessment and all proceedings leading up to it were void because of the fact that there was a latent ambiguity in the description of the boundaries of the district in the ordinance of intention under which the proceedings were instituted and that this ambiguity, when shown, made the description of the district uncertain and void. The defendants do not question the soundness of that decision. In the present action the plaintiffs claim as assignees of fifty-four of the property owners who, it is alleged, paid said assessment under protest, the amount paid being in the aggregate $46,599.32. The court below made findings in favor of the plaintiffs, covering the claims of forty of the plaintiffs' assignors, amounting to $30,609.25.

The appellants present the following points as cause for reversal: 1. That the payments were not made under any duress of person or property and were not accompanied by any valid or sufficient protest, and hence that they were voluntary payments which cannot be recovered. 2. That the court erred in allowing the plaintiffs interest accruing from the time of mak