63 Cal. 120. GILMAN v. BOOTZ.

Answer averring that the contract was other than as alleged in the complaint puts the allegation in issue, p. 120.

Cited in Scott v. Wood, 81 Cal. 404, holding that an affirmative traverse did not destroy its force nor change its essential nature; Shamp v. White, 106 Cal. 221, to sustain a ruling that where the complaint averred entry under a lease, of which only the legal effect was pleaded, the issue was sufficiently raised by an answer which denied the making of the lease pleaded and set forth in full the contract between the parties.

63 Cal. 121-122.

HOGS BACK COMPANY v. NEW BASIL COMPANY.

Service by Mail is ineffectual when the affidavit fails to show that the server and the served reside or have their offices in different places, between which there is a regular communication by mail, p. 122.

Referred to in S. C. 65 Cal. 22, being a second appeal of same case.

63 Cal. 127-129. PEOPLE v. POTTER.

Officer de Facto is not entitled to recover the salary of the office to the exclusion of the officer de jure; one who seeks to recover the emoluments of an office must show his right to possession of it p. 128.

Cited in Burke v. Edgar, 67 Cal. 184, to the like effect. Ward v. Marshall, 96 Cal. 159, 31 Am. St. Rep. 200, to same effect as to the salary of a justice of the peace; Stephens v. Campbell, 67 Ark. 492, holding de facto night watchman not entitled to payment; Rasmussen v. Board, 8 Wyo. 300, noted under Dorsey v. Smyth, 28 Cal. 21; Andrews v. Portland, 79 Me. 490, 10 Am. St. Rep. 282, to same effect and holding that payment to the officer de facto was no defense to an action to recover a salary when the city had notice of the plaintiff's claim before payment; Phelon v. Granville, 140 Mass. 389, to the like effect; Selby v. City of Portland, 14 Oreg. 251, 58 Am. Rep. 313, also to same effect, but holding that the principal case was not an authority on the question that payment to de facto incumbent would exonerate the political body from payment to the de jure officer; Warden v. Bayfield Co., 87 Wis. 185, to same effect as principal case.

63 Cal. 129-143; 49 Am. Rep. 83. REIS v. LAWRENCE.

Estoppel in Pais.-Married woman who, under color of an invalid decree of divorce and in good faith executes a mortgage of real estate as a feme sole is estopped from pleading coverture in bar of the deed, p. 135.

Approved in Hand v. Hand, 68 Cal. 137, 58 Am. Rep. 7, in the case of a woman who had deserted her husband for many years and had

executed a deed as a feme sole; S. C. 68 Cal. 141, and note to 58 Am. Rep. 8, in dissenting opinion of McKee, J.; Ramboz v. Stowell, 103 Cal. 590, applying the ruling of the principal case to a woman who having deserted her husband executed a deed as a widow, and S. C., p. 593, that the evidence of intentional misrepresentation was stronger than in the principal case; Dobbin v. Cordnier, 41 Minn. 167, 16 Am. St. Rep. 685, as to estoppel as applied to married women; note to 85 Am. Dec. 144, as to point dealt with in dissenting opinion of McKee, supra; notes to 85 Am. Dec. 171, on estoppel in pais; to 10 Am. St. Rep. 21, on application of estoppel to married women; to 12 Am. St. Rep. 504, on same subject; to 43 Am. St. Rep. 348, on dower; to 44 Am. St. Rep. 641, on estoppel against married women; to 57 Am. St. Rep. 183, on estoppel of wife to assert her coverture; to 64 Am. St. Rep. 864, 870, on effect of desertion by husband.

63 Cal. 150-154. PACIFIC INSURANCE COMPANY v. STROUP.

Estoppel of Lessee to deny title of lessor does not apply when an owner in possession accepts a lease through misapprehension of his rights, p. 153.

Cited in Davis v. McGrew, 82 Cal. 138, applying the ruling where a joint owner in possession accepted a lease from his co-owner; Oneto v. Restano, 89 Cal. 68, to same effect as Davis v. McGrew, supra; Meyer v. Hope, 101 Wis. 128, noted under Cannon v. Stockmon, 36 Cal. 538; note to 95 Am. Dec. 139, on estoppel of tenant to deny landlord's title.

Title by Possession.-Continuous adverse possession under claim of title for the prescribed time makes the title absolute, p. 153.

Cited in note to 94 Am. Dec, 742, on perfect title by adverse possession; note to 95 Am. Dec. 209, to same point.

63 Cal. 154-156. BENNETT v. PARDINI.

Failure to Amend, Effect of.-In an injunction suit, failure to amend the complaint after demurrer sustained and leave given, is the same as a decision that complainant was not entitled to the injunction, pp. 155, 156.

Cited in Pettigrew Machine Co. v. Harmon, 45 Ark. 294. Probably a wrong citation and intended for Northern Ins. Co. v. Potter, 63 Cal. 157 (see next case).

63 Cal. 157-158. NORTHERN INSURANCE COMPANY v. POTTER.

Joint Debtors.-One of several joint debtors is not discharged by a release to the others expressly providing that it should not have that effect, and independently of section 1543 of the Civil Code, p. 158. Cited, it is suggested, under the title of Bennett v. Pardini, 63 Cal.

155 (vide supra): in Pettigrew Machine Co. v. Harmon, 45 Ark. 294, holding that a release, which expressly reserved the right to proceed against any other person whose liability could be shown, raised an implied agreement that the right of the codebtor to contribution, if it existed at all, should remain unimpaired; Harrison v. McCormick, 122 Cal. 654, discharge of one joint debtor which relates only to his personal privilege to be discharged by operation of law, is not available to remaining joint debtors who have not same privilege; French v. McCarthy, 125 Cal. 512, applying rule to co-obligors under contract; Aigeltinger v. Whelan, 133 Cal. 113, holding sheriff not released by release of sureties on his bond. (See note to 63 Cal. 154-156, ante.) Partners are Joint Debtors, pp. 156, 157.

Cited in Harrison v. McCormick, 69 Cal. 620, ruling that joint contractors are jointly and not severally liable; especially so are partners with respect to their partnership obligations; note to 77 Am. Dec. 114, on proceedings to enforce partnership liability, where one partner has died.

63 Cal. 159-160. ODELL v. WILSON.

Cross-complaint in Foreclosure is not a proper proceeding in which to set up a tax title. The action should be directed against the mortgagor, holder of the legal title, p. 160.

Cited in note to 79 Am. Dec. 192, on persons not made parties to foreclosure proceedings are not affected in their rights; note to 83 Am. Dec. 254, on cross-complaint; note to 68 Am. St. Rep. 360, on general subject; Wilson v. Bank, 121 Cal. 632, on point that adverse title cannot be litigated in foreclosure suit.

Foreclosure-Parties.-One claiming under a tax deed made prior to the mortgage need not be made a party, p. 160.

Cited in note to 1 Am. St. Rep. 638, on holder of tax title, whether proper party defendant in suit to foreclose.

Mortgage Foreclosure. Decree should be rendered without prejudice to prior tax title, p. 160.

Cited in O'Dea v. Mitchell, 144 Cal. 382, applying rule to street assess. ment lien.

63 Cal. 160-161. SOCIETE FRANCAISE v. BEARDSLEE.

Judgment by Consent cannot be appealed, p. 161.

Approved in Erlanger v. Southern Pacific Co., 109 Cal. 395; Rader v. Barr, 22 Oreg. 496, to same effect.

63 Cal. 162-164. LAMBERT v. McCLOUD.

Claim and Delivery.-Plaintiff must show right of possession, p. 164.

Cited in Kellogg v. Burr, 126 Cal. 41, noted under Triscony v. Orr, 49 Cal. 612.

63 Cal. 165-166. PEOPLE v. SOTO.

Murder is sufficiently charged in the language of the statute defining it, p. 166.

Cited in People v. Tomlinson, 66 Cal. 345, as to embezzlement; People v. Hyndman, 99 Cal. 3 as to murder; Sharp v. State, 17 Tex. App. 498, as to what is included in an indictment alleging homicide with malice aforethought; State v. Day, 4 Wash. 107, to the same effect as the principal case; Webb v. York, 79 Fed. Rep. 621, 49 U. S. App. 172, stating in proceedings for extradition of a person charged with embezzlement, what was a sufficient affidavit for the requisition. Distinguished in People v. Lee Look, 137 Cal. 592, noted under People v. Freeland, 6 Cal. 96; People v. Ung Ting Bow, 142 Cal. 341, holding information sufficient.

63 Cal. 167-168. PEOPLE v. WELSH.

Conduct of Accused before and after the fact at issue is admissible, not as part of the res gestae, but to show intent, p. 168.

Cited in Taylor v. State, 22 Tex. App. 545, 58 Am. Rep. 656, to sustain a ruling that it is permissible, where motive is the important question, to prove other similar transactions.

Competency of Evidence of Child.-The right of a defendant to have the test of competency made in his presence is not violated when the witness has been examined on a former trial, and, on the second trial, is not re-examined until after testifying, p. 167.

Cited in Taylor v. State, 22 Tex. App. 545, 58 Am. Rep. 658, holding that the examination as to competency must be made in court in the presence of the accused.

63 Cal. 168-170. PEOPLE v. JONES.

Murder, First Degree-Discretion of Jury.-It is proper to instruct the jury as to the exercise of its discretion, p. 170.

Approved in People v. French, 69 Cal. 177; People v. Rawden, 90 Cal.

198.

Intoxication does not relieve from responsibility, but may be considered in determining the degree of the crime, p. 169.

Approved in People v. Vincent, 95 Cal. 428, distinguishing People v. Phelan, 93 Cal. 111, which was a case of burglary; but see People v. Fellows, 122 Cal. 239, when instructions held contradictory; cited in People v. Hill, 123 Cal. 49, noted under People v. Belencia, 21 Cal. 544; People v. Methever, 132 Cal. 332, noted under People v. Lewis, 36 Cal.

63 Cal. 170-173. DOUGHERTY v. DORE.

Undertaking on Injunction.-Damages caused by an injunction which prevented the party enjoined prosecuting his work are sufficiently proximate to be recovered, p. 173.

Explained in Lambert v. Haskell, 80 Cal. 624, as not in conflict with other rulings that loss of profits or counsel's fees after the making of the final decree could not be recovered; White v. Brooke, 11 Wash. 105, applying the ruling to an injunction against a sale by a first mortgagee during the pendency of which a sale was made by a second mortgagee. Also referred to in Dore v. Dougherty, 72 Cal. 233, 1 Am. St. Rep. 49, which was an appeal in an action in which the debt secured by the judgment in the principal case was garnisheed; Montana etc. Co. v. St. Louis etc. Co., 23 Mont. 317, noted under Clark v. Clayton, 61 Cal. 634.

63 Cal. 174-178. HULL v. SUPERIOR COURT.

Quo Warranto is the only proceeding in which the right of a de facto incumbent of a public office can be questioned, p. 177.

Cited in Hull v. Superior Court, 63 Cal. 179, to same effect; People v. Toal, 85 Cal. 338, holding that the right to the office of police judge of Los Angeles could not be attacked collaterally; People v. Hammond, 109 Cal. 390, to same effect as the principal case as to office of tax collector; People v. Sehorn, 116 Cal. 508, to same effect as to office of justice of the peace; Susanville v. Long, 144 Cal. 365, applying rule to collateral attack on validity of ordinance; Walcott v. Wells, 21 Nev. 55, 37 Am. St. Rep. 484, to same effect as to the trial judge in a case of murder.

Classification of Counties.-A new census does not change a county government from one class to another, but imposes on the existing supervisors the duty of redistricting the county (concurring opinion of McKinstry, J.), p. 178.

Cited in Tehama County v. Bryan, 68 Cal. 67, holding that until the supervisors divided their counties into road districts, all districts in existence under former laws continued as such.

Official Bond must be given within the time prescribed by law or the office becomes vacant, p. 176.

Cited in People v. Perkins, 85 Cal. 511, to same effect, and holding the provisions of the law are mandatory.

63 Cal. 179. HULL v. SUPERIOR COURT.

Prohibition is not a remedy to prevent the acts of a de facto or de jure ministerial officer, p. 179.

Distinguished in Havemeyer v. Superior Court, 84 Cal. 392, 18 Am