Schwarting v. Van Wie etc. Co., 60 App. Div. 475, [69 N. Y. Supp. 978]. In others the direct inquiry put to the defendant was whether in making the charge he was actuated by malice or ill-will: Coleman v. Herwick, 2 Mackey, (D. C.) 189; Campbell v. Baltimore & O. R. R. Co., 97 Md. 341, [55 Atl. 532]; McCormack v. Perry, 47 Hun, (N. Y.) 71; Heap v. Parrish, 104 Ind. 36, [3 N. E. 549]. In the case of Van Sickle v. Brown, 68 Mo. 627, the direct question asked of defendant was whether he acted in good faith in making the charge, and in Sherburne, Admr. etc. v. Rodman, 51 Wis. 479, [8 N. W. 414], the court was considering rulings upon direct questions asked the defendant upon all of the above matters in the same manner in which they were directed to the defendant in this

case.

In all the cases cited (without quoting from them) the right to make the direct inquiry on these matters was sustained on appeal or the cases were reversed for refusing to permit answer to such direct inquiries. (See, also, 3 Elliott on Evidence, sec. 2479.)

In their brief counsel for respondent fail to make any argument or to cite any authority sustaining the ruling of the trial court on these questions. Their position on the subject simply is that "the appellant was permitted to present every fact and circumstance tending to show his motive." The complete answer to this suggestion is, as we have just pointed out, that the court erroneously refused to permit him to introduce competent evidence on this very material subject. It is further suggested that the trial court decided on the motion for a new trial that in view of all the other evidence, any statement of appellant as to his motive could not change the result. Any decision to that effect does not appear in the record and would be of no consequence if it did. The evidence was competent and material to go before the jury and defendant had the right to have the jury determine, as is their exclusive province, the credit, weight, and effect to be given to it, and not the court.

It is further claimed by appellant that the court erred in refusing to allow the district attorney of San Diego to answer several questions. The latter testified that he had been consulted in his official capacity by the defendant, that the latter made a statement of the facts and upon them he advised him

that the plaintiff was guilty of embezzlement; that he drafted the complaint which defendant swore to and prosecuted the charge before the committing magistrate. On the objection of the plaintiff he was not permitted to testify as to what statement of facts defendant made to him. While defendant reserved an exception to this ruling no point is made respecting it on this appeal. His complaint is as to other rulings on questions asked the district attorney,-namely: Whether the facts stated to him were the same as were developed upon the preliminary examination; whether any different facts material to the prosecution developed upon such examination than those which had been stated to him; whether the construction placed on the law by the magistrate in discharging plaintiff was the construction which he put on the law when he advised the defendant to make the criminal complaint; and whether in his interviews with the defendant the latter manifested a malicious and hostile disposition towards plaintiff. The court sustained objections to all these questions. We perceive nothing wrong with the rulings and nothing is suggested by counsel for appellant in their support except that the testimony which he sought to elicit had a bearing on the question of the good faith of the defendant. But none of it could possibly have any relation to that question save that the last inquiry, as an inquiry, is addressed to the matter. We are satisfied, however, that proof on that subject could not be made in the manner attempted.

Appellant also complains of certain instructions by the court because he asserts that thereunder the court left it to the jury to determine for themselves whether the facts proved, did or did not establish a want of probable cause instead of embracing in the instructions the facts which the evidence. in the case tended to prove, and then instructed the jury that "as from the evidence they should find the facts which, in the opinion of the court, would or would not be sufficient to show probable cause, their verdict should be for or against the defendant." (Ball v. Rawles, 93 Cal. 222, [27 Am. St. Rep. 174, 28 Pac. 937].) We will devote no time to this subject or to a consideration of the claim of respondent that when all the instructions are considered it is apparent that the jury were properly instructed.

The law is clearly and definitely settled how a jury shall be

instructed in the cases of this character, (Grant v. Moore, 29 Cal. 644; Harkrader v. Moore, 44 Cal. 144; Eastin v. Bank of Stockton, 66 Cal. 123, [56 Am. Rep. 77, 4 Pac. 1106]; Fulton v. Onesti, 66 Cal. 575, [6 Pac. 491]; Ball v. Rawles, 93 Cal. 222, [27 Am. St. Rep. 174, 28 Pac. 937]; Smith v. Liverpool Ins. Co., 107 Cal. 433, [40 Pac. 540]; Scrivani v. Dondero, 128 Cal. 31, [60 Pac. 463]), and as this case must go back for a new trial, the parties and the court on a consideration of these authorities should have no difficulty whatever in formulating and giving to the jury clear and definite instructions governing their duties in considering their verdict.

For the error in refusing to permit defendant to testify directly on the subject of his belief, good faith, and motive in making the criminal charge as bearing on the issues of both probable cause and malice, the judgment and the order denying a new trial are reversed.

Henshaw, J., and Melvin, J., concurred.

[S. F. No. 5313. In Bank.-March 30, 1912.]

GEORGE M. WILLCOX, as Administrator with the Will Annexed of the Estate of F. W. Sisson, Deceased, Appellant, v. W. EDWARDS, doing business under the name and style of Edwards & Company, Respondent.

[S. F. No. 5314. In Bank.-March 30, 1912.]

GEORGE M. WILLCOX, as Administrator with the Will Annexed of the Estate of F. W. Sisson, Deceased, Appellant, v. CHARLES E. PAXTON, Respondent.

[S. F. No. 5315. In Bank.-March 30, 1912.]

GEORGE M. WILLCOX, as Administrator with the Will Annexed of the Estate of F. W. Sisson, Deceased, Appellant, v. FRANK R. LEWIS, Respondent.

CONTRACTS FOR PURCHASE OF STOCKS ON MARGIN-AMENDMENT OF 1908 TO SECTION 26, ARTICLE IV, OF THE CONSTITUTION-PRIOR INVALID

CONTRACTS NOT VALIDATED.-The amendment of November 3, 1908, to section 26 of article IV of the state constitution, providing that "all contracts for the purchase or sale of shares of the capital stock of any corporation or association without any intention on the part of one party to deliver and of the other party to receive the shares, and contemplating merely the payment of differences between the contract and market prices on divers days, shall be void, and neither party to any such contract shall be entitled to recover any damages for failure to perform the same, or any money paid thereon," did not validate previous contracts made in contravention of the repealed provision of that section, which invalidated all contracts for the sale of stocks "on margin, or to be delivered at a future day," and gave a right of action to recover any money paid on such contracts to the party paying it.

ID.-EFFECT OF REPEAL OF STATUTE INVALIDATING CONTRACT.-The general rule is, with the exception of statutes relating to usury, that if a contract is void by the law in force at the time it is made, the subsequent repeal of the law will not validate the contract.

ID. AMENDMENT OF 1908 REPEALED PRIOR PROVISION OF CONSTITUTION— OPERATION OF AMENDMENT NOT RETROSPECTIVE.-The effect of the adoption of the amendment of November 3, 1908, to section 26 of article IV of the state constitution is to repeal or extinguish all provisions of the former section that are not re-enacted in the amended section. The amendment is not retrospective in operation, for it contains nothing to that effect.

ID. INTENTION TO OPERATE RETROSPECTIVELY MUST APPEAR.-The general rule, applicable alike to constitutions and statutes, is that they are not to be considered retrospective in their operation, unless the intention to make them so clearly appears from their terms.

ID. MONEY PAID FOR PURCHASE OF STOCKS ON MARGIN-RIGHT OF ACTION TAKEN AWAY BY AMENDMENT.-The right of action, given by the repealed provision of that section, to recover money paid on such invalid contracts for the sale of stocks on margin or to be delivered at a future day, did not survive the repeal of that portion of the section.

ID. RIGHT TO SUE NOT FOUNDED ON QUASI CONTRACT-PENDING ACTIONS DID NOT SURVIVE AMENDMENT.-The right to sue for the recovery of money paid under such a void contract for the purchase of stock, given by the repealed provision of the constitution, was not a vested right depending upon a quasi contract for the repayment of the money by the broker, arising by operation of law from the terms of the constitutional provision as it existed when the void contract was made. It arose solely from the provision of the constitution imposing it, and upon the repeal of that provision, without a saving clause, the privilege of bringing suit for the money paid on the marginal contract was withdrawn, and all pending litigation not prosecuted to final judgment fell for want of authority to maintain it.

ID. PROPERTY PLEDGED TO SECURE ADVANCES FOR PURCHASE OF STOCK ON MARGIN-DEMAND FOR RETURN PRIOR TO AMENDMENT OF CONSTITUTION-RECOVERY MAY BE HAD AFTER AMENDMENT WITHOUT PAYING ADVANCES.-Shares of stock owned by a broker's customer, and pledged by him to secure the payment of advances made by the broker under contracts for the purchase of other stocks on margin, which contracts when made were void under the repealed constitutional provision, are recoverable by the pledgor, after the repeal of that provision, without payment of the amount advanced by the broker under such contracts, where demand for their return was made prior to the repeal of the provision of the constitution.

APPEALS from judgments of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Charles S. Wheeler, J. F. Bowie, and Nathan Moran, for Appellant.

Aitken & Aitken, for Respondent.

THE COURT.-After the decision of these cases in Department a rehearing was granted for the purpose of considering further the effect of the omission from the constitutional enactment of November 3, 1908 (art. IV, sec. 26), of the provision whereby money paid on certain prohibited contracts might be recovered. As there is no difference of opinion regarding some of the matters discussed in the opinion of the Department, written by Mr. Justice Shaw, a portion thereof is hereby adopted as follows:

"In each of the above entitled causes a general demurrer to the amended complaint was sustained, the plaintiff refused to amend and judgment was thereupon given for the defendant. The plaintiff in each case has appealed from such judgment. The questions of law presented are the same in each case, and the facts are so far identical that it will be necessary to give those only which are stated in the complaint against Edwards.

"Edwards was a broker in San Francisco. Sisson and Edwards agreed that Sisson should furnish Edwards with sums of money wherewith to buy corporate stocks, not enough, however, to pay the full price thereof, and that Edwards should buy such stocks for Sisson. Edwards agreed to ad