to which our attention has been called, but will only mention a few typical ones. Kimbro v. Colgate, 5 Blatchf. 230, Fed. Cas. No. 7778, was a case involving the validity of a contract made in violation of a federal statute requiring agreements of a certain kind to be stamped. It was conceded that the contract when made was wholly void and that any party to it was authorized to bring suit to recover back the money paid under such purported agreement for his own benefit. The right to sue was declared to be not penalty. Nevertheless the court said that: "As the money was paid under a contract made in violation of law, there is no ground for the recovery of it back, upon principles of the common law, and, as the statute which gave the remedy has been repealed the cause of action and the suit, must, upon established principles, fall with the repeal." The rule that if the remedy for a right created solely by statute is repealed while the right is still inchoate and not reduced to possession, the right is lost, in the absence of a saving clause in the repealing statute has been adopted in this state. In People v. Bank of San Luis Obispo, 159 Cal. 65, [112 Pac. 866], Mr. Justice Henshaw, delivering the opinion of the court, after a review of the leading state, federal, and English authorities, said: "In the case of penalties and crimes, the repeal operates to defeat all actions pending. In case of a statute conferring civil rights or powers, the repeal operates to deprive the citizen of all such rights or powers which are at the time of the repeal inchoate, incomplete and unperfected. In the case of statutes conferring jurisdiction, the repeal operates by causing all pending proceedings to cease and terminate at the time and in the condition which existed when the repeal became operative. In cases of judgment pending upon appeal, the rule of decision is that the proceedings abate and the judgment falls."

Our attention has been called to no authority holding that a quasi contract for the repayment of money arises out of a transaction like the one which we are considering. In Palmer v. Conly, 4 Denio, (N. Y.) 376, it was said that a penalty given to a landlord against one who knowingly assisted a defaulting lessee to remove his furniture from the leased premises vested in favor of the lessor, notwithstanding the repeal of the statute providing the remedy of distress for rent. That case, however, is not at all similar to the one at bar. The reason for

imposing the penalty was that the wrongdoer knowingly assisted another in violating his contract with an innocent party. The College of Physicians v. Harrison, 9 Barn. & Cr. 524, and The Company of Cutlers in Yorkshire v. Ruslin, Skinner 364, cited in Palmer v. Conly, 4 Denio, (N. Y.) 376, were both cases in which penalties were given in favor of innocent parties against the violator of the law as satisfaction to the former for actual loss. Thompson v. Howe, 46 Barb. (N. Y.) 287, to which our attention has been called, was dependent upon a statute giving to a party defrauded a right of action for a penalty against the one who had practiced the fraud upon him. We have been cited also to authorities holding that where a penalty is imposed by statute on a common carrier for omitting precautionary measures, and such omission constitutes negligence, the repeal of the law commanding the precautions, after a breach thereof, does not take away a right of action in favor of a party injured by reason of the common carrier's negligence (Grey's Executor v. Mobile T. Co., 55 Ala. 407, [28 Am. Rep. 729]; Graham v. Chicago ctc. Co., 53 Wis. 473, [10 N. W. 609]; Bay City etc. Co. v. Austin, 21 Mich. 410), but such authorities are not apposite to the circumstances of this case, because the relation of common carrier and shipper or passenger is contractual and applicable existing statutes are, of course, made part of every contract between such parties.

We conclude, therefore, that the special remedy conferred by the old section 26 of article IV of the constitution was not one arising from contract and was not a vested right. It arose alone upon the provision of the statute imposing it. (Baldwin v. Zadig, 104 Cal. 594, [38 Pac. 363].) No quasi contract for repayment of the money arose by operation of law, because such contracts are not favored and are only declared when "principles of natural equity" or the law itself produces the obligation. (Pothier on Obligations, p. 113.) Therefore, the administrator had no cause of action for the money paid to the brokers under void contracts. The demurrers were properly sustained as to these causes of action.

The plaintiff also sued for the delivery of certain shares of stock which were owned by his decedent and were pledged to the brokers to secure the payment of certain sums claimed under the margin contracts. These shares were not pur

chased on margin. It is contended that the right to sue for the return of the money paid and the cause of action for the pledged stock are not dependent one upon the other-that the original contract being void, stock pledged in support of it could be recovered as not being held by the pledgee to cover a valid obligation, and with this contention we agree. Respondents argue that in theory these actions were exactly like Cashman v. Root, 89 Cal. 377, [23 Am. St. Rep. 482, 12 L. R. A. 511, 26 Pac. 883], in which the property pledged as security for payments on contract for purchase of stock on margin are held recoverable under the very section we have been discussing; that as these suits depended upon the privilege of bringing an action for payments on a certain sort of contract, the withdrawal of that privilege left the plaintiff without power of recovery in these actions whatever his right to the return of the pledged stock may be if pursued in a proper suit. But the complaint in each case sets forth all of the circumstances of the transactions between Sisson and the defendant and prays judgment for the money and the pledged stock. The contracts were void when they were made, and as we have held, the repeal of the constitutional right to sue for the money paid under their terms did not operate to give validity to the agreements themselves. The stock, therefore, was pledged to secure advances to be made on void contracts. None of it had been actually applied to payments on such contracts before the return of the shares was demanded by plaintiff, and such demands antedated the constitutional amendment. The stock was, therefore, held without authority of law as supposed security for void contracts and according to the complaints in these cases clearly plaintiff was entitled to its return. The demurrers to the causes of action for recovery of the pledged stock were erroneously sustained.

The judgment is reversed with instructions to the superior court to permit amendments to the complaints in accordance with the views expressed in the foregoing opinion.

SHAW, J. concurring.-I concur in the judgment of reversal. I agree with the conclusion that the contracts for the purchase of stocks on margin, being void under the constitutional provision existing at the time said contracts were made, were not made valid by the subsequent amendment in effect

repealing the vitiating provision. And I agree that the stocks pledged to secure these void contracts belonged of right to the pledgor and the plaintiff is entitled to recover them. I express no opinion upon the proposition that the money paid upon the marginal contracts cannot now be recovered back by the plaintiff.

Angellotti, J., concurred with Justice Shaw.

[L. A. No. 2952. In Bank.-March 30, 1912.]

In the Matter of the Estate of ELIAS J. BALDWIN, Deceased, and In re Proceedings therein on Petition of BEATRICE ANITA BALDWIN (otherwise known as Beatrice Anita Turnbull), a Minor, for Partial Distribution.

PRACTICE JURY TRIAL WHEN COURT MAY DIRECT VERDICT.-In a trial by jury the court may direct the jury to return a verdict for the defendant, unless there be substantial evidence tending to prove in favor of the plaintiff all the controverted facts necessary to establish his case. In other words, a directed verdict is proper whenever, upon the whole evidence, the judge would be compelled to set a contrary verdict aside as unsupported by the evidence.

ESTATE OF DECEASED PERSONS- - MARRIAGE - CONSENT FOLLOWED BY MUTUAL ASSUMPTION OF MARITAL RIGHTS, DUTIES, AND OBLIGATIONS -INSUFFICIENT EVIDENCE TO ESTABLISH MARRIAGE.—In a proceeding for the partial distribution of the estate of a testator, instituted by a person claiming to be his pretormitted child and the offspring of a marriage entered into, prior to the amendment of 1895 to section 55 of the Civil Code, by him and her mother, by their mutual consent under a written contract, followed by their mutual assumption of marital rights, duties, and obligations, the evidence is held not to show such a mutual assumption of marital rights, duties, and obligations as was necessary to a valid marriage under that section, and that the trial court properly instructed the jury to that effect.

ID.-MARRIAGE AT COMMON LAW-LIVING TOGETHER AS HUSBAND AND WIFE-PRESUMPTION OF MARRIAGE.-At common law the ceremony of marriage was religious and to a valid marriago such ceremony was a prerequisite. But where a man and a woman lived together as husband and wife under the name of husband and wife, held

themselves out to the world as such, and by their conduct to each other and to the world thus established a common, uniform, and undivided repute that they were married, evidence of all this was accepted, not as establishing a marriage, but as raising a presumption that a marriage had taken place.

ID.-PRESUMPTION OF MARRIAGE UNDER CODE.-In this state, before the codes, the common-law rule obtained, and this principle of the common law was placed in the code and still remains there, in the declaration that it is a disputable presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage." This presumption at common law, as under the code, was disputable, and whenever it conflicted with a higher presumption, as a presumption of innocence where a charge of bigamy was based upon a marriage resting in cohabitation and repute, it fell.

ID. MARRIAGE UNDER SECTION 55 OF CIVIL CODE-LIVING TOGETHER AS HUSBAND AND WIFE WITH FULL REPUTE OF SUCH RELATION ESSENTIAL-Under section 55 of the Civil Code, as it existed prior to its amendment in 1895, when it declared that to constitute a marriage consent first had must be followed by "the mutual assumption of marital rights, duties or obligations," it did not mean that less in the deportment, conduct, and repute of the parties was necessary than had been necessary at common law. All that the common law required was still necessary, and there could be no such assumption unless the parties lived together as husband and wife, treated each other in the way usual with married people, and so conducted themselves as to have full repute among their intimate friends and associates to be husband and wife.

ID. CONSENT FOLLOWED BY COMMENCEMENT OF COHABITATION NOT SUFFICIENT TO ESTABLISH MARRIAGE. To establish a marriage under that section, the consent of the parties, followed by a mere commencement of matrimonial cohabitation, or of the mutual assumption

of marital rights, duties, or obligations, is not sufficient.

APPEAL from an order of the Superior Court of Los Angeles County refusing a partial distribution of the estate of a deceased person. James C. Rives, Judge.

The facts are stated in the opinion of the court.

Isidore B. Dockweiler, Hutton & Williams, Walter B. Grant, and Walter L. McCorkle, for Appellant.

Bradner W. Lee, Gavin McNab, Henry T. Gage, W. I. Foley, Gibson, Trask, Dunn & Crutcher, Garret W. McEnerney, Hull McClaughry, James L. Robison, and Walter Rothchild, for Respondents.