attorney's fees had been paid. He also asked an instruction to the same effect. The objection was overruled and the instruction refused. In support of this objection the appellant relies on Elder v. Kutner, 97 Cal. 495, [32 Pac. 563]; Willson v. McEvoy, 25 Cal. 169, and similar cases, holding that in suits on attachment bonds, injunction bonds, and like undertakings, attorney's fees for procuring a dissolution of the attachment or injunction cannot be recovered as damages, unless they have been actually paid. This is the rule established in this state with regard to actions on contracts of that kind, although the decisions in many other states are to the contrary. But the rule established both in this state and elsewhere in actions for damages for tortious injuries, is that the recovery may include special damages properly pleaded, consisting of a liability, incurred but not paid, for reasonable and necessary expenses caused by the wrongful act complained of, such as the fees of an attorney employed to obtain a discharge from an illegal arrest, physician's bills incurred for a cure of bodily injuries, and the like. (Donnelly v. Hufschmidt, 79 Cal. 74, [25 Pac. 546]; McLaughlin v. San Francisco etc. Co., 113 Cal. 590, [45 Pac. 839]; Bonesteel v. Bonesteel, 30 Wis. 515; Walker v. Pittman, 108 Ind. 345, [9 N. E. 175]; Minneapolis T. M. Co. v. Regier, 51 Neb. 408, [70 N. W. 934].) The distinction was recognized and stated in Willson v. McEvoy, (25 Cal. 173), as follows: "In actions for injuries to the person, in many decisions, it is held that the defendant is answerable, not only for the damages actually sustained by the plaintiff, but also for certain liabilities the plaintiff has incurred by reason of the wrongful acts of the defendant-such as . . . extra costs incurred in procuring a release from an arrest made without reasonable cause; and the courts hold that the plaintiff may recover a reasonable compensation for those liabilities, without proof of payment."

The claim that the liability in part was for other services rendered after plaintiff's discharge from the arrest, is not sustained by the facts. She was released on bail before the services were performed, but she was still answerable to the charge, and a few days afterwards she was surrendered by her bail. Thereupon she was finally discharged. In the mean time, the attorney had performed services in advising her concerning her discharge. The liability incurred for such services

was a loss proximately caused by the false arrest and the defendant was liable therefor to the extent of the reasonable value of the services performed in securing the discharge. The jury was properly instructed by the court to determine from the evidence the sum to be allowed on this account.

The defendant is not exonerated from liability by the fact that, before filing his affidavit for the arrest, the magistrate who issued the warrant, being informed of the facts, advised him that there was sufficient cause for the arrest. In actions for malicious prosecution, advice of counsel, given under proper circumstances, or the decision of a magistrate holding the party to answer upon a criminal charge, may be sufficient evidence of probable cause for the prosecution, and may therefore serve to establish a good defense. But the defense of probable cause is not applicable in actions for false imprisonment. (Neves v. Costa, 5 Cal. App. 111, [89 Pac. 860].) In false imprisonment, the good faith of the defendant is material only on the question of punitive damages. (Ibid.) The case of Dusy v. Helm, 59 Cal. 189, went upon the ground that where the affidavit for arrest contains direct statements of facts which constitute some evidence of every fact which the statute requires to be shown therein, the magistrate to whom it is presented has jurisdiction to pass upon its sufficiency, and if he determines upon such evidence that it is sufficient and thereupon issues the warrant, the party who invokes his decision is not answerable to the defendant in damages if the magistrate errs in his judgment of such evidence. This principle can have no application to the arrest on civil process of a person shown to be a female, since such arrest is not allowed on any state of facts and the magistrate can under no circumstances acquire jurisdiction to issue the warrant. (See Fkumoto v. Marsh, 130 Cal. 66, [80 Am. St. Rep. 73, 62 Pac. 303, 509], where the case of Dusy v. Helm is thus distinguished. See, also, Ex parte Fkumoto, 120 Cal. 316, [52 Pac. 726].)

It is claimed that the damages are excessive, but in view of the well-established rule concerning the power of this court to review the question of excessive damages, we cannot say that the court or jury abused their discretion in that regard. (Diller v. Northern C. P. Co., ante, p. 531, [123 Pac. 359];

Hale v. San Bernardino etc. Co., 156 Cal. 715, [106 Pac. 83].)

The judgment is affirmed.

Sloss, J., and Angellotti, J., concurred.

Hearing in Bank denied.

[S. F. No. 5961. Department One.-May 18, 1912.]

In the Matter of the Adoption and In the Matter of the Guardianship of the Person and Estate of MAVIS KATHRYN ALLEN, a Minor.

GUARDIANSHIP OF MINOR - TESTAMENTARY APPOINTMENT - WHO MAY APPOINT. The right to appoint a guardian of a minor by will or deed is statutory, and under section 241 of the Civil Code, a guardian of a legitimate child may be so appointed "by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent."

ID.-CUSTODY OF CHILD AWARDED TO MOTHER BY DIVORCE DECREECUSTODY AFTER DEATH OF MOTHER.-A decrce of divorce, whereby the custody of a minor child was awarded to the mother, did not absolutely end the father's right to its control; it merely determined that, as between the husband and wife, the child should be placed in the custody of the latter until some other disposition should be made. It did not undertake to provide for the custody of the child after the mother's death.

ID.-FATHER'S RIGHT TO CUSTODY AFTER DEATH OF MOTHER.-Upon the death of the parent to whom is awarded the custody of a minor child by the decree divorcing the parents, the other parent becomes entitled to the custody.

ID. DIVORCED MOTHER CANNOT APPOINT GUARDIAN BY WILL DURING LIFE OF FATHER.-A mother to whom a decrce of divorce has awarded the custody of a minor child, has no right to appoint a testamentary guardian thereof, if the father of the child was alive at the time of her death. Such an attempted appointment is entirely without force or effect, and did not become operative upon the subsequent death of the father.

ID. WHEN MOTHER MAY APPOINT TESTAMENTARY GUARDIAN.-Under section 241 of the Civil Code, a mother is authorized to appoint a testamentary guardian of a minor child only in the event that the father is dead or incapable of acting. This condition must exist at the date of the mother's death, or at least when her will is probated.

ID. CONTEST FOR GUARDIANSHIP APPLICANTS WITHOUT PREFERENTIAL RIGHT DISCRETION IN APPOINTMENT.-On a contest for letters of guardianship of a minor, when neither of the applicants has any preferential right to the appointment, the court is authorized, under section 246 of the Civil Code, to exercise its discretion in appointing one or the other of the contending parties, having due regard for the considerations set forth in that section.

ID. CONSIDERATIONS ACTUATING APPOINTMENT-WELFARE OF CHILD PREFERENCE EXPRESSED BY MINOR.-In such a case the primary consideration for the guidance of the court is "the best interest of the child with respect to its temporal and its mental and moral welfare," and the conclusion reached by the court will not be set aside on appeal unless it was reached as the result of an abuse of discretion. In reaching its conclusion the court may take into consideration a preference expressed by the minor, even though the child was under the age of fourteen.

APPEALS from an order of the Superior Court of the City and County of San Francisco refusing to set aside an order for the adoption of a minor, and from an order refusing a petition for letters of guardianship of the person and estate of such minor. James M. Troutt, Judge.

The facts are stated in the opinion of the court.

J. S. Reid, for Appellant.

D. S. Hirshberg, for Respondent.

SLOSS, J.-The controversy embodied in these appeals turns upon the right to the custody of Mavis Kathryn Allen, a minor. The minor is the daughter of Peri E. Allen and Catherine B. Allen, who, at the date of the child's birth, August 29, 1900, were husband and wife. On October 16, 1901, in an action instituted by the wife, a decree of divorce was entered in her favor, and by the decree the care, custody, and control of the minor were awarded to the plaintiff in the action, "with the privilege given the defendant of visiting said child at all reasonable times."

The mother, to whom the custody of the child had thus been granted, died on June 2, 1903, leaving a will which contained, among other things, a request that if the testatrix should leave issue, Jennie Allen, a sister of Peri E. Allen, and appellant here, should "have the care and custody of such issue." We

shall assume, for the purposes of this opinion, that the appellant is correct in construing the language quoted as equivalent to a testamentary appointment of Jennie Allen as guardian, so far as the testatrix had power to make such appointment. The will was admitted to probate in the superior court of the city and county of San Francisco. After the death of the mother, the father applied to said court for letters of guardianship of the person and estate of said child, and such letters were issued to him on August 12, 1903. From then until August 19, 1910, when Peri E. Allen died, he remained the guardian of the person and estate of the child.

On September 15, 1910, Louisa V. Allen, with whom Peri E. Allen had contracted a second marriage, instituted a proceeding for the adoption of the minor, and on the same day the superior court of the city and county of San Francisco made an order for such adoption. At that time, and for a long period theretofore, the appellant was out of the jurisdiction. She returned to San Francisco, and on December 14, 1910, served a notice of motion to revoke the order of adoption and filed a petition for letters of guardianship of the person and estate of the minor. The respondent, Louisa V. Allen, filed an opposition and a counter petition for her own appointment as guardian. The motion to set aside the adoption and the petitions for letters of guardianship, were heard together. The court denied the motion to set aside the adoption, and in the guardianship proceeding, made an order denying Jennie Allen's petition for letters of guardianship and granting Louisa V. Allen's petition for such letters.

Jennie Allen now appeals from these orders. She raises many points, but as most of them are founded upon the assumption that the attempt of the mother to appoint a guardian by will was valid, the inquiry may be simplified by an examination of the soundness of this assumption.

The right to appoint a guardian by will or deed is statutory. Under the law of this state (Civ. Code, sec. 241) a guardian of a legitimate child may be so appointed "by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent." The father, in this case, was not dead when the will took effect. Nor was he "incapable of consent." It is argued that the decree of divorce, whereby the custody of the child was awarded to the