STARE DECISIS.

LAW OF THE CASE-DECISION UPON FORMER APPEAL.-The decision upon a former appeal, that an alleged oral agreement, even if proved and found as a fact, would have been of no effect, is to be deemed the law of the case on a second appeal, even though the decision of that question was not absolutely necessary on the first appeal.-Porter v. Muller, 355.

See APPEALS, 16.

STATUTES. See CODES; SWAMP LAND DISTRICTS, 3.

STATUTE OF FRAUDS.

BROKER'S COMMISSIONS-SALE OF REAL ESTATE-PAROL

EXTENSION

OF TIME. By section 1624 of the Civil Code, an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or commission is invalid, unless it is in writing; and the time of performance of a written contract authorizing such a sale within a specified time cannot be extended by parol agreement; nor can such parol agreement be deemed an executed parol agreement, altering the written contract, within the meaning of section 1698 of the same code.-Platt v. Butcher, 634.

STATUTE OF LIMITATIONS.

1. ACTION FOR CONVEYANCE AND TO QUIET TITLE-PARTITION-BOUNDARY OF GRANT-MUTUAL MISTAKE-CORRECTED DIVISION LINERECOVERY OF REAL PROPERTY.-Where part of the lands included in partition deeds which were intended to make an equal division of the lands owned by the parties, but which, by mutual mistake, included lands outside of the boundaries of a Mexican grant, of which the lands owned by them formed a part, and, upon discovery of the mistake, the owners employed a surveyor to make an equal division between them of the lands lying within the grant, and a fence was built between them upon part of the division line thus established, the remainder of the division line being marked by a furrow, but no correction was made in the partition deeds, an action subsequently brought to compel a conveyance to the corrected division line, and to quiet title to the land up to that line, is, in effect, an action to recover real property, and is subject to the limitation of five years prescribed by section 318 of the Code of Civil Procedure, and is not governed by the limitation of three years from the discovery of the mistake, prescribed by subdivision 4 of section 338 of that code, the mistake being merely incidental to the action for the recovery of the property.-Goodnow v. Parker, 437.

2. RUNNING OF STATUTE-VESTED RIGHT-CHANGE OF LIMITATION.There is no vested right in the running of the statute of limitations until it has completely run and barred the action; and when a change in the limitation is made during the time of the running of the statute, the time run is not a credit to the defendant under the new law; and the whole period contemplated by the new law must lapse to bar the action, unless the new law itself expresses a contrary intent.-Swamp Land District v. Glide, 85. · See MORTGAGE, 14; SWAMP LAND DISTRICT, I; TRUSTS, 7-10.

STOCK AND STOCKHOLDERS. See CORPORATIONS.

STREETS, ROADS, AND HIGHWAYS.

STREET ASSESSMENT.

See INJUNCTION, I, 2.

I. INVALIDITY-PROMISE TO PAY-CONSIDERATION-ADDITIONAL WORK. Although a street assessment cannot be legally enforced for failure to get an order extending the time for the completion of the work, yet an action will lie upon a promise to waive defects and pay for the same, in consideration of the contractor doing additional work, and such promise is valid, and based upon a sufficient consideration of detriment to the contractor and benefit to the lotowner, to be enforceable like any other legal obligation. Bernstein v. Downs, 197.

2. PLEADING-ILLEGALITY OF CONTRACT-MATTER OF DEFENSE.-Where the complaint upon such street assessment shows that the additional work was ordered by the board of trustees of the city, it does not show that the contract to do such work was unlawful under section 602 of the Penal Code, and section 1667 of the Civil Code, as being for a "digging" in the street without proper license; and if there was any unlawfulness in the contract, it should be pleaded as matter of defense.-Id.

3. EVIDENCE-ASSIGNMENT OF ASSESSMENT-ACTION

BY ASSIGNEE

UPON PROMISE-ESTOPPEL OF ASSIGNEE.-Where the plaintiff sues as assignee of the contractor, upon the promise of the defendant to pay the assessment, an assignment of the assessment, diagram, warrant, etc., is competent evidence, as tending to show an assignment of the obligation sued upon; nor can the defendant object to the sufficiency of the assignment, where it appears to be sufficient to protect him as against the assignor; and where the record shows that it was intended to carry the promise to pay the assessment, with the assignment of it, and that the contractor, by his action and conduct and recognition of the sufficiency of the assignment, is estopped to question its sufficiency, the judgment should not be reversed for failure sufficiently to prove the assignment.—Id.

4. ISSUES-PROOF OF NONPAYMENT.-Where there is no affirmative plea of payment in the answer, and the denials that any sum remains unpaid are coupled with denials that any sum was ever due, and the defense was that nothing was ever duc, and there is no pretense that the defendant ever paid anything, and there is nothing in the record to show that the case was tried upon a theory of the sufficiency of the issues upon the question of payment, a judgment for the plaintiff will not be reversed for want of proof of non-payment of plaintiff's demand.—Id. 5. FORECLOSURE OF LIENS-ATTORNEY'S FEE.-Only one attorney's fee can be recovered in an action to foreclose liens for street assessments, regardless of how many different causes of action may be included in the same complaint.-Hughes v. Alsip, 587.

SUMMONS. See DIVORCE, 7-9; GUARDIAN AND WARD, 2.

SURETY.

I. ACCOMMODATION NOTE-COLLATERAL SECURITY-TENDER BY SURETYINSOLVENCY OF CODEBTORS-EXONERATION FROM LIABILITY.-The

SURETY (Continued).

makers of an accommodation note given as collateral security for the payment of the note of a principal debtor to a bank stand in the position of sureties for the principal debtor; and where one of them tendered payment of the principal debt to the bank, and asked for a transfer of the note for the purpose of suing the principal debtor and the other sureties, who were then solvent, the refusal of such tender by the bank, accompanied by a declaration that the bank preferred to keep the note, and make it out of the other parties, operated to exonerate the party making the tender from further liability in case of the subsequent insolvency of the principal debtor and of the other sureties.-O'Conor v. Morse, 31. 2. DEPOSIT OF TENDER NOT REQUIRED OBSTACLE OF CREDITOR TO REMEDY OF SURETY.-A surety tendering the amount of the debt for which he is surety, in order to enable him to pursue his remedy against his codebtors, upon the refusal of the creditor to accept it, is not required to keep the tender good, but he is exonerated as completely by its refusal, as if the creditor had, without his consent, extended the time of payment, there being the wrongful interposition of an obstacle to the remedy of the surety to protect his interest.-Id.

3. OFFER OF EVIDENCE-INSOLVENCY-FINDING PRESUMPTION UPON APPEAL.-Where the court finds as a fact without apparent objection that the surety making the tender offered to prove that the principal debtor and his codebtors were solvent when the tender was made and refused, and that subsequently they and each of them became insolvent, and have continuously since been insolvent, and the court excluded the offered evidence upon the ground that it was irrelevant, incompetent, and immaterial, to which ruling exception was taken, such finding cannot be disregarded as having no place in the record, and it must be assumed, for the purpose of appeal from the judgment by such surety, that the facts were as the appellant offered to prove them to be.-Id.

SURVEY. See BOUNDARY; PUBLIC LANDS, 4-6.

SWAMP LAND DISTRICT.

I. ACTION FOR ASSESSMENT STATUTE OF LIMITATIONS - AMENDMENT OF POLITICAL CODE.-The amendment of March 31, 1891, to section 3466 of the Political Code, which provides for the payment of the assessment, made in a swamp land district under the Reclamation Act, in such installments as the board from time to time may, in its discretion, by order entered on its minutes, direct, and that a cause of action shall accrue at the expiration of twenty days from the date of the order directing its payment, and that, if any such installment is not paid, then the whole assessment against the land of the delinquent shall become due and payable, and may, in the discretion of the board, be collected immediately in one action, does not operate retroactively, but operates upon existing assessments, so as to change the time when the cause of action accrues, and does not modify or change the limitation of section 338 of the Code of Civil Procedure, which still applies to the cause of action, when it accrues under the terms of the amendment.-Swamp Land District No. 307 v. Glide, 85.

SWAMP LAND DISTRICT (Continued).

2. DIFFERENCE IN DESCRIPTION OF ACREAGE OF DEFENDANT'S LAND— OBJECTION UPON APPEAL FOR FIRST TIME-PRESUMPTION-IMMATERIAL VARIANCE.-The objection that there is a difference in the acreage of defendant's land embraced in the exterior lines of the district, and that in the assessment-roll, cannot be considered upon appeal for the first time; nor is there any presumption in favor of the accuracy of the former over the latter; and where ownership of the tract of land described in the complaint is admitted, it is immaterial whether the acreage is correctly described, where it does not appear that the assessment was levied upon the lands by acreage.-Id.

3. REPUBLICATION OF AMENDED ACT-REPEAL.-The republication of the whole of an amended act or section does not operate as a repeal and re-enactment of the portion of the act unchanged and unmodified by the amendment, which continues to be the law throughout.-Id.

TAXATION.

I. COLLECTION OF LICENSE TAXES-PAYMENT TO TAX-COLLECTOR-POWER OF SUPERVISORS.-The board of supervisors of a county has power to impose license taxes for purposes of revenue, and to provide for their collection by suit or otherwise; and though it has no power to create the office of license tax-collector, it may authorize license taxes to be paid to the county tax-collector.-Ventura County v. Clay, 65. 2. DUTY OF

ORDINANCE.-Where the

TAX-COLLECTOR-PERMISSIVE tax-collector is authorized to receive license taxes under a county ordinance, though its language is merely permissive, it is the official duty of the tax-collector to receive them.—Id.

3. RECEIVING LICENSE TAXES AN OFFICIAL FUNCTION-PRIVATE CONTRACT-POWER OF BOARD OF SUPERVISORS-INVALID CLAIM AGAINST COUNTY. The act of receiving or collecting license taxes is an official function to be performed only by a county officer invested for that purpose with a part of the sovereign power of the state; and the board of supervisors has no power to make a contract with a private individual to collect license taxes for an agreed compensation, and such compensation cannot be enforced as a valid claim against the county.-ld.

4.

STATUTORY POWER OF TAX-Collector-COUNTY GOVERNMENT ACTPOLITICAL CODE.-Under section 154 of the County Government Act which has never been repealed, and which requires the taxcollector to perform "such" duties as are prescribed by the Political Code, he is required to perform duties "of like kind” with those prescribed by the Political Code, and the duty to collect license taxes on business being "of like kind” with the duty to collect taxes upon property, though not identical with it, is included within the purview of that section of the County Government Act.-Id.

5. ASSESSMENT

UNDERVALUATION OF STREET RAILWAY — MISREPRESENTATION-MANDAMUS-CONSTRUCTION OF CODE.-Mandamus will not lie to compel the assessor to assess street railway property in excess of its value under sections 3648 and 3649 of the Political Code, upon the ground that it was greatly undervalued for the previous fiscal year, by reason of misrepresentation of its officers as to its value; nor do either of those sections apply to such a case.-Clunie v. Siebe, 593.

TAXATION (Continued).

6. LISTING PROPERTY-ASSESSOR TO MAKE VALUATION-EQUALIZATION -MISREPRESENTATION AS TO VALUE.-The taxpayer is required to furnish the assessor a complete list of his property, but he is not required to affix any valuation to any part of his property, but it is the duty of the assessor to fix the valuation, and any error in undervaluation is to be corrected only by the board of equalization; and any misrepresentation by the owner as to the value of his property is immaterial if there is no misrepresentation as to the property itself.-Id.

7. EXECUTIVE FUNCTION-POWER OF JUDICIARY.-The assessment of property for the purpose of taxation is a function of the executive department of government; and the judiciary has no power or jurisdiction to inquire as to the actual value of property for the purpose of taxation, in order to determine whether there had been a misrepresentation of its value.-Id.

8. SCHOOL DISTRICT FUNDS-ACTION TO RECOVER ILLEGAL TAXES PAID UNDER PROTEST OF COUNTY.-The funds

LIABILITY

of a school district raised by a special school tax levied by the board of supervisors are not subject to the control of the county, and no action will lie against the county under section 3819 of the Political Code to recover such taxes paid under protest, upon the ground of alleged illegality of the school tax.-Pacific Mutual Life Ins. Co. v. County of San Diego, 314.

9. CONSTITUTIONAL LAW-PLEDGE OF CREDIT OF COUNTY-CONSTRUCTION OF CODE.-Under section 31 of article IV of the state constitution, the credit of a county cannot be pledged for the payment of the liabilities of municipal or other corporations, and section 3819 of the Civil Code is to be so construed as not to conflict with the constitution, and as not designed to authorize the recovery from the county of illegal taxes collected for the use of a school district, for which the county could have no recourse against the district, if compelled to pay them.-Id.

10. FUNDS OF HIGH SCHOOL DISTRICT

ACTION ΤΟ

RECOVER

ILLEGAL TAXES PAID UNDER PROTEST-LIABILITY OF COUNTY.-A county, as such, has no interest in the funds of a high school district, nor any control over the same in the county treasury; and no action will lie against the county, under section 3819 of the Political Code, to recover taxes paid into such funds under protest, upon the ground of alleged illegality of the high school tax.Elberg v. County of San Luis Opispo, 316.

II. CONSTRUCTION OF CODE.-Section 3819 of the Political Code is not to be construed to permit an action against a county to recover taxes paid to and held by its officials, not for the benefit of the county, but for the use of, and to be disbursed by, a local district within the county, and for the enforced payment of which by the county it could have no recourse against such district.-Id.

TENANTS IN COMMON. See MORTGAGE, 4, 5.