premises, and to pay them therefor the sum of $430, but said defendant, without any cause therefor, refused to accept said gates and lamps, or any of them, or to permit the same to be erected, or to pay for the same, or any part thereof. The assignment was made to plaintiff April 29, 1892. It is averred that plaintiff, by reason of the premises, has suffered damages in the sum of $430, with interest from the 1st day of October, 1891. The demurrer was not only upon the general ground of insufficiency of facts, but also for uncertainty; charging that it is uncertain upon what grounds plaintiff seeks to recover in this action, and in what the alleged damages consist of, or in what manner plaintiff has been damaged, or as to what is the value of said gates, lamps, and material.

The complaint, treated as in an action for the price of the goods, is insufficient, because there is no averment of delivery, or offer to deliver, sufficient to pass the title to Durkee. Considered as an action for damages for a breach of the contract, it does state a cause of action, but as such it is obnoxious to the objections raised by the special demurrer. It is uncertain as to what the damage consisted of, or as to the extent of the damage. It may be construed as asserting that the loss of Fruhling Bros. is enormous, and amounting to almost the entire contract price, because the goods would not be valuable for any other purpose. How much they are injured by the refusal of Durkee to permit them to complete the contract is nowhere stated, even in general terms. The final allegation that plaintiff has been damaged in the sum of $430 is not material. Defendant did not contract with him.

It has been often held that there is nothing in the proposition that the court overruled the demurrer because the defendant failed to appear and present it. A demurrer raises an issue of law. To overrule the demurrer is to decide that issue. On appeal, if there was prejudicial error in the ruling, the case may be reversed for that reason. Even a rule of the superior court that a demurrer would be overruled for want of presentation would make no difference. The Code allows such issue to be made, and, unless the demurrer is waived, or gotten rid of in some lawful mode, the court must decide the questions raised. The demurrer itself presents the points. The judgment and order are reversed, and the cause remanded, with direc tions to the trial court to sustain the demur rer.

We concur: HENSHAW, J.; MCFARLAND, J.

(108 Cal. 365)

GOULD v. ADAMS et al. (No. 19,572.) (Supreme Court of California. Aug. 3, 1895.) MORTGAGES-PRIORITIES-Delivery.

1. Defendant agreed with A. to sell him certain land, part cash, and balance secured by

mortgage. Defendant went with A. to a notary's office, where a deed was executed. While the mortgage was being prepared, A. said, "Let me see that deed," and took it from the table, and went, without defendant's knowledge, to plaintiff, from whom he negotiated a loan. A. then returned to defendant, paid him the money, and executed the mortgage, which defendant at once recorded. Prior to this time, plaintiff had the deed and A.'s mortgage to her recorded. Held, that defendant's mortgage was entitled to priority, as there had been no delivery of the deed to A. at the time he negotiated the loan from plaintiff. 32 Pac. 576, affirmed.

2. Defendant's negligence in allowing the deed to be removed from the room was not such as would justify an estoppel against a plea of nondelivery of the deed. 32 Pac. 576, affirmed.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by Frederick Gould, executor of the will of Julia F. Gould, against Asa Adams, John Wise, and another, to foreclose a mortgage. From a judgment in favor of defendant Wise, plaintiff appeals. Affirmed. For former reports, see 32 Pac. 576, and 33 Pac. 323.

Richards & Carrier and Geo. H. Gould, for appellant. H. H. Appel, F. R. Willis, and Houghton, Silent & Campbell, for respondents.

VANCLIEF, C. Action to foreclose a mortgage executed by defendant Adams to plaintiff's testatrix, in which John Wise was made a party defendant on the ground that he had a mortgage on the same land, alleged to be subsequent and subject to that of plaintiff. Wise answered, and also filed a cross complaint claiming that his mortgage was prior and superior to that of plaintiff, and praying that it be foreclosed as such. On the first trial of the cause the plaintiff prevailed, and the defendant appealed. This court reversed the judgment, and remanded the cause for a new trial. Gould v. Wise, 97 Cal. 532, 32 Pac. 576, and 33 Pac. 323. Upon the new trial the mortgage of defendant Wise was adjudged to be prior and superior to that of the plaintiff, and ordered to be first satisfied from the proceeds of the foreclosure sale. From this judgment the plaintiff brings this appeal on the judgment roll, containing a bill of exceptions as to matters of both law and fact.

On the former appeal the judgment was reversed on a state of facts fully set forth in the opinion of the court by Mr. Justice Garoutte. On the new trial the lower court again found the same facts, and nothing inconsistent with nor in avoidance of them. If these findings of fact on the new trial are justified by the evidence, as I think they are, it follows that the former decision is the law of the case.

Appellant complains that the court failed to find upon certain specified issues of fact, but, in view of the facts found, those issues were immaterial. A finding on each of them in favor of the plaintiff would not have ne

cessitated any change in the judgment rendered.

It is further contended that the court erred in denying plaintiff's motion to strike out defendant's answer on the alleged ground that the amended answer is inconsistent with the original answer, in that the latter avers, and the former denies, that the deed from Wise to Adams was delivered. But there is no such inconsistency. The amended answer does not deny the delivery of the deed from Wise to Adams, but merely denies that it was delivered at the time of the execution of the mortgage from Adams to plaintiff's testatrix; and this was the effect of the original answer and cross complaint, as construed on the former appeal. The principal ground upon which the first judgment was reversed was that the deed from Wise to Adams had not been delivered at the time the mortgage from Adams to Julia F. Gould was executed. On the law of the case, as determined on the former appeal, the judgment should be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(108 Cal. 345)

SEABRIDGE v. McADAM et al. (No. 19,582.) (Supreme Court of California. Aug. 3, 1895.) MALICIOUS PROSECUTION-ADVICE OF COUNSELPROBABLE CAUSE.

1. In an action for malicious prosecution of plaintiff for willfully tearing down a fence to make a passage through an inclosure, it appeared that plaintiff was in possession of land under a lease providing that, if the lessor sold any part of the land on which there was a crop, such portion would be released by paying plaintiff a reasonable compensation for his labor on the crop. Defendant bought the land while there was a crop on it, and plaintiff refused to surrender possession till paid for his labor. Defendant nailed up the fence to a field at a place where plaintiff used to enter it, and told plaintiff, if he wanted law, he would give it to him. Plaintiff pried off the boards nailed up by defendant. The attorney who advised the prosecution of plaintiff testified that defendant told him that plaintiff had broken through the fence, and that he knew there was a dispute between plaintiff and defendant as to plaintiff's right to enter the field, but did not testify as to any other facts on which his advice was given. He stated that on the trial of plaintiff no facts were brought out of which he was ignorant. Held, that the evidence is insufficient to show probable cause.

2. In an action for malicious prosecution, where the facts are admitted, the question of probable cause is one of law.

Department 2. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Action by Lee Seabridge against Robert McAdam and another for malicious prosecution. A verdict was directed for defendants, and from an order granting a new trial they appeal. Affirmed.

A. R. Metcalfe and J. H. Merriam, for appellants. Edwin Baxter, for respondent.

TEMPLE, J. This is an action to recover damages for malicious prosecution of a criminal action against plaintiff upon a charge that plaintiff did maliciously and willfully tear down fences to make a passage through an inclosure, under Act March 16, 1871-72, p. 384. At the close of the trial in the present action the court instructed the jury to find for defendants, on the ground that the evidence showed, without contradiction, that there was probable cause for the criminal prosecution, because defendants acted in good faith, under the advice of counsel, given upon a consideration of all the facts in the case. Verdict was accordingly rendered for defendants, and, upon a motion for a new trial, was set aside by the judge, presumably because he was convinced that he had erred in giving the instruction. This appeal is taken from the order granting a new trial.

It seems that plaintiff was in possession of a certain tract of land under a lease from an administrator. In the lease it was stipulated: "In case of sale by the party of the first part of any portion of said land before the same shall be in crop or use, such portion thereof shall be excepted from this lease, provided that all pasture land shall pay rent until so sold. In case of such sale of any portion of said land before the first day of July, 1890, with the crop thereon, to any person other than to said party of the second part, said portion shall be released by payment to said lessee of a reasonable compensation for his labor and expenditure in putting in of such crop and caring for the same until such sale." Plaintiff was a subtenant of a portion of the demised premises, and had corn growing upon the land on the 31st of May, 1893, when McAdam became the owner of the land through a sale by the administrator. There was evidence that tended to show that McAdam knew of plaintiff's rights before he purchased the land, and on the day of the confirmation of the sale he was shown a writing which contained the terms of the lease, and that he also knew of plaintiff's possession and rights. When he had received his deed he claimed that plaintiff must deliver to him the land, and look to the administrator for payment for his labor and expenditures. Seabridge merely persisted in holding on until he was paid. He was not paid the cost of putting in and caring for the crop, nor was anything ever tendered to him in payment. After several interviews between the parties and between McAdam and the administrator upon the subject, McAdam finally nailed up the fence where plaintiff had been in the habit of going into his field, and forbade plaintiff going into the field; and when plaintiff said he would do so as he owned the crop and had a right so to do, McAdam said: "If it's law you want, I will give you all you want, and stay with it as

long as you can." Plaintiff, having occasion to go to his field, pried off the boards which had been nailed on by McAdam, and went in. For this he was arrested, as stated.

The evidence produced by plaintiff made an undoubted case against defendant. There was no defense, except that defendants had acted upon the advice of counsel. In his testimony, McAdam made no attempt to state what he had told his counsel, or what his counsel knew about the facts. The attorney was a witness, and did not state upon what facts his advice was based. He merely stated that he had been the attorney for defendant McAdam; that he was informed that plaintiff had broken through the fence; that he knew there was a dispute between the parties, and that plaintiff claimed the right to go through the fence to the field; and, further, that he attended the trial of the case against plaintiff, and no facts were brought out at the trial of which he was ignorant when he gave the advice. He testified further that he had heard that plaintiff had made certain threats against McAdam, but had not heard, and did not know, that McAdam was aware of the fact, at the time of the confirmation of the sale, that plaintiff was the owner of the crop. This testimony was entirely insufficient to show probable cause, or to justify the instruction. It was not denied that plaintiff broke through the fence. The only question, then, was whether he did so in good faith, under a reasonable belief that he had a legal right so to do. If the facts had all been stated, no reputable attorney could have doubted that plaintiff acted under such belief. The facts detailed to the attorney, or the information which he had, should have been proven. It was then a question of fact, to be determined by the jury, and not by the court, whether the defendants had made a fair and full statement of the facts which were known to them. And even if, upon such a statement of facts, such advice was given, it was still to be determined by the jury whether defendants acted upon it in good faith, believing that plaintiff was guilty of the offense charged. And I think the jury would have been justified, in this case, in determining that they did not, if the facts were as shown by plaintiff's witnesses. Could even an intelligent layman believe, under the advice of counsel, that plaintiff, under the circumstances related, was not acting under a reasonable belief that he had a right to go through the fence? If so, it would not require a lawyer to determine that the act could not be malicious. Of course, I assume the facts to be as the plaintiff's testimony tended to prove them to be. This must be assumed in favor of the decision. They may not be as testified, and, of course, the attorney who gave the advice did not base his opinion upon such facts. There was evidence, however, which tended to prove that McAdam knew of them. course if the facts are all admitted, the

Of

CITY OF SANTA BARBARA v. ELDRED. (No. 19,567.)

(Supreme Court of California. July 31, 1895.) COMPLAINT GROUNDS OF GENERAL DEMURRERASSESSMENT DESCRIPTION OF LAND - SUFFICIENCY NEW TRIAL-APPEAL-REVIEW-SUIT FOR TAXES-FAILURE TO PUBLISH DELINQUENT LIST.

1. That a complaint is ambiguous is not a ground of general demurrer.

2. That a complaint makes the essential facts appear only inferentially or as conclusions of law is not a ground of general demurrer.

3. An assessment record, in which the first column is headed "Description of Property Ac cording to Map Book of the City of S.,' the second column "Lot," and the third "Block," and which, in the respective columns, describes the property as "City Lot," "2," "110," shows that it is in S.

4. A city assessment need not state that the taxpayer owned the property on the first Monday of March.

book.

5. Nor need it state that the city had a map

6. A city assessment is not invalidated by slovenly entries thereof by the tax collector.

7. Where the statement on motion for a new trial does not allege that the evidence is insufficient to support a finding, a new trial will not be granted on that ground.

8. Where defendant specifies in his statement on motion for a new trial that the evidence does not justify a finding that interest was due, and nothing appears in the statement to justify the allowance of interest, the judgment will, on appeal, be modified by striking out the interest.

9. In an action to recover a tax, defendant cannot object that the delinquent list was not published as required by law.

Department 2. Appeal from superior court, Santa Barbara county; W. B. Cope, Judge.

Action by the city of Santa Barbara against A. Eldred to recover a tax. Judg. ment was rendered for plaintiff, and defendant appeals. Affirmed.

B. F. Thomas, for appellant. Thos. McNulta, for respondent.

TEMPLE, J. This is the second appeal in this case (see 95 Cal. 378, 30 Pac. 562), and is taken from the judgment and from a refusal of a new trial. The action was brought to collect a municipal tax, and to the complaint a general demurrer was interposed. It was overruled, and defendant answered. He now specifies a great many alleged defects in the complaint. Many of them are, in effect, that the complaint is ambiguous or uncertain. Such objections cannot be reached on general demurrer. Nor can the other objections-which merely

amount to criticisms upon the sufficiency of the statement, as that the essential facts appear only inferentially, or as conclusions of law, or by way of recitals-prevail on such demurrer.

There must be a total absence

of some material fact, to justify us in sustaining a demurrer of this character.

The only points which I think worthy of notice on the demurrer are the objections to the assessment. It is claimed that it is invalid, because:

1. It does not show that the real estate is situated within the city of Santa Barbara. The first column after taxpayers' names is headed "Description of Property According to Map Book of the City of Santa Barbara." The next column is headed "Lot," and the next "Block." In the first of these columns are the words "City Lot"; in the second, "2"; in the third, "110." I think this sufficient to show that the property is in Santa Barbara.

2. It is not essential to the assessment that it should state that the taxpayer owned the property assessed on the first Monday of March, or that the city had a map book.

3. The slovenly entries by the tax collector, intended to show that a portion of the tax had been paid, do no injury. Interpreted as claimed by appellant, they are meaningless, and would do no harm.

4. There is no uncertainty in the figures which show the total value of all property after equalization. Ordinance 113, which provides for the levy and collection of the tax, ought to have been more fully set out, at least in effect. The allegations are, however, sufficient to support a judgment, and, as no special demurrer was interposed, they are sufficient on this appeal.

The delinquent list as published stated that the tax and costs amounted to $246.91, when, as it is contended, the correct amount was $245.91; just one dollar too much. The common council of the city of Santa Barbara, as they were authorized to do under the ordinance, which provided for the levy and collection of taxes, passed a resolution to the effect, as to all assessments upon which taxes amounted to less than $300, that where the property has been offered for sale at least once, and there is no purchaser in good faith, the tax collector shall proreed to collect the same by civil action in the name of the city. The complaint recites that all this has been done, and that, therefore, the tax collector brings this suit in the name of the city of Santa Barbara. In his statement on motion for a new trial the defendant has not charged that the evidence is insufficient to support this finding. We cannot, therefore, grant a new trial upon that ground.

A recovery was had of the sum of $81.65 for interest. No interest is claimed in the complaint, and there is no allegation under which interest could be allowed. Furthomson, the defendant has specified in his

statement on motion for a new trial that the evidence does not justify the finding that interest was due. If, therefore, there was anything in the ordinance to justify the finding, the city attorney should have seen that it was in the statement. The objection to the allowance of interest must therefore be sustained. A new trial will not be necessitated thereby, for the judgment can easily be modified by striking out the allowance of interest.

The defendant cannot object that the requirements of the statute were not pursued in the contract for publishing the delinquent list. His liability is created by a valid assessment, and, if that was made, no irregularity in the attempt to collect the tax will discharge him from the liability. The pub. lication was for the proper period.

I think there was no error in admitting the block books, and the remark of the witness Gutierrez, that it appeared from them that Alice Eldred owned lot 3, is of no moment.

The defendant admitted, by not denying, that he owned the property. Besides, the assessment put the burden upon him. Pol. Code, 3900.

The. case is remanded, with directions to the trial court to modify the judgment by deducting the interest allowed. In all other respects the judgment is affirmed.

Ex parte LACEY. (Cr. 33.) (Supreme Court of California. Aug. 1, 1895.) HEALTH ORDINANCES-VALIDITY.

An ordinance prohibiting the establishment or conducting of any steam shoddy or carpet-beating machine within 100 feet of a church, schoolhouse, or residence, passed under Const. art. 11, § 11, authorizing any city to make and enforce all such police and sanitary regulations as are not in conflict with general laws, is not unreasonable, and does not deprive any one of property without due process.

In bank.

Petition of James Lacey for writ of habeas corpus. Denied.

D. P. Hatch and R. B. Treat, for petitioner. C. McFarland, for respondent.

GAROUTTE, J. The petitioner has been convicted and imprisoned for violating a city ordinance of the city of Los Angeles which provides: "No person or persons shall establish or conduct any steam shoddy machine, or steam carpet-beating machine, within one hundred feet of any church, schoolhouse, residence or dwelling-house." He now alleges

the judgment void, upon the ground that the ordinance is void, and seeks his release by writ of habeas corpus. He claims the ordinance void upon the ground that it interferes with certain of his inalienable rights vouchsafed to him by the constitution. Upon the

part of the city, it is claimed that the passage and enforcement of the ordinance is but the exercise of a police power granted to it in terms, by the constitution of the state. The constitution of the state of California (article 11, § 11) provides: "Any county, city, town or township may make and enforce, within its limits, all such local, police, sanitary and other regulations as are not in conflict with general laws." It will thus be observed that Los Angeles city is vested with certain powers by direct grant from the constitution, and that grant of power is not confined within narrow limits, but is broad and far-reaching in its scope and effect. Under this grant of power the city had the right to pass this ordinance, unless it is in conflict with general laws; and we know of no general laws which conflict with it, unless it can be said to be violative of those general principles of constitutional liberty which form the very foundation of both the state and federal constitutions. We see nothing in the language of this ordinance contrary to these great principles of our government. We see nothing there depriving petitioner of any fundamental right. In the exercise of its police and sanitary power, the city has attempted to regulate the business of beating carpets by steam power. Under its constitutional grant, it had the right to regulate this business. The use of steam power, of itself, within municipal territory, has always been recognized as a proper subject of regulation; and, in addition, here it may well be assumed that the dust and other disagreeable and unhealthy matters arising in such quantities from the beating of carpets, as would naturally be indicated by the use of steam power, are a constant source of danger and menace to the good health and general welfare of the neighborhood where located.

Conceding the business covered by the provisions of this ordinance not to constitute a nuisance per se, and to stand upon different grounds from powder factories, street obstructions, and the like, still the case is made no better for petitioner. This is not a question of nuisance per se, and the power to regulate is in no way dependent upon such conditions. Indeed, as to nuisances per se, the general laws of the state are ample to deal with them. But the business here involved may properly be classed with livery stables, laundries, soap and glue factories, etc., a class of business undertakings, in the conduct of which, police and sanitary regulations are made to a greater or less degree by every city in the country. And in this class of cases it is no defense to the validity of regulation ordinances to say, "I am committing no nuisance, and I insist upon being heard before a court or jury upon that question of fact." In this class of cases a defendant has no such right. To the extent that it was material in creating a valid ordinance, we must assume that such question was decided by the municipal authorities,

and decided against petitioner and all others similarly situated. This court said in Ex parte Shrader, 33 Cal. 284: "The legislature can add to the mala in se of the common law the mala prohibita, of its own behest. * The power to regulate or prohibit, conferred upon the board of supervisors, not only includes nuisances, but extends to everything expedient for the preservation of the public health and the prevention of contagious diseases. Now, there are many things not coming up to the full measure of a common-law or statute nuisance that might, both in the light of scientific tests and of general experience, pave the way for the introduction of contagion, and its uncontrollable spread thereafter. Slaughterhouses, as ordinarily, and perhaps invariably, conducted in this country, might, within the limits of reasonable probability, be attended with these consequences. A competent legislative body has passed upon the question of fact involved, and we cannot go behind the finding. So far as we can know by this record, the power conferred has been exercised intelligently, and in good faith." It must be borne in mind that the court was not discussing this question from the standpoint that the conduct of a slaughterhouse within municipal territory constituted a nuisance per se. In the case of Johnson v. Simonton, 43 Cal. 249, which involved the constitutionality of an ordinance of the board of supervisors of San Francisco prohibiting the feeding of still slops to milch cows, the court says: "If, indeed, it be a fact that the milk of cows fed in whole or in part upon still slop is unwholesome as human food, there can be no doubt of either the authority or the duty of the board to enact the ordinance in question, and the scientific correctness of the determination by the board of the matter of fact involved is not open to inquiry here." In the case of In re Jacobs, 98 N. Y. 98, the court declares the following rule for testing the validity of ordinances enacted under the police power of a municipality: "When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property, without due process of law, the courts must be able to see that it has at least, in fact, some relation to the public health; that the public health is the end naturally aimed at; and that it is appropriate and adapted to that end." Tried by this rule, the ordinance in question fairly and fully fills the requirements of the law. It cannot be urged that petitioner is deprived of his property without due process of law, for, as is said by Judge Dillion in his work upon Municipal Corporations (section 141), in speaking of police and sanitary regulations: "It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances.