[No. 5385.]

[Filed October 30, 1877.]

IN THE MATTER OF THE ESTATE OF MARY CUNNINGHAM, DECEASED.

WILLS- UNDue InfluencE-WHAT IS. -The will was executed when the testatrix was under the influence of liquor. The court below instructed the jury that the will was not obta ned by undue influence. Held, error: that the circumstance, if true, was pertinent evidence in connection with other circumstances in proof upon the question of undue influence, inasmuch as a person in that condition might be more readily influenced than if sober.

By the Court.

"Was the

One of the questions submitted to the jury was as follows: execution of this will" (meaning the will filed July, 1876)" obtained by undue influence?" This will was executed, if at all, April 29, 1874, and there was evidence to the effect that the testatrix was unfit to transact business when under the influence of liquor, and that she was "on a spree" and scarcely drew a sober breath during the last three weeks of April, 1874. Under these circumstances the Court below first instructed the jury that they should find that the will was not obtained by undue influence. The circumstance, if true, that the testatrix was in this condition when she executed the will, was pertinent evidence, in connection with other circumstances in proof upon the question of undue influence, inasmuch as a person in that condition might be more readily influenced than if sober at the time. In this view the instruction as given was erroneous.

Subsequently the Court instructed the jury that the question of “undue influence, menace, duress, and fraud," in the execution of this will, was one submitted to them for their verdict. In short, the two instructions were contradictory-the one withdrawing from the jury, and the other submitting to them the same question of fact, and must have confused them in their deliberations. Judgment and order reversed and cause remanded for a new trial.

[No. 5401.]

[Filed Oct. 31, 1877.]

WEED vs. MAYNARD.

CONSOLIDATION ACT-ACT OF APRIL 3, 1876-BOARD OF SUPERVISORS.—The purpose of the statute is to give the Board the discretion to resort to a special system of employing prison labor, and is not mandatory.

By the court.

The re-argument has satisfied us that the Act of April 3, 1876, was intended simply to confer on the Board of Supervisors of the city and county of San Francisco the power to inaugurate the system therein provided for, at their option, and not to deprive them of any powers with respect to street or sewer cleaning which they already possessed.

None of the provisions of the Consolidation Act relating to the subject are expressly repealed. The first section of the Act of April 3, 1876, commences :

"The Board of Supervisors are hereby authorized and empowered to have the streets of said city and county kept clean in the following manner." The sixth section invests the Board with "full power and authority to cause the persons sentenced or committed to the House of Correction to be employed in cleaning the streets," etc.

Upon no principle of construction can the language of the first section of the Act, quoted above, be held to be mandatory, and as making it the absolute duty of the Board to adopt the system which they are authorized to inaugurate, and it has not been pretended by counsel that the sixth section could have any other effect than to give power to the Board, at their option, to make use of the convict labor a power which, up to the last session of the Legislature, the Board did not possess.

If it could be said that there were words in other parts of the statute which were suggestive of an intention to make the law mandatory, such words could have the effect, at most, only to make the legislative meaning to some extent ambiguous, and this would authorize a judicial reference to the title of the Act, which is "An Act to confer additional powers on the Board of Supervisors," etc.

But, in truth, there can hardly be said to be any ambiguity in the body of the statute. The evident purpose is to give the Board the discretion to resort to a special system, the principal and novel element of which is the employment of prison labor, and if in the description of the plan the word "shall" is used in defining the duties of the Board, it is clearly to be understood as declaring the affirmative duty of the Board in the particulars with reference to which the world is used, provided, or in case that the system should be adopted.

Judgment reversed and cause remanded, with directions to enter judgment in accordance with the prayer of the petition. Remittitur forthwith.

[No. 5445.]

[Filed Oct. 30, 1877.]

MARQUARD vs. WHEELER.

VERDICT-EXTRANEOUS FACTS SHOULD BE DISREGARDED.-If the verdict goes beyond the issues raised by the pleading, and passes upon an extraneous fact not embraced therein, it is void pro tanto, and the surplus matter may be disregarded in entering the judgment.

By the court.

After the charge of the court had been given, the record proceeds as follows: "The jury retired, and after due deliberation returned into court, and on the tenth day of March, 1876, rendered a verdict in writing, signed by their foreman, whereby they found for the plaintiff the sum of $3,500 in gold coin, which verdict was thereupon read to the jury by the clerk of said court.

Whereupon the jury, being instructed by the court that a verdict could not be rendered in gold coin, again retired and returned into court and again rendered a verdict for the plaintiff for the sum of $3,977 in United States currency. To which verdict the counsel for the defendants excepted."

The court below erred in not receiving the verdict as first rendered, and this error operated a substantial injury to the appellants, for, upon their further deliberation, the jury increased the amount found for the plaintiff some four hundred and seventy-seven dollars. It was of no legal consequence in this action that the verdict, as first returned, specified the amount found as "gold coin," for the complaint had not demanded gold coin, and the judgment should have been entered for the sum first found, disregarding the mere character of money in which the verdict had been found.

* *

*

In Watson vs. S. F. & H. B. R. R. Co. (50 Cal. 523) this precise question was before us, and we then said as follows: "If the verdict goes beyond the issues raised by the pleading, and passes upon an extraneous fact not embraced therein, it is void pro tanto, and the surplus matter may be disregarded in entering the judgment. In this case there was no issue as to whether the plaintiff's demand was payable in gold coin, and the complaint contains no averment on that point. The words 'gold coin' in the verdict are therefore mere surplusage, and should have been disregarded in entering the judgment."

Judgment and order reversed and cause remanded for a new trial.

[No. 5142]

[Filed November 2, 1877.]

SPRING vs. HEUSTON.

SURVEYS-DESCRIPTIVE CALLS.-When descriptive calls are at variance with what seems the true boundary lines, they must be disregarded.

ESTOPPEL.-An agreement for a survey, to ascertain tre lines independent of other circumstances, does not create an estoppel.

By the court.

One of the descriptive calls in the mortgage to Moss is, "north 19 degrees 30 minutes, west 11 chains to the mouth of the creek (Islais Creek), thence ascending the said creek, north 81, west 5 chains," etc., giving certain courses and distances, until arriving at a certain point, and then "crossing the creek to the end of old wall on the north side of the marsh." If the courses and distances from the mouth of the creek be followed as the true line, there will be excluded from the mortgage a strip of land between this line and the creek, which includes the premises in controversy.

On the contrary, if the creek is the true boundary, then the premises in controversy are included in the mortgage under which the defendants claim through a foreclosure sale. The court below held that the premises in dispute

are not included in the mortgage; and on that assumption entered a judgment for the plaintiff. We are all of opinion that this ruling was erroneous, and that the creek is the true boundary, and consequently that the premises in controversy were included in the mortgage.

The plaintiff, however, contends that the defendants are estopped by two surveys, one by Hoadley and the other by Potter, establishing, as is claimed, an agreed line. In respect to the Hoadley survey, as we understand the testimony, Hoadley was selected simply to ascertain the true line as fixed by the mortgage, and not as an arbitrator to establish such other line as he might consider equitable under all the circumstances. We have been referred to no adjudicated case which holds that such a survey, of itself, independently of other circumstances, creates an estoppel. The same remark applies to the Potter survey; and, moreover, the agreement for this survey was between the plaintiff and the defendant Williams only, and, of course, would not bind the other defendants.

Judgment and order reversed and cause remanded for a new trial.

[No. 5450.]

[Filed October 31, 1877.]

DYER vs. CHASE.

STREET ASSESSMENTS-RESOLUTION OF INTENTION-SPECIFICATIONS AND CONTRACT.-Where the specifications and contract include more work than the resolution, recovery can be had for only such as is included in the resolution, and not the whole assessment. NOTE. We do not understand that the plaintiff is barred from bringing an appropriate action for the extra work done. He can not claim it by an action under the resolution.

By the Court.

The resolution of intention described the proposed work as follows: "That Vallejo street from Polk to Gough street (except the crossing of Van Ness Avenue and Vallejo street) be macadamized and curbed with redwood curbs." The specifications and the contract for the doing of the work included the macadamizing of the sidewalks as well as the roadway. The resolution does not include work on the sidewalks, but is limited to that to be done on the roadway. (Himmelmann vs. Satterlee, 50 Cal. 68.) The Court found the cost of the work on the roadway and that on the sidewalk separately, and, deducting the latter from the whole assessment, gave judgment for the remainder, as for the cost of the work on the roadway. But the demand made by the plaintiff was for the whole assessment, and not for the portion thereof which would be chargeable for the work on the roadway. The plaintiff is not entitled to a recovery, unless he proves a demand for the amount legally due for the work.

Judgment and order reversed and cause remanded for a new trial.

Recent Decisions.

NEW YORK COURT OF APPEALS.

September 25, 1877.

MONEY involuntarily paid on an illegal assessment may be recovered back. If the assessment is regular on its face, so that its collection can be enforced by seizure or sale, and evidence aliunde is necessary to show its invalidity, money paid thereon is paid involuntarily or by coercion by law.

COERCION in fact and coercion by law defined.

Appeal by plaintiff from a judgment of the general term of the Supreme Court in the First Department, affirming a judgment in favor of defendant. The action was brought to recover the amount of an assessment paid to defendants under these circumstances: In the latter part of July, 1869, plaintiff received a notice from the bureau of collection of assessments of the city of New York, stating that an assessment had been made upon his property, and confirmed. The plaintiff then paid the amount of the assessment under protest. An action was brought by plaintiff and others, and the assessment was declared invalid. after which plaintiff brought this action to recover back the amount paid.

A. R. DYETT, for appellant.

D. J. DEAN, for respondents.

FOLGER, J., delivered the opinion of the court.

The reversal of the assessment and the setting it aside as illegal and void is conclusive that the money obtained upon it by the defendants was got from the plaintiff without primary right. In such case the general rule is, that the money ex æquo et bono belongs to the plaintiff, and is held by the defendant for his use. The law raises an obligation on the part of him who has received the benefit of it to make restitution. It is upon this principle that an action is maintainable to recover back money collected in satisfaction of an erroneous judgment which has been reversed after payment made. Bank of United States vs. Bank of Washington, 6 Pet. 8; Stinge vs. Allis, 10 Wend. 355; Clark vs. Pinney, 6 Cow. 297.

But in actions to recover money paid in such case another principle comes in and must be observed. That is, that the payment must be involuntary, which is tantamount to saying that it must be compulsory, from coercion either in fact or by law. The reason of this principle is, that a person shall not be permitted, with knowledge that the demand made upon him is illegal and unfounded, to make payment without resistance, where resistance is lawful and possible, and afterward to choose his own time to bring an action for restoration, when perchance his adversary has lost the evidence to sustain his side. I have spoken of coercion in fact and coercion by law. By the first, I mean that duress of person or goods where present liberty of person or immediate possession of goods is so needful and desirable as that an action