SEAL. See CORPORATIONS, 2, 6.

SEWERS. See STREET ASSESSMENT, I, 2.

SIDEWALKS. See MUNICIPAL CORPORATIONS, 1-3.

SPECIFIC PERFORMANCE.

I.

2.

WILLS-CONTRACT FOR TESTAMENTARY DISPOSITION-UNCERTAINTY -OPPRESSIVENESS-RIGHTS OF THIRD PERSONS.-A man may make a valid agreement binding himself to dispose of his property in a partcular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees, and compelling them to convey the property according to the contract, if it be certain in its terms, and not oppressive, and the rights of innocent third parties are not involved; but if the contract be vague and uncertain, or the remedy sought is harsh or oppressive, or unjust to innocent third parties, equity will withhold its assistance.-Owens v. McNally, 444.

PAKOL CONTRACT WITH NIECE-SUBSEQUENT MARRIAGE OF UNCLEQUANTUM MERUIT.-Where an uncle made a parol contract with his niece to come and live with him, and care for him, and that he would bequeath to her all of the property which he might own at the time of his death, and he married before his death, the wife being ignorant of the contract, which was vague and uncertain as to the services to be rendered by the niece, such contract cannot be specifically enforced against the widow after the death of her husband; but the niece must resort to an action of quantum meruit.-Id.

See VENDOR AND VENDEE, 8.

STARE DECISES. See APPEAL, 3, 5.

STATUTE. See FEES.

STATUTE OF FRAUDS. See GUARANTY, I, 2.

STATUTE OF LIMITATIONS. See FRAUD, 1-5.

STOCK AND STOCKHOLDERS. See CORPORATIONS.

STREET ASSESSMENTS.

I. STREET IMPROVEMENTS-CONSTRUCTION OF SEWER-LACK OF OUTLET-JURISDICTION OF MUNICIPAL BOARD-ENFORCEMENT OF ASSESSMENT-FAILURE TO PROTEST.-It is the duty of a municipal board to provide means of disposing of the sewage of the city, and it is their province to determine whether sewers are needed, and what districts will be benefited thereby; and, if there can be no outlet provided into the ocean or some other permissible place, the board must dispose of it in some other mode, and may gather it for that purpose; and their determination as to the necessity of the construction of a sewer, and what district will be benefited by it, cannot be assailed in an action to enforce an assessment therefor, on the ground that no outlet was provided for the

STREET ASSESSMENTS (Continued).

2.

sewage, where no protest was made against the work on that ground before the board.-Harney v. Benson, 314.

ASSESSMENT IN PROPORTION TO BENEFITS-PRESUMPTION-METHOD OF CALCULATION.-An assessment for a sewer will be presumed to have been made in proportion to benefits, and the superintendent of streets will be presumed to have done his duty in distributing the burden as the statute requires, unless the assessment shows the contrary; and it is not necessary that the assessment should disclose his method of calculation; but, if the estimate of benefits appears to be rational, it is not for the court to determine whether it is the best.-Id.

3. CONCLUSIVENESS OF ASSESSMENT-APPEAL TO BOARD.-If the method of assessment adopted by the superintendent of streets in distributing the burden is wrong, the property owner must appeal to the board; and, in the absence of such appeal, the assessments made by him are conclusive, unless the board is wholly without jurisdiction, or the procedure has been departed from in some other manner.-Id. 4. STREET

IMPROVEMENT-WRITTEN

CONTRACT-Merger OF ORAL STIPULATIONS-PAROL EVIDENCE.-A written contract for a street improvement merges all oral negotiations between the contracting parties, and parol evidence is not admissible to vary the price agreed upon for the work.-McDonald v. Poole, 437.

5. ASSIGNMENT OF CONTRACT-ACTION BY ASSIGNEE AGAINST HUSBAND AND WIFE-COUNTERCLAIM BY HUSBAND AGAINST ASSIGNOR.-In a joint action by the assignee of a contract against a husband and wife to enforce a contract entered into by them for a street improvement, the husband cannot counterclaim an individual demand against the assignor of plaintiff for commissions claimed for procuring the signature of other property owners to the contract.— Id.

6. ADMISSION OF PLEADING FINDING.-When the pleadings admit the assignment of the contract, no evidence or finding upon it is necessary. Id.

7. WORK AT INTERSECTION OF STREET-VOID DOUBLE ASSESSMENT-ArPEAL.-Where lots at the intresection of streets are assessed for double the amount legally chargeable thereon for work done at the intersection, which is assessed and apportioned separately from that done on the main street, such double assessment is illegal and void, and the owners of the lots may resist the enforcement of such assessment thereon as void upon its face, without appealing to the city council for correction of the assessment.-Kenny v. Kelly, 364.

8. STREET IMPROVEMENT-CONSTRUCTION OF ACT-IMPROVEMENT OF ACCEPTED STREET-VOID CONTRACT-ABSENCE OF COMPETITION-LIABILITY OF CITY AND COUNTY-MANDAMUS.-Where a contract for a street improvement on an accepted street in the city and county of San Francisco, by paving it with bituminous rock, was let under a resolution of the board of supervisors, without inviting proposals for bids, and without any opportunity for the competition, the contract is unauthorized and void under the street improvement act, which applies to any contract for doing any work authorized by the act, irrespective of the character of the street, or of the mode in which the expense is to be paid, and is in excess of the jurisdiction of the board of supervisors, and the

STREET ASSESSMENTS. (Continued).

9.

10.

city and county is not liable thereunder, and mandamus will not lie to compel the auditor to draw a warrant upon the treasurer for the expense of such improvement.-Santa Cruz Rock Pavement Co. v. Broderick, 628.

REPAIR OF STREET-IMPROVEMENT-PAVING AND MACADAMIZING.— A contract for the pavement of an accepted street with bituminous rock on a macadam foundation, the street having never been so improved before, is not a contract for the repair of the street within the meaning of section 25 of the street improvement act, but is a contract for the original improvement of the street, within the general terms of the act.-Id.

ESTOPPEL OF CITY-AUTHORIZATION FOR PAYMENT-LIMITATION OF POWER OF SUPERVISORS KNOWLEDGE OF CONTRACTOR.-The fact that the board of supervisors of the city and county of San Francisco assumed to authorize the payment of a denund under a void contract for a street improvement, cannot estop the city; but the board, having no authority to make the contract, can have no authority to order its payment; and the contractor in entering into the contract is chargeable with knowledge of limitations upon the power of the board of supervisors.-Id.

See CERTIORARI, I.

SUMMONS.

I. SERVICE ON PRESIDENT OF CORPORATION-JUDGMENT BY DEFAULTMOTION TO VACATE-QUESTION OF FACT-SUPPORT OF FINDING-DISCRETION.-Upon a motion to vacate a judgment by default against a corporation, upon the ground that there was no service of the summons upon the corporation, and that the one to whom the summons was delivered was not the president or other officer of the corporation, the question whether he was such is a question of fact for the court below, and a finding that he was president of the corporation at the time of the service will be sustained when the evidence upon the issue is substantially conflicting and not so one-sided as to show an abuse of discretion in making the finding.-J. L. Mott Iron Works v. West Coast Plumbing Supply Co., 341.

2.

DEFENSE TO ACTION IMMATERIAL.-When the motion to vacate the judgment by default is not based upon mistake, inadvertence, surprise, or excusable neglect, which might be relieved under section 473 of the Code of Civil Procedure, but is made on the ground that the court has no jurisdiction to render any judgment by reason of failure to serve the summons, the question whether the facts stated in the application to vacate the judgment constitute a defense to the action, is immaterial, and cannot be considered.― Id.

See PLACE OF TRIAL, I, 2; PRACTICE, 2.

SURETIES.

APPEAL FROM JUSTICE'S COURT-UNDERTAKING JUSTIFICATION OF SURETIES-VOID SUBSTITUTION OF NEW SURETY-CERTIORARI.—Upon apDeal to the superior court from a justice's judgment, where the

SURETIES (Continued).

sureties are required to justify, the substitution for a surety who fails to justify of a new surety who merely signs the same bond without being mentioned in the body of the bond as a surety, or otherwise being made a party thereto, is void, and the appeal is of no effect, and cannot be made effective by the action of the superior court in allowing the appellant to file a new undertaking; and the action of the court in refusing to dismiss the appeal will be annulled upon certiorari.-Bennett v. Superior Court, 440. See NOTARY PUBLIC; PROMISSORY NOTE; PUBLIC OFFICERS.

SURVEY. See MINES AND MINING, 3.

TAXATION.

I. IRRIGATION DISTRICT-VALIDITY OF TAX DEED-PRIMA FACIE EVIDENCE. Under section 30 of the irrigation act of 1887, a tax deed exccuted by the tax-collector of an irrigation district for a delinquent tax levied by its board of directors is prima facie evidence of the validity of the assessment and levy, and of the regularity and official character of the proceedings for the sale, and of the deed, provided only that the deed recites the matter recited in the certificate of sale, and is duly acknowledged or proved. Cooper v. Miller, 238.

2.

ASSESSMENT OF IMPROVED LOTS IN ONE PARCEL-LIVERY STABLE.Where the land sold for taxes consists of five adjoining lots, all belonging to the same owner, upon which a livery stable is situated which extends over and upon each of the lots, the entire five lots are to be considered as but one single parcel of land, for the purposes of taxation, and an assesment of them as such is valid, and the sale and deed for delinquent taxes regularly based thereon, confers a title.-Id.

3. LEVY FOR Different Objects.-A levy for different objects may be incorporated in one order of the board of directors of an irrigation district; and an order for a levy of a specified sum for a bond fund to pay interest on the bonds of the district may be incorporated with an order for a levy of another specified sum for a general fund to defray the expenses of management, repairs, improvements and the salaries of officers and employees.-Id. LEVY FOR SPECIAL PURPOSES-ELECTION-PRIMA FACIE EVIDENCEPRESUMPTION.-Although an election is essential to the validity of the levy of a tax for special purposes in an irrigation district, yet where a tax deed is offered in evidence which proves prima facie the regularity and validity of the levy, if there is no evidence whatever upon the subject of an election, it must be presumed that an election was held according to law to authorize the levy.-Id.

5

6.

ORDER FOR LEVY-ABSENCE OF RECITAL OF ELECTION.-The order of levy is not required to recite the fact of a previous election, nor would a recital thereof bind the owner of the land assessed; and the absence of a recital in the order that an election had been previously held is no evidence that an election was not held authorizing the board to make the levy.—Id.

EVIDENCE-ASSESSMENT OF OTHER PROPERTY.-In an action involving the validity of the assessment of the particular property,

TAXATION (Continued).

evidence as to the manner and character of the assessment of other property situated within the district is immaterial.-Id. 7. RAILROAD BONDS--MORTGAGE OF PROPERTY OUT OF STATE.-Railroad bonds which are held in this state by the owner have their situs here and are taxable in this state, notwithstanding they are cured by mortgage of railroad property situated out of the state.— Mackay v. City and County of San Francisco, 392.

se

8. SITUS OF CREDITS-DOMICILE OF CREDITOR.-Credits have their situs at the domicile of the creditor, and are taxable at the place of his domicile, nor is the debt for purposes of taxation affected by the fact that it is secured by mortgage of property situated in another state.-Id.

9. CONSTITUTIONAL LAW-EXEMPTION FROM TAXATION.-Where the constitution requires the taxation of bonds, it is not in the power of the legislature to exempt them.-Id.

10. ILLEGAL PART OF TAX-PENALTY FOR DELINQUency-Raise of AsSESSMENT BY STATE BOARD-RECOVERY BACK OF PAYMENT.—Where the legal part of a tax cannot be separated from the illegal part, both the illegal tax and the whole of the penalty paid for delinquency may be recovered if paid under protest, but when the illegal part of the tax consists of an illegal raise by the state board of taxes upon bonds above their face value, there is no difficulty in ascertaining and tendering the amount legally assessed thereupon, and in such case there can be no recovery of penalty except upon the illegal part of the tax, where there was no tender of the legal part of the tax prior to delinquency.—Id. 11. DELINQUENT TAX LIST-AUTHORITY FOR PUBLICATION-TAX COLLECTOR-SUPERVISORS.-The tax collector has no authority to contract for the publication of the delinquent tax list; but the only authority for such publication is vested, by section 3766 of the political Code, as amended in 1895, in the supervisors, who must contract with the lowest bidder after ten days' public notice; nor does the neglect of the supervisors to perform their duty vest authority in the tax collector to contract for its publication.— Smeltzer v. Miller, 163.

12. ILLEGAL CLAIM AGAINST COUNTY-INJUNCTION SUIT BY TAXPAYER. A taxpayer may maintain a suit to enjoin the county auditor perpetually from drawing his warrant upon the county treasurer in favor of a publisher of the delinquent tax list who had no contract with the board of supervisors for such publication.-Id.

See EJECTMENT, 6.

TENANTS IN COMMON. See PARTITION.

TITLE. See LANDLORD AND TENANT, I, 3, 5.
TORTS.

1.

SETTLEMENT WITH TORT FEASOR-RETRAXIT-RELEASE OF JOINT TORT FEASOR.-When several tort feasors have been sued jointly in a single action, a payment made by one of them, however large or small, in settlement and discharge of the claim against him, and a retraxit of the cause of action as against him, operates to release all of the defendants sued as joint tort feasors.-Chetwood v. California Nat. Bank, 414.