by appellant as independent contractors. But, without passing upon that point, we think that the contention of appellant must be decided against him, upon the authority of the cases of Colgrove v. Smith, 102 Cal. 220, and Barry v. Terkildsen, 72 Cal. 254, 1 Am. St. Rep. 55. In the first place, the maintenance of the excavation was unlawful, because there was no compliance with a certain ordinance of the city on that subject, and appellant could not relieve himself of the duty of complying with said ordinance by shifting it on to a contractor. (Colgrove v. Smith, 102 Cal. 220.) In the second place, an excavation like the one in the case at bar in the sidewalk of a populous street in a city is "so dangerous a pitfall as to be, in its character, of the nature of a nuisance"; and he who causes it to be done, knowing beforehand its nature nature and character, cannot escape liability to one who innocently falls into it, upon the ground that he let out the job of creating the nuisance (Barry v. Terkildsen, 72 Cal. 254; 1 Am.

to a contractor.

St. Rep. 55.)

Most of the specific points made by appellant are involved in the above propositions. We think there was sufficient evidence upon the point of the nature of respondent's injuries to warrant the court in instructing the jury that they might consider "how far permanent and lasting his injuries may be in their character"; and we see no error in the instructions to the jury in any other respect. It was not error to admit the ordinance of the city offered by respondent. There are a number of minor points made by appellant under the head of "Miscellaneous Exceptions"; but we do not think that either of such exceptions was well taken, or that either of them needs special mention.

The judgment and order appealed from are affirmed.

DE HAVEN, J., FITZGERALD, J., concurred.

Hearing in Bank denied.

[No. 15223. Department Two.-June 26, 1894.]

CORA B. WYMAN, APPELLANT, v. JAMES MOORE ET AL., RESPONDENTS.

ILLEGAL CONTRACT-PARTIES IN PARI DELICTO-ACTION NOT MAINTAINABLE. \, here the right of a plaintiff to recover rests upon the alleged illegality of contracts respecting wheat, and it appears that the plaintiff is not an innocent party to such transactions, but took part in and ratified them, he being a party in pari delicto, cannot maintain the action.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

George D. Collins, for Appellant.

The dealings between the defendants' and plaintiff's agent were in the nature of gambling transactions, and in contravention of the law; being illegal, the money expended thereon may be recovered in an action for money had and received, the plaintiff not being in pari delicto. (Irwin v. Williar, 110 U. S. 499; Lyon v. Culbertson, 83 Ill. 33; 25 Am. Rep. 349; Matter of Chandler, 14 Am. Law Reg., N. S., 310; Bigelow v. Benedict, 70 N. Y. 202; 26 Am. Rep. 573; Kingsbury v. Kirwan, 77 N. Y. 612; Pickering v. Cease, 79 Ill. 328; Rudolph v. Winters, 7 Neb. 125; Gregory v. Wendell, 39 Mich. 344; 33 Am. Rep. 390; Doxey v. Spaids, 8 Ill. App. 549; Norton v. Blinn, 39 Ohio St. 148; Hall v. Marston, 17 Mass. 579; Mason v. Waite, 17 Mass. 563; Knapp v. Hobbs, 50 N. H. 478.) Even if the plaintiff was in pari delicto, the transactions are covered by section 26 of article IV of the state constitution, and the moneys paid may be recovered under that provision of the law.

Otto tum Suden, and W. S. Goodfellow, for Respondent. The transaction was perfectly legal. The mere fact that margins are exacted does not make the contract

illegal, nor yet the fact that at the time of the fulfillment one of the parties makes default, and the parties settle upon the basis of the difference between the contract price and the market price at the time of the crash. (Hatch v. Douglas, 48 Conn. 116; 40 Am. Rep. 154; Union Nat. Bank v. Carr, 15 Fed. Rep. 438; Corbett v. Underwood, 83 Ill. 324; 25 Am. Rep. 392; Brua's Appeal, 55 Pa. St. 294; Smith v. Bouvier, 70 Pa. St. 325; Fareira V. Gabell, 89 Pa. St. 89; Clarke v. Foos, 7 Biss. 540; Sawyer v. Taggart, 14 Bush, 727.)

MCFARLAND, J.-This action is, substantially, to recover money alleged to have been given by plaintiff to defendants, who were brokers, to be used by the latter for the former in buying and selling wheat. The business seems to have been profitable for a while, but afterwards ended in a loss. The court found that all of the allegations of the complaint were untrue, and all the allegations of the answer true, and rendered judgment for the defendants; and plaintiff appeals from the judgment and an order denying her motion for a new trial.

We think that the judgment and order should be affirmed. Waiving the question of the alleged illegality of the transactions about wheat-upon which illegality appellant rests her claim to a recovery-it appears that the appellant was not an innocent party to such transactions, but took part in and ratified them. Being therefore a party in pari delicto, the law leaves her where it finds her.

The judgment and order are affirmed.

DE HAVEN, J., and FITZGERALD, J., concurred.

Hearing in Bank denied.

No. 15432. Department Two.-June 26, 394.]

THOMAS B. VALENTINE, RESPONDENT, v. LOUIS SLOSS ET AL., APPELLANTS.

MEXICAN GRANT TIDE LANDS-CONCLUSIVENESS OF PATENT-CONTROL OF DECREE.-Where a decree of confirmation under a Mexican grant followed the language of the grant bounding the land upon the bay of San Francisco, and the survey and the patent extended beyond the line of extraordinary high tide, and to ordinary high tice, so as to include tide lands claimed by the defendants under patents from the state, the survey and patent will control as to the land granted by the United States, and entitle a plaintiff claiming under that pat nt issued to the confirmees of the grant to recover the tide lands in controversy. ID. EVIDENCE-DELIVERY OF JURIDICAL POSSESSION-CONTRADICTION PATENT.-Evidence of delivery of juridical possession is not admissible to control the effect of the patent of the United States confirming a Mexican grant.

OF

ID. VOID APPROVAL OF SURVEY.-The district court had no jurisdiction to affirm a survey of a Mexican grant which was approved by the surveyor general before the passage of the act of June 14, 1860. ID.-STATUTE OF LIMITATIONS.--The statute of limitations does not begin to run against the confirmee of a Mexican grant until the patent has been issued.

APPEAL from a judgment of the Superior Court of Marin County, and from an order denying a new trial. The facts are stated in the opinion of the court.

Mullany & Grant, and R. Percy Wright, for Appellants.

The natural boundaries in the decree of confirmation, one of which is the bay of San Francisco, control the courses and distances in the patent. (More v. Massini, 37 Cal. 432; Jones v. Martin, 13 Saw. 317; De Guyer v. Banning, 91 Cal. 402; People v. San Francisco, 75 Cal. 388.) The officers of the United States land-office, when they issued a patent for the Corte de Madera del Presidio grant, and included these swamp and overflowed lands in it, undertook to convey lands not within their control, and not then owned by the United States, and the patent, as to the swamp and overflowed lands, therefore, was void for want of authority to issue it. (Polk v. Wendall, 9 Cranch, 87; Doolan v. Carr, 125 U. S.

The court

618; Wright v. Roseberry, 121 U. S. 488.) erred in sustaining the objection of the plaintiff to the introduction in evidence of the record of the delivery of juridical possession. (More v. Massini, 37 Cal. 436; Brown v. Huger, 21 How. 305.) The court erred in sustaining the objection of the plaintiff to the introduction in evidence of the record of the decree of the United States district court, approving and confirming the survey of the Mexican grant, as it was admissible to show the invalidity of the patent for want of authority to issue it, and because of the absence of power to act on the subject matter purporting to be conveyed by it. (Doolan v. Carr, 125 U. S. 618; Wright v. Roseberry, 121 U. S. 488; Polk v. Wendall, 9 Cranch, 87; New Orleans v. United States, 10 Pet. 702, 731; Chicago Quartz Min. Co. v. Oliver, 75 Cal. 194; 7 Am. St. Rep. 143; Southern Pac. R. R. Co. v. McCusker, 67 Cal. 67; McLaughlin v. Heid, 63 Cal. 208; McLaughlin v. Powell, 50 Cal. 64.)

Lindley & Eickhoff, for Respondent.

The boundary of the bay of San Francisco is to be construed to mean the line of ordinary, and not extraordinary, high-water mark. (United States v. Pacheco, 2 Wall. 587; Jones v. Martin, 13 Saw. 315; Teschemaker v. Thompson, 18 Cal. 11; 79 Am. Dec. 151; Ward v. Mulford, 32 Cal. 365; United States Land Assn. v. Knight, 85 Cal. 448.) Assuming that there was a conflict between the recitals in the decree of confirmation and the survey described in the patent, the survey must control. (Chipley v. Farris, 45 Cal. 539; City of San Diego v. Allison, 46 Cal. 168; Younger v. Pagles, 60 Cal. 525; People v. San Francisco, 75 Cal. 397.) The patent is conclusive evidence of the survey and its conformity with the confirmation. It cannot be collaterally assailed. (Moore v. Wilkinson, 13 Cal. 488; De Guyer v. Banning, 91 Cal. 402; San Francisco v. Le Roy, 138 U. S. 656; Knight v. United States Land Assn., 142 U. S. 161.) The ruling of the court sustaining the objection of the plaintiff to the introduction in evidence of the delivery of juridical