SCHOOLS (Continued).

6. PLEADING JUDGMENT BY DEFAULT.-Where the answer of the school district pleads that the judgment upon which the payment was made under execution was one upon which a default was entered by the clerk, and that judgment was thereupon entered by him, the answer is not defective because it also avers that the judgment by default was duly given and made by the clerk.-Id. 7. RETENTION OF EXECUTION BY ATTORNEY-PAYMENT TO SHERIFF.— The fact that the execution upon the judgment was retained by the attorney of the plaintiff until after an order was procured from the school trustees, and a requisition from the school superintendent for a payment of the debt due from the school district to the execution defendant, is not material, if before the money was paid the sheriff took the execution and received the money from the treasurer. -Id.

SCHOOL LANDS. See JUDGMENT, 10, 11.

SETOFF. See CORPORATIONS, 27; FENCES, 8.

SLANDER.

1. ACTIONABLE WORDS-CHARGE OF ARSON-SETTING FIRE TO YARD. -Words charging the plaintiff with having set fire to a yard, in which stood the warehouse of a wood and coal company, charge the crime of arson, and are actionable per se.-Clugston v. Garretson, 441.

2. YARD APPURTENANT TO WAREHOUSE "BUILDING."-The yard in which the warehouse of the wood and coal company is alleged to have been set on fire should be regarded prima facie, as "appurtenant to, or connected with," the warehouse, and, therefore, within the definition of the word "building" given in section 448 of the Penal Code, the setting on fire of which is declared to be arson.—ld. 3. CHARGE OF SETTING FIRE TO WAREHOUSE-PLEADING-INNUENDO. -Where the complaint alleges that a warehouse in a yard was set on fire, and charges the defendant with having said in the presence of others that "Clugston set the fire," these words import that Clugston set fire to the warehouse, and must have been so understood by those to whom the words were spoken, and no innuendo is necessary to show the meaning.-Id.

4. CONSISTENCY OF DISTINCT CHARGES.-The fact that the defendant had said to others at a previous date that the plaintiff set fire to the yard is not inconsistent with the charge of setting fire to the warehouse, which was in the yard.-Id.

5. PLEADING-DESTRUCTION OF WAREHOUSE.-It is not necessary upon a charge of slander, falsely accusing the plaintiff of setting fire to a warehouse, to allege that the warehouse was consumed or destroyed by the fire.-Id.

OF

6. PLEADING.-Where distinct causes of action, upon a charge of slander, are not separately stated, or not stated with sufficient certainty, these defects are waived by a general demurrer.-Id. 7. TRUTH OF CHARGE-MITIGATING CIRCUMSTANCES-BURDEN PROOF.-Where the words spoken are actionable per se, and the speaking of them is not denied, but the answer alleges that they were true, and sets up mitigating circumstances, no proof is required on the part of the plaintiff to make out his case; but the law pre

SLANDER (Continued).

sumes that the words were both false and malicious, and the burden of proving their truth, or any facts tending to mitigate the damages is on the defendant.-Id.

8. BELIEF OF TRUTH OF CHARGE-ABSENCE OF MALICE-MEASURE OF DAMAGES.-Where the words spoken were untrue, but were spoken without actual malice on the part of the defendant, but in good faith, believing them to be true, the verdict of the jury should be confined to the actual damage sustained by the plaintiff.—Id.

STATUTES.

STATUTORY CONSTRUCTION-STATE, EXCEPTED FROM GENERAL WORDS. -The state is not bound by general words in a statute which would operate to trench upon its sovereign rights, or injuriously affect its capacity to perform its functions or establish a right against it.-Skelly v. Westminster School District, 652.

STATUTE OF LIMITATIONS.

1. PRESUMPTION UPON APPEAL-ABSENCE OF SPECIFICATIONS.-Where the statement shows indebtedness arising more than two years before the action was commenced, and also shows that such indebtedness was based upon similar transactions to those after that period, it cannot be presumed upon appeal that any part of the moneys recovered were paid upon those transactions, where no specification as to the insufficiency of the evidence suggests such point.-Wetmore v. Barrett, 246.

2. CORPORATION-LIABILITY OF STOCKHOLDER-STATUTE OF LIMITATIONS. The liability of a stockholder of a corporation to pay his proportion of its corporate debts is one created by statute, and an action to enforce that liability must be brought within three years after the cause of action accrues.-Bank of San Luis Obispo v. Pacific Coast Steamship Co., 594.

8. NOTE OF CORPORATION-RUNNING OF STATUTE AGAINST STOCKHOLDER.-The liability of a stockholder of a corporation upon a note given by the corporation is created within the meaning of section 359 of the Code of Civil Procedure, at least as early as the date of the note, and the statute of limitations commences to run in favor of the stockholder from the date of its execution, and not from its maturity, regardless of how long the liability of the corporation to actions may be postponed by agreement of the creditor.-Id.

See FINDINGS, 4; MEXICAN GRANT; NEGLIGENCE, 17.

STAY OF PROCEEDINGS.

See APPEAL, 1, 2.

STOCK AND STOCKHOLDERS.

1. SALE OF STOCKS ON MARGIN-FUTURE DELIVERY-CONSTRUCTION OF CONSTITUTION-QUESTION OF LAW-EVIDENCE-The court must decide the question, as matter of law, as to what the framers of the constitution intended by the provision of section 26 of article 4, to the effect that "all contracts for the sale of shares of the capital stock of a corporation or association, on margin, or to be delivered at a future day, shall be void, and any money paid on such contracts may be recovered by the party paying it by suit, in any court of

STOCK AND STOCKHOLDERS (Continued).

competent jurisdiction," and the construction of this provision does not depend upon the evidence of the witnesses in a particular case as to what the terms "on margin, or to be delivered at a future day," mean, according to the usage of brokers and other dealers in stocks during the years immediately preceding the adoption of the new constitution.-Sheehy v. Shinn, 325.

2. JUDICIAL NOTICE-LEGAL TERMS.-The courts take judicial notice of the true meaning of all legal expressions, including all the terms used in the constitution or in acts of the legislature.-Id. 3. SELF-EXECUTING PROVISION-VOID

CONTRACTS-JURISDICTION.— The provision of section 26 of article 4 of the constitution of 1879 is self-executing, needing no act of the legislature to give it its intended effect; and contracts of the class designated are rendered void by the constitution itself, and money paid in pursuance of them is recoverable by actions commenced in the superior or justice's court, according as the amount claimed is more or less than $300.-Id.

4. MEANING OF "MARGIN”—RETENTION OF STOCK AS SECURITY— RIGHT OF SALE.-The word "margin" as most frequently employed in this state at the time of, and for many years prior to, the adoption of the constitution, meant the sum deposited by a purchaser of stock with his broker paying a certain percentage of the purchase price of the stock, the broker agreeing to advance the balance of the purchase price upon condition that he should hold the stock as security for his advances, with the right to sell it in case of depreciation in value and failure of the purchaser to keep the margin good; and this is the sense in which the word was used by the framers of the new constitution.-Id.

5. SALE ON MARGIN AND FOR FUTURE DELIVERY.-An agreement for the sale of stock upon payment of a part of the agreed price, the stock to be retained by the vendor as security for the balance, and only to be delivered upon such payment, with the right of the vendor to sell it at any time, without notice to the vendee, if it so depreciates in the market as to be worth less than three times the unpaid balance, is a sale of stock on margin and for future delivery. -Id.

6. EVASIVE FORM-PURCHASE BY BROKER FOR ACCOUNT OF CUSTOMER-AGENCY-RETENTION OF TITLE AND POSSESSION.-A broker cannot make and enforce sales of stocks on margin and for future delivery, and retain the payments made under such contracts, by the evasion of going through the form of buying from a third party for the account of the purchaser, as his attorney in fact, when by his contract he has made elaborate provision that the title to the shares shall remain in himself, and never pass to the purchaser until full payment is made.-Id.

7. EVASION OF CONSTITUTION.-To give effect to the constitution it is as much the duty of the courts to see that it is not evaded. as that it is not directly violated; and where the transaction appears to be a dealing in stocks on margin in substance, the fact that another name is given to the transaction will not have the effect to make it valid.-Id.

8. LEGITIMATE TRANSFER OF STOCK-PLEDGE FOR BORROWED MONEY. -The rule against the sale of stocks on margin does not prevent any legitimate transfer of stock, whether through the agency of a

STOCK AND STOCKHOLDERS (Continued).

broker or otherwise, nor any legitimate and bona fide pledge of stock certificates as security for borrowed money, whether borrowed for the purpose of paying for the stock or any other purpose; and where such is not only the form, but the substance, of the contract, the inhibition of the constitution does not apply.—Id. 9. SHARES FULLY PAID FOR AND DELIVERED.-Where shares purchased by the broker are fully paid for, and the certificates delivered, the purchaser can recover nothing on account of them.—Id. 10. PURCHASES OF MINING STOCK ON MARGINS-RECOVERY OF MONEYS PAID TO BROKERS.-An action will lie to recover back moneys paid to brokers in consideration of purchases of mining stock on margins; and where the brokers had printed the transactions and conditions upon which they were doing business, and required plaintiff's agent to agree to them, which showed that the transactions upon which the money was paid were purchases of stock on margins, the plaintiff is entitled to recover.-Wetmore v. Barrett, 246. 11. PAYMENT OF ASSESSMENTS UPON STOCK-REQUEST NOT IMPLIED -VOID SECURITY-SETOFF.-Where there was no request by the plaintiff for the payment of assessments by the brokers upon the mining stock purchased on margins, the law will not imply a request to pay nor promise to repay; and the transaction being void, the brokers do not hold the stocks upon which the assessments were paid as security for their payment, and cannot set them off against the recovery of the moneys paid to the brokers.-Id.

See CORPORATION; STATUTE OF LIMITATIONS, 2, 3.

STREETS.

1. ACTION UPON STREET ASSESSMENT-TIME LIMITED FOR WORKDEFECTIVE PLEADING CURED BY VERDICT.-In an action to enforce a street assessment, where it appears that the street to be improved was divided in sections, and several contracts let for the several sections, a complaint not expressly averring the time specified in the contract for the commencement and completion of the work under the contracts, but averring "that all the work ordered to be done was completed pursuant to the contracts within the time given by the commissioner of streets in the contracts," though insufficient in the face of a special demurrer, contains an inferential statement that the contracts specified the time within which the work was to be done, and the defective allegation is cured by verdict.Treanor v. Houghton, 53.

2. UNIFORMITY OF ASSESSMENT.-Where the complaint alleges that the "commissioner of streets made in the manner and form required by law, an assessment upon the lots and lands fronting thereon, each lot or portion of a lot being separately assessed in proportion to the frontage at a rate per front foot sufficient to cover the total expense of the work." such allegation sufficiently shows that the assessment for the entire work was at a uniform rate, and on all the property fronting on the improvement.-Id.

3. EXCEPTIONS IN REGARD TO ASSESSMENT-REMEDY BY APPEALWAIVER. If the defendants' case falls within any of the exceptions in the statute to the general rule in regard to assessments, it devolves upon him to object to the assessment as made by appeal to the city council, and such objection is waived by failure to appeal.—Id.

STREETS (Continued).

4. SEPARATE CONTRACTS NOT ALLOWABLE FOR SINGLE IMPROVEMENT VOID ASSESSMENT.-The provisions of the statute of 1885, respecting street improvements, are all made applicable to a single contract for street improvement, and the city council has no power to award separate contracts for the performance of a single im provement, and their acts in making such award are void, and confer no authority upon the superintendent of streets to enter into the contracts, or to levy an assessment to pay for the improvements. -Id.

5. STREET IMPROVEMENT-EXTENSION OF TIME-POWER OF BOARD OF SUPERVISORS.-Under section 6 of the act of March 14, 1889, the city council, or board of supervisors of the city and county of San Francisco, has power to grant extensions of time for the performance of a contract for street improvement, which power is not limited either as to the number or time of such extensions; and it is within its power to grant an additional extension before an extension previously granted has taken effect provided the work, up to the time of the making of the application, is shown to have been prosecuted diligently in accordance with the requirements of the statute.-Buckman v. Cuneo, 62.

6. PRESUMPTION AS TO SHOWING OF DILIGENCE-OPERATION OF EXTENSION. In the absence of a showing to the contrary, it will be presumed that the action of the board, or council, in the granting of the extension was based upon a proper showing, and an extension begins to operate from the expiration of the previous extension, and not from the time that it was granted.—Id.

7. RECORDING OF ENGINEER'S CERTIFICATE-DIAGRAM PART OF CERTIFICATE-VOID LIEN.-By the act of March 14, 1889, the recording of the engineer's certificate was made an additional prerequisite to the creation of a lien thereunder, and where a diagram was drawn on the back of the engineer's certificate, which was referred to in the certificate, and showed to what extent the work was performed under the contract, and to what extent it was left unperformed, such diagram is a material part of the certificate, and it must be recorded in the office of the superintendent of streets, and, upon failure to record it, no valid lien attaches to the property assessed. -Id.

8. STREET ASSESSMENT-COMPLIANCE WITH STATUTE-INVALIDITY.— A street assessment cannot become a lien without a substantial compliance with all the provisions of the statute; and where it appears upon the face of the assessment that the lot of the defendant is charged with a portion of the expense for the work done that the statute declares must be assessed upon other lots, and which cannot, under any circumstances, be imposed upon the lot of the defendant, the assessment is invalid for any purpose.-Ryan v. Altschul, 174.

9. APPEAL TO SUPERVISORS.-Where an assessment includes expenses which, under any circumstances, might have been charged upon the property assessed, and the alleged error is to be determined by matters outside of the assessment itself, the owner must first seek its correction by an appeal to the board of supervisors; but if the assessment is void upon its face, no appeal is necessary.-Id. 10. ASSESSMENT VOID IN PART.-The assessment is to be regarded as an entirety, and is equally void if it appears upon its face that