JURY AND JURORS (Continued).

2. STATUTORY CONSTRUCTION-RE-ENACTMENT OF PRACTICE ACT-CONSTRUCTION OF CODE. The rules of statutory construction under the codes being different from those applied to the Practice Act, a re-enactment in one of the codes of a provision contained in the Practice Act does not carry with it the construction given it previous to its re-enactment. A re-enactment only carries with it the construction previously given where the rules of statutory construction are the same at the date of both enactments.-Id.

3. JURY TRIAL-MISCONDUCT OF ATTORNEY.-A trial court should always be alert to prevent an attorney from obtaining advantages in jury trials by the practice of methods not countenanced by the ethics of the profession.-Marshall v. Taylor, 55.

4. ACTION TO DETERMINE ADVERSE CLAIM-EQUITABLE DEFENSE-SPECIFIC PERFORMANCE JURY TRIAL.-In an action under section 738 of the Code of Civil Procedure, to determine an adverse claim to real property, where the defendants admit the legal title to the land to be in the plaintiffs, and claim a right to the possession of the land under an alleged agreement for the sale of the land made by the predecessor of plaintiffs, to which they claim to have succeeded by assignment, and which they, in effect, ask to have specifically performed, the defendants are not entitled to a jury for the trial of the equitable issues thus presented.-Crocker v. Carpenter, 418.

See CRIMINAL LAW, 20, 27.

JUSTICE'S COURT. See APPEAL, 4, 5; CERTIORARI; EXECUTION, 5.

LAND. See LATERAL SUPPORT; PUBLIC LANDS; STATE LANDS.

LANDLORD AND TENANT.

1. BOND ΤΟ SECURE RENT-DISCHARGE OF SURETIES TENDER BY ASSIGNEE WITHOUT DEPOSIT BREACH OF COVENANT NOT TO ASSIGN. The sureties upon a bond given by a lessee to secure the payment of rent are discharged by a tender of rent by an assignee of the term, although such rent was not deposited in compliance with the provisions of section 1500 of the Civil Code, and notwithstanding the assignment was made in violation of a covenant not to assign the lease without the written consent of the lessor.-Randol v. Tatum, 390.

2. WAIVER OF FORFEITURE OF LEASE ACCEPTANCE OF RENT FROM PERSON NOT OWNER OF TERM.-The forfeiture of a lease for breach of a condition not to assign the lease without the written consent of the lessor is waived by the acceptance of rent, eo nomine, from any one after knowledge of an assignment of the term without the lessor's consent, though the ownership of the term is disputed, and the rent is paid by one in possession who is not the real owner of the term.-Id.

3. AFFIRMANCE OF LEASE AFTER ASSIGNMENT ACTION AGAINST SURETIES.-The lessor affirms the continuance of the lease by bringing a suit to recover rents which accrued under it, after an assignment made to a second assignee without his consent, and cannot claim that such second assignee acquired nothing by its assignment.-Id.

4. BREACH OF CONDITION AND COVENANT NOT TO ASSIGN-RIGHT OF LESSOROPTION TO FORFEIT LEASE-EFFECT OF ASSIGNMENT.-Where an assignment without written consent of the lessor is a breach both of a condition and of a covenant not to assign, the lessor has only the option to forfeit the lease for breach of the condition, and has not the option of declaring the assignment

LANDLORD AND TENANT (Continued).

void. An assignment in violation of the covenant is not void, and does not avoid the lease, but passes the term, and the only remedy for such violation is an action for breach of the covenant.-Id.

64

5. OFFER OF PERFORMANCE-EXONERATION OF SURETY-CONSTRUCTION OF CODEDEPOSIT NO PART OF OFFER.-Under section 2839 of the Civil Code, providing that an offer of performance duly made as provided in this code," no reference is had to section 1500 in regard to the deposit of a tender, which relates not to an offer of performance of a contract, but to the absolute extinguishment of a debt, and such deposit is no part of the offer which exonerates a surety.-Id. 6. ACTION FOR POSSESSION AT EXPIRATION OF TERM-PLEADING-SUFFICIENCY OF COMPLAINT.-A complaint which alleges in substance that plaintiff had leased certain premises to defendant yearly, at a certain annual rent; that before the expiration of the last year he notified defendant that he would not renew the lease, and requested him to surrender and vacate the premises, which he refused and still refuses to do, and has withheld and still withholds the possession thereof, to plaintiff's damage in a specified sum, and has failed and refused to pay the rent for the last year, and praying judgment for possession of the premises, damages, and rent due, states a cause of action, and is sufficient to support findings and judgment for the plaintiff.-McKissick v. Ashby, 422. 7. AVERMENT OF POSSESSION-DEMURRER.-The averment that defendant has withheld and still withholds the possession of the premises from the plaintiff implies that plaintiff is in possession, and is a sufficient averment of that fact as against a general demurrer, in the absence of a demurrer that the complaint is ambiguous or uncertain in that regard.-Id.

8. YEARLY LEASE-TENANCY AT WILL-EXPIRATION OF FIXED TERM.-The averment that defendant leased the lands to plaintiffs from year to year, commenc ing on the first day of March, 1886, down to the first day of March, 1889, for a specified rent, which defendant promised and agreed to pay plaintiff annually therefor, does not show a tenancy at will, but a tenancy for a fixed term which expired March 1, 1889.-Id.

3. RIGHT OF RE-ENTRY-NOTICE TO QUIT-DEMAND OF POSSESSION.-A landlord who has leased premises for a fixed term has a right to re-enter upon the expiration of the term, and to maintain an action for possession without previous notice to quit, or demand for possession after the expiration of the term.-Id. 10. ESTOPPEL OF TENANT TO DENY LANDLORD'S TITLE.-A tenant who is holding over after the term cannot deny his landlord's title without first surrendering to him the possession.-Id.

11. EVIDENCE-OCCUPANCY OF TENANT-WITHHOLDING OF POSSESSION.-In an action by a landlord to recover the possession of premises held by a tenant after the expiration of the term, it is proper for the plaintiff to show that the defendant continued in the occupancy of the land and was withholding its possession from him.-Id.

12. PROOF OF PLAINTIFF'S TITLE-PRIORITY WITH GOVERNMENT-ENTRY OF DESERT LANDS CERTIFICATE OF REGISTER.-Such action could be maintained without a showing of priority with the government; and it cannot be error prejudicial to the defendant for plaintiff to be permitted to prove his priority with the gov ernment of the United States, by producing in evidence a certificate of the register of the local land office showing an entry of the lands in question as desert lands, and a conveyance to the plaintiff from the person entering the same, instead of producing a certified copy of the certificate of purchase or receiver's receipt from the general land office.--Id.

See LEASE.

LARCENY. See CRIMINAL LAW, 33.

LATERAL SUPPORT.

1. COTERMINOUS OWNERSHIP OF LAND-SUPPORT OF BUILDING-PRESCRIPTION. The owner of a house and the land upon which it is situated cannot acquire a prescriptive right to the support of his building, and thereby cast upon the coterminous owner the duty of protecting it from an excavation upon the land of the latter, when the excavation, in the absence of the building, would not have affected his ground.-Sullivan v. Zeiner, 346.

"

2. LATERAL SUPPORT OF ADJOINING LAND COMMON-LAW CONSTRUCTION OF CODE. -The amendment of 1874 to section 832 of the Civil Code, in omitting the words by nature from the provision protecting each coterminous owner in the lateral and subjacent support which his land receives from the adjoining land, and in making such right of support subject to the right of the owner of the adjoining land to make proper excavations for building purposes, on using ordinary care and skill and reasonable precautions to sustain the land, and giving reasonable notice of his intention to excavate, does not enlarge the right of lateral support as given by the common law, which only protected the land in a state of nature, and not against loss from the weight of a building thereon.Id.

3. CAUSE OF ACTION ESSENTIAL TO PRESCRIPTION.-A title by prescription cannot be acquired unless the acts constituting the adverse use are of such a nature as to give a cause of action in favor of the person against whom the acts are performed.—Id.

4. NO RIGHT INVADED BY BUILDING.-A building on adjoining land invades no right of the coterminous owner, and inflicts no injury upon which he could base an action, and his failure to sue can create no right against him, or casement in or servitude upon his property.-Id.

LEASE.

1. EFFECT OF CONVEYANCE OF LAND RIGHT TO RENTS AND PROFITS-LIMITATIONS. A conveyance of land passes title to its rents, issues, and profits, subject only to such limitations as are contained in the instrument of transfer, or of which the grantee has actual or constructive notice.-Garber v. Gianella, 527. 2. RECORD Of Lease RequIRED BY RECORDING ACT.-A lease of land is a conveyance thereof within the meaning of section 1215 of the Civil Code, requiring a record of all conveyances of land and the interest thereby created in the lessee, though limited to a right to receive the products of the land, is equally as void against a subsequent purchaser of the land, with no notice of the lease by reason of the failure to have it recorded, as if were an unrecorded conveyance in fee.-Id.

3. EFFECT OF RECORD OF LEASE FROM LESSEE HAVING UNRECORDED LEASE-CONSTRUCTIVE NOTICE.-No constructive notice is given of the rights of a lessee under an unrecorded lease by reason of the record of a lease from him to a second lessee, and a grantee of the original lessor is not affected with constructive notice of the rights of such first lessee, although her deed is expressly subject to the second lease, no lessor being named in the deed.-Id.

4. OBJECT OF RECORDING ACT-RIGHTS OF STRANGERS TO TITLE-NOTICE.-The provisions of recording acts are for the protection of subsequent purchasers and encumbrancers from the common grantor, and do not affect the rights of strangers to the claim of title. Records are only constructive notice of a title of which they enable a party to obtain actual knowledge by means of a search. -Id.

LEASE (Continued).

5. ACTUAL NOTICE-BURDEN OF PROOF.-A lessee under an unrecorded lease who has leased to a second lessee, and claims an interest in the crops under such lease, has the burden of proving actual notice of his rights to a grantee of his lessor, who takes merely subject to the second lease, without being informed as to the name of the lessor of such lease-Id.

See CONVERSION; LANDLORD AND TENANT; Unlawful Detainer.

LICK TRUST. See Trust.

LIENS. See MECHANICS' LIENS; MORTGAGE; VENDOR'S LIEN.

MALICE.

1. ACTION-MALICIOUS INDUCING OF BREACH OF CONTRACT.-An action will not lie against one, who, from malicious motives, but without threats, violence, falsehood, deception, or benefit to himself, induces another to violate his contract with the plaintiff, with whom he does not stand in the relation of master and servant, or any other personal relation.-Boyson v. Thorn, 578.

2. MALICIOUS MOTIVES IMMATERIAL WHERE ACT IS NOT A LEGAL INJURY.-An act which does not amount to a legal injury cannot be actionable because it is done with a bad or malicious motive or intent. Malicious motives make a bad act worse, but cannot make that a wrong which in its own essence is lawful.—Id.

MANDAMUS.

1. EXECUTION-SALE-DELIVERY OF POSSESSION.-A purchaser of property at an execution sale, to whom the judgment debtor refuses to deliver the property, is not entitled to a writ of mandate to compel its delivery by the judgment debtor.-Gregory v. Blanchard, 311.

2. OFFICE OF WRIT OF MANDATE-TITLE NOT TRIABLE.-The writ of mandate is never employed for the purpose of trying title to property, whether the property be the right to land, or to an office, or to a franchise.-Id.

See BILL OF EXCEPTIONS, 3, 6; MUNICIPAL CORPORATIONS, 11; PLACE OF
TRIAL, 4, 8.

MARRIED WOMEN. See HOMESTEAD, 12; HUSBAND AND WIFE.

MASTER AND SERVANT. See NEGLIGENCE, 21-24.

MEASURE OF DAMAGES. See DAMAGES.

MECHANICS' LIENS.

1. LIEN UPON PART OF BUILDING-REMODELLING OF BUILDING UPON Part of Lot -NEW BUILDING.-The rule that a lien cannot be claimed upon part of a building does not apply where liens are claimed for labor and materials furnished in the improvement and construction of additions to a building upon part of a lot, though the contract included the erection of another new building upon another part of the same lot, upon which other liens are claimed.-Brunner v. Marks, 374.

2. FORECLOSURE-DESCRIPTION OF LOT-ADMISSIONS OF PLEADINGS EVIDENCE.Where the complaint upon foreclosure of the liens upon the remodeled building describes it as situated upon the entire lot, and its allegation in that respect is not denied, no issue is raised as to whether or not the lien covers an entire building or only a part thereof, and the defendant cannot introduce evidence against his admission.-Id.

حميل

MECHANICS' LIEN (Continued).

3. IMMATERIAL VARIANCE BETWEEN CLAIM OF LIEN AND COMPLAINT.-In such case, the fact that the claims of lien described the building remodeled as situated upon forty-eight feet of the lot, and the complaint described the building as situated upon the entire lot, causes no material variance.-Id.

4. DESCRIPTION IN CLAIM OF LIEN-IDENTIFICATION.-The description of the land upon which a structure is erected, required to be set out in a claim of lien thereon, is not a technical description, and is demanded only for the purpose of identification.-Id.

5. LAND FOR "CONVENIENT USE AND OCCUPATION OF BUILDING CONSTRUCTION OF CODE-PURPOSE AND USE OF BUILDING.-Section 1185 of the Code of Civil Procedure, which provides that the land upon which a building is erected, “together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof," is subject to a lien therefor, should be construed to mean such space or area of land as is necessary to the enjoyment of the building for the purpose in view in its construction; and the ises to which it is to be put must determine the quantity of land necessary to the convenient use and occupation of the building.-Tunis v. Lakeport Agricultural Park Association, 285.

6. RACE TRACK-HOTEL UPON FAIR GROUNDS.-A race track covering about sixty acres of ground, with its training stables, grand stand, corrals, and other improvements belonging to an Agricultural Park Association, and situated upon its Fair Grounds tract, is not necessary to the convenient use and occupation of a building erected for a hotel, club-house, and saloon upon such Fair Grounds tract, and cannot be made subject to a lien for the erection of such building.Id.

7. STATUTORY RIGHT.-The lien of mechanics and others on buildings, and the land upon which they are erected, for labor and materials, is the creation of statute, and the statute creating it must be looked to, both for the right to such lien and the mode by which it can be secured.-Spinney v. Griffith, 149.

8. CONSTITUTION NOT SELF-EXECUTING. The provision respecting the liens of mechanics, material men, artisans and laborers, contained in section 15 of article XX. of the constitution, is not self-executing, and is inoperative except as supplemented by legislation.—Id.

9. BUILDING CONTRACT NOT RECORDED CONTRACTOR NOT ENTITLED TO LIEN.Where a contractor entered into a written contract with the owner of land for the erection of a building thereon for a price exceeding one thousand dollars, but failed to file it for record, it is wholly void, and cannot be made the basis of a subsequent claim for a lien thereunder in favor of the contractor.-Id. 10. LIEN

DENIED BY STATUTE-RECOVERY UPON COMMON COURTS.-Under section 1183 of the Code of Civil Procedure, providing that where the written contract is wholly void for want of filing, the labor done and materials furnished by all the persons therein named, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and that they shall have a lien for the value thereof, the contractor is disallowed a lien by the terms of the statute, and cannot claim it as an incident of or corollary to his right to recover upon the common-law courts of quantum meruit for services, and quantum valebat for goods, wares, and merchandise sold and delivered.Id.

MINES AND MINING.

1. MINING LOCATION-VALIDITY-LAP UPON AGRICULTURAL CLAIMS-SUFFICIENCY OF WORK ON PRIVATE LAND.-Where a mining location was so made that one