Pacific Coast Law Journal.

VOL. 2.

SEPTEMBER 14, 1878.

No. 3.

Current Topics.

DNOB writes us: "In Ex Parte William Smith, the Supreme Court say: 'The Code does not provide for the issuing of an execution for the enforcement of an order of distribution.' (P. C. L. J., Vol. 2, page 4.) Section 1649 of the Code of Civil Procedure reads as follows: '1649-When a decree is made by the Probate Court for the payment of creditors the executor or administrator is personally liable to each creditor for his allowed claim, or the dividend thereon, and execution may be issued on such decree as upon a judgment in the District Court in favor of each creditor, and the same proceeding may be had under such execution as if it had been issued from the District Court. The executor or administrator is liable therefor on his bond to each creditor.'"

Lynch vs. The Los Angeles County Bank, decided August 26, 1878, was an action brought by the plaintiff to recover, an alleged deposit. The referee's findings show that on November 16, 1875, the plaintiff left with the defendant, a banking-house in Los Angeles, for collection, a check or sight draft drawn by Philips & Chandler, of Oakland, in this State, on themselves, payable to plaintiff or order. It was indorsed by plaintiff to defendant for the purpose of collection. On the same day the defendant sent the draft to the Anglo-California Bank (Limited) indorsed for collection and was received by said bank on November 19, 1875; and on the same day it was indorsed by said bank and sent to the Union National Gold Bank of Oakland, its agent or corre

spondent. That said Union National Gold Bank of Oakland retained said draft from the 19th or 20th of November, without presenting it, until the 29th day of November, when it was presented and payment was refused and the draft protested. The Anglo-California Bank informed the defendant upon receiving the draft that it had credited the defendant's account with the amount of the draft, less 75 cents for collection fees; and the defendant, believing that the draft had been collected, notified the plaintiff that the amount was in defendant's bank at his disposal, but the plaintiff left the amount with defendant as a term deposit, and the defendant gave him a pass - book in which the sum was placed to his credit as a depositor. The referee further found that between the 12th and 27th days of November the said firm of Philips & Chandler paid collections to the Union National Gold Bank in the ordinary course of business. That the first protest of their paper of which the bank had notice was on one of the last days of November. The firm suspended about the last of that month. That the omission of said Union National Gold Bank of Oakland to present said check for payment between the 21st and 27th of November was on account of the absence of Philips & Chandler from Oakland and their failure to answer a notice sent them, and that no instructions were received with said draft as to the manner of presenting it. That the collection was undertaken at plaintiff's risk. That the pass-book was issued by mistake of fact. That defendant notified plaintiff immediately after it was advised, which was after December 2d, that the draft was not paid and demanded the pass-book.

Upon these findings the referee and court gave judgment for the plaintiff. Affirmed.

IN State vs. Lockwood (43 Wis.) it is held that the right of jury trial in a criminal case can not be waived; and a trial by the court alone will not support a judgment or a report of questions of law arising in the case.

In this case certain questions of law arose, and the court being doubtful in its opinion as to them, and the defendant

desiring that such questions of law be referred to the higher court, and the defendant having waived a jury, the court proceeded to hear the testimony, and found the defendant guilty. The defendant excepted.

RYAN, C. J., says: "A plea of not guilty to an information or indictment for crime, whether felony or misdemeanor, puts the accused upon the country, and can be tried by jury only. The rule is universal as to felonies; not quite so as to misdemeanors. But the current of authority appears to apply it to both classes of crime; and this court holds that to be safer and better alike in principle and practice. The right of trial by jury upon information or indictment for crime is secured by the Constitution, upon a principle of public policy, and can not be waived. (Proffatt's Jury Trial, Sec. 113; Cooley's Const. Lim., 319, 410.)" We are pleased to see Mr. Proffatt's work on jury trial cited with approbation by the learned Judge who delivered the opinion in this The Attorney-General's brief cites Proffatt on Jury Trials, Sec. 113, and 48 Cal. 257.

case.

THE Supreme Court of the United States, in Dial vs. Reynolds, held that no court can grant an injunction to prevent proceedings in a State Court, except under the Bankrupt Act.

A person who claims adversely to the mortgagor and mortgagee can not be made a party by the complainant to litigate and settle his rights in a foreclosure mortgage suit.

Supreme Court of California.

JULY TERM.

[No. 5,545.]

[Filed September 3, 1878.]

WILLS, RESPONDENT, VS. AUSTIN, APPELLANT.

STATE TAX FOR 1872-3-SECTION 3696 POLITICAL CODE UNCONSTITUTIONAL AND VOID CONSTRUCTION OF STATUTES.-In Houston vs. Austin (47 Cal. 646) it was held that so much of Section 3696 as authorized the State Board of Equalization to make an allowance for delinquency in the collection of taxes was unconstitutional and void. Where there are different portions of a statute dependent upon each other, and some are unconstitutional, the whole must fall; and tested by this rule, the whole of Section 3696 authorizing a levy of a State tax for 1872-3 was void per se. DURESS-TAXES PAID UNDER PROTEST-WHEN DEEMED VOLUNTARY.-Section 3786 Political Code requires the Tax Collector's deed to recite that the land was sold for taxes, giving the year of the assessment. So that a Sheriff's deed for taxes for the year 1872-3 would have been void on its face, and could not have imposed a cloud on any title; and any threat by the Tax Collector to sell would not amount to legal duress, and payments made under such circumstances are voluntary and can not be recovered.

TAX SALES AND DEEDS-WHERE PART OF TAX IS VALID AND PART ILLEGALWHOLE SALE AND DEED VOID.--If land be sold for taxes, a part of which is valid and a part illegal, the whole sale and tax deed will be void.

Appeal from Fifteenth District Court, County of San Francisco.

This action was brought to recover $351, paid to the defendant as Tax Collector for the City and County of San Francisco, as taxes on certain real estate, for State and city and county purposes for the fiscal year 1872-3, ending June 30, 1873. The payment was made under protest, and judgment was asked and rendered by the court below for the amount paid, with interest.

The complaint charges that the defendant, in his official capacity, claimed and asserted that said taxes were legally assessed and levied, and threatened plaintiff that unless said. taxes were paid on or before the first Monday in January, 1873, he, the defendant, would add thereto the sum of 5 per

cent.; and further threatened that he would return said assessments and taxes as delinquent, and would advertise the property on the delinquent list, and sell the same for nonpayment of taxes; and in order to avoid the imposition and advertisement and sale of the property, did pay the said amount to the defendant, under protest.

W. C. Burnett, attorney for defendant.

If Section 3696 of the Political Code is unconstitutional, the fact of the invalidity of the State tax would have appeared upon the face of the tax deed, and if offered in proof would be ruled out as not bearing prima facie evidence that the State tax was levied in accordance with law; and there being, therefore, no power in the Tax Collector to cloud the plaintiff's title, he could not do any act amounting to compulsion or coercion.

Cowles & Drown, attorneys for respondent.

PER CURIAM.

If the plaintiff's land had been sold by the defendant as Tax Collector for the alleged taxes, and a tax deed had been made to the purchaser, would the deed have been void on its face? For if so, it would have imposed no cloud on the plaintiff's title, and the threat to sell would not, under such circumstances, have amounted to legal duress. (Bucknall vs. Story, 46 Cal. 589.) The only authority in law there was for the levy of a State tax for the fiscal year 1872-3 is to be found in Section 3696 of the Political Code as it then stood. That section was under review by this court in the case of Houghton vs. Austin (47 Cal. 646), and it was decided that so much of the section as authorized the State Board of Equalization, in determining the rate of the State tax, to make an allowance for delinquency in the collection of taxes, was unconstitutional and void. The exigency of the case did not require the court to decide, and it did not decide whether the whole section was void on its face. But we think the logical result of the decision is, that the whole section was unconstitutional and void per se. The clause requiring an allow