to deliver a duplicate assessment to the tax collector, and the law of 1880 provides that a certified copy of such duplicate shall be prima facie evidence of the plaintiff's right to recover" in any action that may hereafter be commenced." Section 3,738 of the political code authorizes the board of supervisors of any county, in their discretion, to dispense with the making or use of any duplicate assessment book, and in all cases where such duplicate assessment is referred to, "it shall be lawful to use and consider the original assessment book in all the requirements of every part of this code referring to the same," etc. An order to dispense with the duplicate was in fact made by the supervisors of Lake county. The words used in the act of 1880 are the duplicate assessment," and there can be no doubt these words referred to the duplicate provided for by the political code, but the same code authorizes the duplicate to be dispensed with, and when dispensed with gives equal effect to the original. The law of 1880 was passed in view of the existing provisions of the code, and it would seem too narrow a construction to say it did not make the original (when the duplicate is dispensed with) prima facie evi

dence.

7. The judgment allows two per cent. per month upon the amount of taxes allowed from December 28, 1880. This is error. Manifestly section 3,803 of the political code refers to the "delinquent taxes" mentioned in the sections immediately preceding, and which remain unpaid until the third Monday of March: section 3,797. In the case at bar the action was commenced on the second day of March.

8. Comparing the act of 1880 and sections 7 and 11 of the act "concerning county officers of Lake county," etc.: Stats. 1875-6, p. 599, we think the district attorney was entitled to recover his percentage.

9. The judgment is irregular, in that the judgment is for a gross sum, not distinguishing between the amounts due the state and county respectively: Sacramento v. C. P. R. R. Co., 10 Pac. C. L. J., 315-16. It is not a judgment which can be construed sufficient in form: Id.

Judgment and order reversed and cause remanded for a new trial. SHARPSTEIN, J., Ross, J., MORRISON, C. J., and MYRICK, J. concur.

THORNTON, J. I concur in the judgment and in the views expressed in the foregoing opinion, except that I think there was evidence that the corporation was known by the name by which it was assessed.

No. 20,033.

EX PARTE FINLEY on HABEAS CORPUS.

Filed October 11, 1884.

PETITION FOR A DISCHARGE ON HABEAS CORPUS Denied.

Application for a discharge on habeas corpus, before Morrison, Chief Justice.

C. B. Darwin for the petitioner.

J. D. Sullivan, contra.

MORRISON, C. J. Petitioner prays to be discharged on habeas corpus. It appears, from the return of the officer having the defendant in custody, that he is held under an information charging him with forgery.

I do not deem it a proper exercise of authority to discharge the defendant under the circumstances of the case. Writ dismissed, and prisoner remanded.

No. 8,263.

DONOHOE v. MARIPOSA LAND AND MINING COMPANY ET AL.

In Bank. Filed October 15,1884.

WHERE THE TRANSCRIPT ON APPEAL CONTAINS NO INDEX, as required by the rule, the appeal may be dismissed.

APPEAL from a judgment of the superior court for the city and county of San Francisco.

Winans Belknap & Godoy, S. Heydenfeldt, Jr., and J. W. Brumagim, for the appellants.

Doyle, Barber & Scripture, for the respondents.

THE COURT, No index is prefixed to the transcript, which contains over eight thousund folios. Under the rule the court is authorized to dismiss the appeal; but,

The submission of the cause is set aside, with leave to appellants to prepare and print proper index to be prefixed to each copy of transcript, within ten days.

The case of Lake v. Lake, recently decided by the supreme court of Nevada, and reported in the last number of the West Coast Reporter,' involves a very interesting and important question: Where a husband has only his own separate estate at the time of marriage, and this separate estate he uses as the capital or foundation of his business, and carries on a business during the marriage upon such capital, and by his labor, skill, management, and enterprise in carrying on such business, the whole amount of his property is increased, perhaps largely increased, what portion of this increase, at his death, should be deemed his separate estate, and what portion, if any, should be deemed community? Of course, the original capital, or an amount equal to it, would undoubtedly remain his separate estate. Can any general rule, reasonable and just, and capable of being practically applied to all conditions of fact, be laid down, which shall furnish an answer to this question? The supreme court of Nevada in the case above mentioned, have adopted a general rule as follows: "The profits of separate estate which accrue mainly from the property rather than from the joint efforts of husband and wife, or either of them, belong to the owner of the property, although the labor and skill of one or both of the spouses may have been given to the business. On the contrary, if the profits come mainly from the efforts or skill of both, they belong to the community." In this case, the husband owned a hotel as his separate estate; and, applying the foregoing rule, the court held that the proceeds resulting from the ordinary use of the hotel, either from renting it, or from carrying on the business himself, belonged to the husband as separate estate.

With all respect, this rule, in my opinion, is too vague as a practical guide to the courts; and would often work injustice and violate the theory which underlies the law as to community property.

The civil code says: "§ 163. All property owned by the husband before marriage, and all that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate property." In § 162, a similar definition is given of the wife's separate property. By § 164, "All other property acquired after the marriage, by either husband or wife, is community property."

All the decisions which have discussed the nature of community property, agree in stating this fundamental theory;-that all property, not falling within the definition of separate property, acquired after the marriage by the labor either of the husband or of the wife, is nevertheless deemed to be acquired by the labor of both the spouses. Upon this theory the wife of the mechanic is legally deemed to contribute her share of labor, skill, and industry in earning his wages, which are therefore community property. The wife of a lawyer or of a physician is legally regarded as jointly aiding in earning his professional increase. The wife of a clergyman, professor, or public officer, is legally regarded as earning a joint portion of his salary. The wife of a merchant or of a farmer is legally regarded as assisting in his business and as contributing to increase its profits. This theory is applied without exception, whether as a matter of fact the wife does assist in carrying on the husband's business and in thus actually increasing its proceeds, or whether her attention is solely confined to the domestic affairs of the household, or even when her attention is solely directed to spending the money which her husband makes. This theory should never be lost sight of. The code nowhere makes the community property to depend upon the fact that the joint labor of the two spouses actually produced it; their joint labor may be theoretical as well as actual.

In Lewis v. Lewis, one Lewis married in 1854, then possessed of separate property in cattle, horses, and money to the amount of $20,000. He died in 1859 possessing cattle, horses and money valued at $40,000. His sole business at his marriage and down to the time of his death, was that of dealing in such stock. Of the stock owned by him at the time of his death, a portion, worth about $4,000, consisted of certain cattle which he owned when married; the residue consisted of the increase of stock owned at the time of his marriage, and of other stock bought with the proceeds of the sale of his original stock, or with the proceeds of the sale of the other stock by which the original stock had been replaced. The court held that as the deceased was engaged in no other business, the fair inference was, that the community property was the difference. between the original value of the property owned by him at his marriage, and the value of the property possessed by him at the time of his death, after deducting the amount of the community debts. In other words,

218 Cal., 654.

all the increase made upon his separate property as a capital, was declared to be community property.

3

This increase was held to be community property, because under a statute, existing at that time, "all the rents, issues, and profits," of separate property, were declared to become community property. But this provision of the statute itself, had been held unconstitutional and void, so far as it affected the "rents, issues, and profits" of the wife's separate estate, as early as the case of George v. Ransom. If the decision in the case of Lewis v. Lewis, is based upon the notion that the rents, issues, and profits of the husband's separate estate became community property, under the then existing statute, it certainly would not be law under the code, which expressly declares that the " rents, issues, and profits" of the husband's separate estate continue to be his separate property."

I cannot believe, however, that the phrase, "rents, issues, and profits," as thus used in the code, is intended to include any of the increase and products, made by a husband in carrying on a business, in which he is constantly buying and selling and exchanging, and is using his own labor and skill in producing the increase from his separate property, as his original capital. Otherwise there could hardly ever be any community property, where the husband had a separate estate at his marriage, if the provision of the code should be so construed. The phrase, "rents, issues, and profits," is undoubtedly a broad one; but its true meaning is only to be ascertained by a reference to other parts of the general system, established by the code, and especially by a reference to the limitations, imposed by the provisions, concerning community property.

Suppose a man, at the time of his marriage, is engaged in a mercantile business, owning a small capital stock as his separate estate, and he goes on conducting his business through life, and amasses a large fortune, by the ordinary means in which such business is carried on. Is it to be said that all of this increase, at the time ot his death, is to be considered as the "rents, issues, and profits" of his original separate estate, and, therefore, to be his separate property, in which his wife has no certain interests? The more consistent view, and the one more in harmony with other clauses of the code, seems to be, that when a husband has a separate property at the time of his marriage, and by his skill and labor, in carrying on a business, trade, or occupation, exerted upon this separate property as a capital, enlarges and adds to the total amount, this increase is not "the rents, issues, and profits" of the separate estate, within the meaning of the code, but some portion of it, at least, becomes community property; and the question is not whether 15 Cal., 322.

*Civil Code, § 163.