have thought there were millions for him, he applied to White, the party for whose benefit this suit is brought, for aid in this struggle, who thereupon advanced him money to enable him to assert his rights in court and maintain himself generally, upon no other security for its repayment with legal interest than an assignment of his interest in the firm of Ben Holladay & Co., then involved in litigation.

The option or alternative contained in the writing of February 10, by which White was given the election to take, instead of his money and interest, one-half of the railway property that might be awarded to Elliott in the suit with Holladay and Emmett, after deducting the trifling sum of a million dollars' worth of the company bonds for Elliott's individual use and one hundred thousand dollars more for his private counsel, though undoubtedly champertous, as involving a division of the field or product of the litigation, is a distinct agreement from that involved in this suit. The assignment under which the plaintiff seeks to enforce the decree against Ben Holladay was not given to secure the performance of this option, but the repayment of the money loaned. The contingency upon which the right to exercise this option depended never occurred, for Elliott never obtained "the possession" of any of said property or notified White thereof. This suit is brought to enforce the assignment given by Elliott as security for money loaned him under the writing of February 10, which he has failed to repay. And while it does, in my judgment, steer clear of the champertous option clause, its maintenance does involve the recognition of the agreement under which the money was advanced to Elliott, to enable him to make good his defense in the suit with his partners; and if this is void for maintenance the assignment falls with it. The assignment or security stands no better, in this respect, than the debt or contract out of which it arose and for which it was given.

It does not appear that the courts of the state have ever passed on the question whether the old English law of maintenance is in force here as a part of the common law or not.

The evident modern drift of both the English and American courts is in the contrary direction, and the old doctrine of maintenance, which includes champerty, is treated as something belonging to_the past and not suited to the circumstances of this age: Findon v. Parker, 11 Mes. & Welsh, 679; Wright v. Tibbitts, 1 Otto, 252; 6 Otto, 416; Small v. Mott, 22 Wend., 405; Thalhimer v. Brinkerhoff, 3 Cow., 643; Richardson v. Rowland, 40 Conn., 570; Sedgwick v. Stanton, 14 N. Y., 291; Mathewson v. Fitch, 22 Cal., 93; Hoffman v. Vallejo, 45 Cal., 566.

In Small v. Mott, supra, Chancellor Walworth says, "that most of the absurd rules relative to maintenance, which are found in the early reports of the English courts of justice were founded on the broad and sweeping provisions of the statutes" of Edward I and III, and the second Richard. For instance, chapters 25, 28 and 30 of 3 Edward I prohibited the king's officers, such as clerks,

sheriffs, justices, or "stewards of great men," from taking part in quarrels depending in the king's courts or maintaining any suits "hanging "in such courts for lands or other things on part or profit thereof.

There is no statute in Oregon against maintenance, and by express enactment a valid conveyance may be made of lands in the adverse possession of another, while choses in action may be sued on in the name of the assignee: Or. Laws, 516, sec. 8, 110, sec. 27. It is not likely that this contract would be held void here for maintenance. But it is not necessary for this court to anticipate the action of the state courts on this question.

This contract was made in California and in contemplation of law was to be fulfilled or performed there. It has been held in that state since 1863 that there is no law there against any form of maintenance: Mathewson v. Fitch, and Hoffman v. Vallejo, supra. And the contract being valid there, is valid here: Story's Con. Laws, secs. 242 (1) 279, 280.

But it is contended that the assignment or security taken for the performance of this contract related to property in Oregon, and could only be fulfilled or enforced here, and therefore the contract for the loan ought to be considered as made here, and its validity tested by the law of Oregon. But the authorities are uniformly otherwise: Story's Con. Laws, sec. 287; De Wolf v. Johnson, 10 Whea., 443. In the latter case, Mr. Justice Johnson, speaking for the court, says: "Taking foreign security does not necessarily draw after it the consequences that the contract is to be fulfilled where the security is taken. The legal fulfillment of a contract of loan, on the part of the borrower, is repayment of the money, and the security given is but the means of securing what he has contracted for, which, in the eye of the law, is to pay where he borrows, unless another place of payment be expressly designated by the contract." The demurrer is overruled, and the defendants have twenty days. in which to answer.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

CITY AND COUNTY OF SAN FRANCISCO v. J. W. MACKEY.

November 17, 1884.

CONSTITUTION LAW-DOUBLE TAXATION.-The constitution of California does not authorize, but forbids, double taxation.

STOCK AND PROPERTY OF CORPORATION.-Taxing all the property of corporations to the corporation, and at the same time taxing the stock, which represents the property, to the holder, would constitute double taxation.

STOCK OF DOMESTIC CORPORATION-TANGIBLE PROPERTY IN ANOTHER STATE. - Shares of stock, owned by a citizen and resident of the state of Nevada, in a California corporation, having its principal place of business in California, but whose tangible property is all situate and taxed in Nevada, are not taxable to the owner under the constitution and laws of California, in the state of California. The situs of the stock, in such case, for the purposes of taxation, is the residence of the owner.

SITUS OF MONEY CREDITS AND OTHER SOLVENT CREDITS-TAXATION.-There being no statutory provision to the contrary, the situs of money credits, and other solvent credits, for the purposes of taxation, is the residence of the owner or creditor.

TAXATION OF RESIDENT OF NEVADA ON SOLVENT CREDITS.-A citizen and resident of Nevada is not taxable in California, under its constitution and laws, upon money credits and other solvent credits, not secured by mortgage, trust deed, etc., due from citizens, and residents of California.

McClure & Dwinelle, for the plaintiff.

B. C. Whitman, for the defendant.

SAWYER, CIRCUIT JRDGE. This is a demurrer to the amended complaint in an action to recover city and county, and state taxes, for the fiscal year 1880-81, assessed upon the capital stock of a large number of corporations, and upon solvent credits. A demurrer to the original complaint was sustained, on the ground, that the assessment is void, as being double taxation, and a violation of the state constitution: See opinion of the court, 3 W. C. Rep., 697. Leave to amend having been given, an amended complaint has been filed, and therein it is sought, by certain allegations, to obviate the objections to the original complaint, and to take the case out of the principle of the former decision. These new allegations, are, that the tax is assessed "on said shares of stock of companies severally incorporated under the law of, and having their principal offices in the state of California. That the aforesaid shares of stock, is and are, and each of them are, shares of stock of corporations, whose entire tangible property was situated in the state of Nevada; and that the entire property of said corporation was not assessed for said fiscal year 1880-1881." The allegation "whose entire tangible property was situated in the state of Nevada," at least, as to several of the corporations named, is, notoriously, and, manifestly, not true in fact; as, for example, as to the Nevada Bank, the San Francisco Gas Company, and other companies located at San Francisco. But assume the allegation to be true, for the purposes of the demurrer, the question arises, do the averments quoted, in connection with the other allegations of the complaint, show a good cause of action? In my judgment they do not.

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Article XIII, section 1, provides that "all property, in the state, * * * shall be taxed," etc. It does not authorize the taxation of property not in the state. And section 10, of the same article, provides, that, "all property shall be assessed in the county, city, city and county, town, township, or district, in which it is situated." And the statute follows the constitution in this respect (P. C., sec. 3,628). They do not authorize an assessment, except at the situs of the property. And section 3,627, of the Political Code, as it stood in 1880, (Stat., 1880, 6,), when this assessment was made, recognizing this principle, of the constitution and laws, and the inadmissibility of double taxation, provided, with reference to the stock of corporations, having their principal place of business in this state, that, "the proportionate value, of the capital stock of corporations, * having their principal place of business in this state, for the purposes of assessment, and taxation, shall be its

* *

market value, deducting therefrom the value of all property assessed to them in this state, or elsewhere, of which such capital stock is the representative." Thus, the constitution does not authorize the taxation, in California, through the medium of its stock, of the tangible property of a California corporation, situate and taxed in the state of Nevada; but, by stating what property should be taxed, and limiting it to property within this state, and limiting the assessment to the particular district in which the property is situated, by plain and necessary implications, excludes it from taxation. So, also, the provision of the political code cited, in express terms, excludes taxation through the medium of the capital stock of the corporation, of all the property of the corporation, of which the capital stock of the corporation is the representative, assessed, either in this state, "or elsewhere."

Now, all the tangible property of all these corporations, according to the allegations of the complaint, which, for the purposes of the demurrer, are taken to be true, is situate in the state of Nevada, and beyond the jurisdiction of California, and, presumably, nothing to the contrary being shown, was taxed under the laws of Nevada to raise revenue for the purposes of the state, and local governments of that commonwealth. The laws of Nevada, of which this court takes notice, require all property in that state to be taxed. It is true, that, to the allegation, "whose entire tangible property was situated in the state of Nevada," is added, "and the entire property of said corporations was not assessed for said fiscal year, 1880-1881." But this is, only, an allegation that it was not assessed in California for "said fiscal year." The state of Nevada had no relation to said fiscal year 1880-81, for which the assessment sued for was made, and the allegation is limited to the particular assessment for the particular fiscal year, upon which the suit is brought. No other is even alluded to in the complaint. This allegation as to the property not assessed, must, also, be construed with reference to the other allegations of the complaint, and, as referring only to the tangible property of the corporation, alleged to be situate in the state of Nevada. It is not, therefore, an allegation that the property was not assessed, "elsewhere," or, that any other property of the corporation was not assessed; and, doubtless, no such allegation could be, truthfully, made. It must be presumed, that the allegation was made as favorable to the complainant, as the facts would justify. Such is, always, the legal presumption in respect to the allegations of pleadings. It is, clearly, insufficient in this particular, to take the case out of the rule heretofore adopted in this case, and as established in Burke v. Badlam, 57 Cal., 594, as to all property situated in this state; and that situate, and taxed, "elsewhere," is not taxable at all; and, also, insufficient to bring it within the terms of the constitution, and the statute authorizing the assessment of the tax. The property, as such, alleged to be not taxed, is without the jurisdiction of the state, and cannot be, lawfully, taxed as tangible property, at all, in the state of California. It cannot be reached.

as tangible property, and it is sought to reach it, through a taxation of the shares of stock representing it, of the corporation organized and existing within the jurisdiction of California. But this interest, as a share of the capital stock, is incorporeal and intangible; and it has no situs apart from the person of the owner. The defendant appears by the record, and that fact is now inconvertible, to be a citizen of the state of Nevada. It is on that ground, alone, that this court has jurisdiction of this case. In the absence of any averment to the contrary, he is presumably a resident of the state of which he is a citizen. There is no averment to the contrary, and we all know, as a matter of fact, that an averment could not be, truthfully, made that defendant was a resident of California, during the fiscal year 1880-81. We all know, as a historical, and publicly notorious fact, that defendant was not a resident of California during that fiscal year. It is as publicly notorious and well known a fact in California and Nevada, as that President Arthur was not a resident of California during that year.

The interest of defendant, in the capital stock of the corporation being incorporeal and intangible, and having no situs apart from the person of the owner, and he being a non-resident, without the jurisdiction of the state, and the tangible property of the corporation of which the capital stock is the representative, being, also, situate outside of the state, it was not, without some express constitutional or statutory provision making it so, if any such valid provision there could be, subject to the jurisdiction of the state, or to taxation within the state, through the medium of the shares of stock in the corporation, and, we have seen, that the provisions of the constitution and statute do not reach the case, as alleged in the complaint, there being no such express, unqualified_provision. This view is fully sustained by the State Tax on Foreign Bonds case, 15 Wal., 300, and the cases therein cited. The case of San Francisco v. Fry, 11 Pa. Coast Law Jour., 393, cited and relied on by complainant, was for taxes against a citizen, and resident of California, over whom the state had jurisdiction, assessed for the year 1876-7, before the amendments of 1880, under which the present tax was assessed. And such, also, was the case in San Francisco v. Flood, 1 W. Co. Rep., 567, also, cited. In San Francisco v. Fry, as in the cases therein cited, as authority, the court rests its decision, sustaining the tax assessed, upon the stock of the corporation, whose tangible property was in the state of Nevada, upon the fact, that the owner of the shares was a citizen of California, and that the situs of this intangible property followed that of the owner, and, was, therefore, in contemplation of law, situate within the jurisdiction of, and taxable in the state of California. The court quotes from the Massachussetts case cited, this passage. "Thus shares in foreign railroad corporations held by citizens of this state, are fully taxed here, and no deduction is made for any taxation to which the corporations are subject in the states where they are situated. So it is in regard to shares held by our citizens in banks,