JUDGMENT (Continued).

pronounced by the court, regardless of the unwillingness of the plaintiff to accept the statements of the answer.-Rankin v. Newman, 602.

2. JUDGMENT UPON PLEADINGS-WHEN PROPER.-Where a complaint states a cause of action, and proof of the affirmative averments in the answer would be immaterial, and the denials of the answer are merely of matters of law, it is proper to render a judgment for the plaintiff upon the pleadings.-Heydenfeldt v. Jacobs, 373. 3. STATE SCHOOL LANDS-FORECLOSURE OF CERTIFICATE OF PURCHASE SERVICE OF SUMMONS-VOID JUDGMENT.-A judgment of foreclosure of a certificate of purchase of state school land rendered without personal service upon the holder of the certificate, and upon a publication of summons not based upon any affidavit or order of publication, is void.-People ex rel. Lynch v. Harrison, 541. 4. POWER TO SET ASIDE JUDGMENT.-The court has no power to set aside a judgment foreclosing a certificate of purchase upon evidence not found in the judgment-roll, where more than six months have elapsed since its rendition.-Id.

5. ACTION TO CANCEL SECOND CERTIFICATE ADMISSIONS OF INVALIDITY OF JUDGMENT.-In an action brought by the people upon relation to the holder of a patent from the state to school land, the certificate of which was foreclosed, upon publication of summons, to cancel a second certificate of purchase of the same land issued to another, where the complaint alleges that the holder of the certificate foreclosed never appeared in the foreclosure action, nor was summons ever served upon him personally, nor was an affidavit ever made by any one to obtain an order of publication of summons, nor was any order ever made in said action authorizing the service of summons by publication, and none of these allegations are denied in the answer, upon appeal upon the judgment-roll from a judgment canceling the second certificate of purchase, the judgment of foreclosure appears upon the judgment-roll appealed from to have been void.-Id.

& IMPEACHMENT OF JUDGMENT-SERVICE OF SUMMONS-PROOF OF INVALIDITY. Although a judgment not void upon its face cannot be impeached by evidence showing a want of service of summons, if such evidence is objected to, yet where evidence is admitted to that effect without objection, or the parties stipulate or admit that there was in fact no service of summons, it is the duty of the court to declare the judgment void, as a matter of law, upon the admitted facts.-Id.

7. ACTION TO SET ASIDE DECREE ANNULLING MARRIAGE-SERVICE OF SUMMONS-PRESUMPTION-BURDEN OF PROOF.-In an action to set aside a decree annulling a marriage, upon the ground that the defendant in the action annulling the marriage was not served with summons, and had no notice of the suit, and never appeared therein, and that the judgment was procured by the fraudulent practice of the plaintiff in the action, the mere production of the judgmentroll, showing that a summons was issued, but containing no proof of service, and no memorandum of default, and no appearance for the defendant except by a guardian ad litem appointed by the court, and no recital in the record to the effect that summons had been served, does not raise a presumption that there was no jurisdiction of the court over the person of the defendant against whom the judg

JUDGMENT (Continued).

ment was rendered; but the presumption is to the contrary, that the court did have jurisdiction of the person of the defendant, and this presumption must be overcome by proof, the burden of which is cast on the plaintiff in the action to annul the decree, that summons had not in fact been served in the former action.-Eichhoff v. Eichhoff, 42.

8. DIRECT ATTACK UPON JUDGMENT-INDIRECT ATTACK-EQUITABLE SUIT. It is only upon a direct attack by appeal from a judgment by default that there is no presumption in favor of the existence of any fact essential to the jurisdiction of the court over the defendant; but, when an action is brought in a court of equity to set aside a judgment at law, the attack, although not collateral, is always indirect, and such an attack does not question or dispute the effect of the judgment as an adjudication, but seeks to be relieved from its operation upon equitable grounds.-Id.

See APPEAL, 1, 2, 4, 7, 11, 12; ATTORNEY AT LAW, 1; DIVOICE, 1-3; ESTATES OF DECEASED PERSONS, 7, 8, 10; EXECUTION, 1; FINDINGS. 2, 3, 5; INSOLVENCY; MANDAMUS, 2, 3; MORTGAGE, 9-11; MUNICIPAL CORPORATIONS, 24; NEW TRIAL, 1.

JURISDICTION.

See INSURANCE, 6; MANDAMUS, 1; MUNICIPAL CORPORATIONS, 8, 9; STATUTE OF LIMITATIONS.

JUSTICE'S COURT.

1. JUSTICE'S COURT OF SAN FRANCISCO-SUMMONS-SIGNATURE. A summons issued from the justice's court of the city and county of San Francisco is properly issue by the justice's clerk, upon the order of the presiding justice, and it need not be signed by the justice of the peace, as provided by section 844 of the Code of Civil Procedure.-Helms v. Dunne, 117.

2. CONSTRUCTION OF CODE-SPECIAL LEGISLATION.-Chapter V, article I, of title I of the Code of Civil Procedure is not special legislation, and section 91 of that code contains a modification of the rule declared in section 844 regarding the proper party to sign a summons in the justice's court of the city and county of San Francisco.-Id.

3. DESIGNATION

OF JUSTICE'S CLERK-TECHNICAL

VARIANCE.-Al

though the proper designation of the officer authorized to sign and issue summons, under section 95 of the Code of Civil Procedure, is "justice's clerk," yet a technical variance in a signature to a summons by that clerk by the designation of himself as "clerk of the said court," viz., the justice's court, is a variance so slight and unimportant as to involve no question of jurisdiction.—Id. 4. MISTAKE IN RECITAL OF NAME OF PRESIDING JUSTICE.-Though the summons may upon its face recite that it was issued at the order of the presiding justice, there is no statutory requirement to that effect, and the recital is not conclusive as to the fact, especially where a mistake appears in the recital of the name of the person who was at the time presiding justice; and it may be proved that the order was in fact made by the presiding justice, though he is another person than the one whose name is recited in the sum mons.-Id.

KINDERGARTEN. See SCHOOLS, 2-6.

LAND. See SCHOOL LANDS.

LANDLORD AND TENANT.

1. LEASE-POSSESSION-DAMAGES-JUDGMENT IN EJECTMENT-RES ADJUDICATA.-In an action for damages by a lessee for failure of the lessor to put the lessee in possession of the leased premises, owing to the existence of a prior lease, a judgment in favor of the lessor in an action of ejectment brought against the prior lessee and the plaintiff in the damage suit, who entered under contract with the prior lessee for the purchase of his improvements, and who pleaded his right of possession in the ejectment suit, may be pleaded and proved as a conclusive adjudication against the plaintiff in the damage suit, and is a bar to recovery by the lessee therein.Flynn v. Hite, 455.

2. ADJUDICATION AGAINST VALIDITY OF LEASE-FAILURE OF EVIDENCE. The validity of a lease which might be shown in evidence in support of a plea of right of possession in an action of ejectment is adjudged against by the recovery of the plaintiff in the ejectment suit; and the failure of the defendant to offer the lease in evidence in support of the plea cannot affect the conclusiveness of the judgment against his right to recover damages for not being permitted to occupy the premises recovered in the ejectment suit. -Id.

3. ESTOPPEL-ENTRY UNDER TENANT-RIGHT OF LESSEE.-Although one who enters under a tenant cannot deny the title of the landlord without surrendering possession, yet if he enters under a valid lease he is not estopped from defending his possession under it, but the landlord is estopped in such case from denying the right of the lessee to possession under a lease expressly conferring such right.-Id.

4. UNLAWFUL DETAINER-PARTIES-ACTION BY EXECUTORS OF DECEASED LESSOR.-The executors of a deceased lessor may bring an action of unlawful detainer against his lessees, who hold over after written demand for the payment of rent or for the delivery of possession of the demised premises.-Knowles v. Murphy, 107. 5. ESTATES OF DECEASED PERSONS-EXECUTORS SUCCESSORS TO ESTATE OF LANDLORD-NOTICE TO TENANT.-While engaged in the administration of the estate of a deceased person, the executors are to be regarded as the successors in estate of the landlord, for the purpose of giving the notice authorized by section 1161 of the Code of Civil Procedure, and enforcing against the tenant who is guilty of an unlawful detainer the remedies authorized by that code.-Id. 6. PLEADING SURPLUSAGE.-Where the complaint in an action of unlawful detainer sufficiently states a cause of action, and sets forth the terms of the lease and the period during which the defendant had been in default in the payment of the rent prior to the date of the demand, and showing that the rent was payable in advance, the averment that the amount in default covered a period which extended beyond the date at which the demand was made, or beyond the date when the last installment accrued, is merely surplusage. -Id.

7. MANNER OF SERVICE OF NOTICE-GENERAL DEMURRER-CONSTRUCTION OF PLEADING.-It is not necessary in a complaint for unlawful detainer to allege the manner in which the notice to pay the rent or to surrender possession was served, and, if the fact of the

LANDLORD AND TENANT (Continued).

service is distinctly alleged, this allegation will be construed, as against a general demurrer, to include everything necessary to constitute a sufficient service.-Id.

8. NONSUIT-SUFFICIENCY OF PROOF.-A nonsuit is properly denied, where the proof shows the execution of the lease and the default in the payment of the rent provided therein, and there is an admission in the answer that the defendants held possession of the demised premises.-Id.

9. PLEADING ADMISSION OF POSSESSION-CONSTRUCTION OF DENIAL -A denial of the defendants in their answer that they still continue to hold or occupy the premises, or any part thereof, as tenants, is an admission that they are in possession, and merely denies the tenancy.-Id.

10. TITLE NOT INVOLVED-DEED INTENDED AS MORTGAGE-ESTOPPEL OF TENANT. In an action of unlawful detainer against a lessee, the question of title is not involved; and the lessees cannot avoid the obligation assumed by reason of the lease, by showing that the lessors did not have the title to the premises demised to them.-Id. 11. EFFECT OF POSSESSION AT TIME OF LEASE ESTOPPEL-QUESTION OF FRAUD.-The rule that a person in possession of premises at the time of entering into a lease is not estopped from disputing the title of the lessor does not apply in an action of unlawful detainer, except that the tenant may show that he was induced to accept the lease by any fraud of the lessor which, if shown, would destroy the relation of landlord and tenant, and remove the estoppel.-Id, 12. EFFECT OF DEED AND LEASE AS SECURITY-RIGHTS OF LESSON.Even if a deed and lease are both executed merely as security for the payment of indebtedness, the lessees are still subject to the obligations consequent upon entering into the lease, one of which is the right of the lessor to a judgment for possession in case of default of the lessee in payment of rent, and the lessor has the right to avail himself of all the remedies afforded by law for making that security effective.-Id.

13. OPTION TO PURCHASE-EFFECT OF TENDER-SPECIFIC PERFORMANCE OBLIGATION TO PAY RENT.-A tender made by virtue of an option clause in the lease, entitling the lessees to purchase the leased premises, does not release the lessees from their obligation to pay the rent, unless they have sought an enforcement of the agreement to sell on the part of the lessor.-Id. 14. ABANDONMENT OF OPTION-SUBSEQUENT PAYMENT OF RENT.-The subsequent payment of rent by the lessees must be regarded as an abandonment of the exercise of an option to purchase.-Id. 15. OFFER OF PAYMENT OF INDEBTEDNESS-KEEPING TENDER GOOD.An offer of payment of indebtedness, intended for the purpose of extinguishing the indebtedness, cannot have that effect unless the tender is kept good.-Id.

16. ISSUE OF FRAUD-INSTRUCTION AS TO EXECUTION OF LEASE-ADMISSION OF SIGNING.-Where the signing of the lease was admitted by the defendants in their answer, and their signatures to the instrument when it was offered in evidence were not disputed, and the issue before the jury was whether the signing was voluntary, or had been induced by fraud, an expression in the charge to the Jury that the execution of the lease was admitted, could not have misled the jury where it appears that the issues as to the execution

LANDLORD AND TENANT (Continued).

of the lease and as to whether there was any fraud practiced, were fairly and fully presented to the jury by the court.-Id.

17. EVIDENCE OF PAYMENT OF RENT-PRESUMPTION.-Where the fact is undisputed that the lessees paid money to the lessor, and took receipts from him, in which the money was stated to have been paid as rent, such payments must be presumed to have been made under the lease.-Id.

See ADVERSE POSSESSION, 1; NEGLIGENCE, 1-8.

LARCENY. See CRIMINAL LAW, 19.

LAW OF CASE. See APPEAL, 8, 10.

LIBEL.

1. DEFINITION.-Libel is a false and unprivileged publication which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his business.-Taylor v. Hearst, 262. 2. LIABILITY OF NEWSPAPER PROPRIETOR-KNOWLEDGE OF PUBLICATION. The proprietor of a newspaper in which a libel is published, though he had no knowledge of the publication at the time, is as responsible for it as he would have been if it had been done by him personally, or under his direct supervision. Id.

3. MALICE. To constitute libel there must be malice actual or implied, on the part of the publisher, the malice being actual when the publication is made through motives of ill-will and with intent to injure or defame; and is implied or presumed in law when the article published is libelous per se.-Id.

4. EXEMPLARY DAMAGES MITIGATING CIRCUMSTANCES ACTUAL DAMAGES.-Where the defendant has been guilty of malice, actual or presumed, the jury may give exemplary damages; but the defendant may prove any mitigating circumstances to reduce the amount of the damage, and may prove that there was no malice in fact to prevent exemplary damages; but such proof is not sufficient to defeat the action or to prevent the plaintiff from recovering such damages as he has actually sustained by reason of the publication.-Id. 5. MISTAKE IN NAME OF PERSON LIBELED ACTUAL DAMAGES.— Where a published article is libelous per se, the fact that it was made to apply to the plaintiff by mistake in his initials, and was intended to apply to another person, does not justify or excuse the publication, and whether such publication was by design, or was the result of carelessness in setting the type, is a matter of no consequence so far as the question of actual damages is involved.-Id. 6. CORRECTION OR

RETRACTION-PLEADING-EVIDENCE-MITIGATION OF DAMAGES.-A correction or retraction of the mistake or error may be properly pleaded and given in evidence, but can operate only in mitigation of damages, and not as a full defense to the action. -Id.

7. EXEMPLARY DAMAGES-QUESTION OF FACT-ABSENCE OF ILL-WILL -INSTRUCTION TO JURY.-The question whether there was such malice on the part of the defendant as would entitle the defendant to recover exemplary or punitive damages is ordinarily one of fact for the jury; but where it is clearly established that the publication was not made by reason of any ill-will against plaintiff, or with

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