HUSBAND AND WIFE (Continued).

for the plaintiff, since it is the fact of the false charge and its threatened publication, and not the manner in which the apparent foundation for it is laid, that is material. (Id.)

4. TRANSACTIONS BETWEEN PARTIES-LACK OF CONSIDERATION-UNDUE INFLUENCE-PRESUMPTIONS FROM RELATIONSHIP.-Pursuant to the provisions of sections 158, 2219, and 2235 of the Civil Code, transactions between husband and wife are covered and controlled by the rule applicable to transactions between trustees and beneficiaries, which is to the effect that, where the trustee obtains an advantage from the beneficiary, the presumption is that such advantage was secured without consideration and as the result of undue influence. (McKay v. McKay, 742.)

5. TRANSFER OF MONEY FROM WIFE TO HUSBAND-PRESUMPTION.— The receipt by the husband of the wife's money presumptively makes him her debtor and imposes upon him the legal duty of returning it to her, and no affirmative proof is required on her part to show that he received the money as a loan and not as a gift, but, on the contrary, the burden is upon him or his heirs claiming the money to show circumstances entitling him or them to retain it. (Id.)

6. ACTION BY WIFE FOR MONEY LOANED-PROOF OF TRANSFER-PRIMA FACIE CASE. In an action by a wife against the executor of the will of her deceased husband to recover moneys alleged to have been loaned by her to him during his lifetime, proof of payment of moneys by her to him made out a prima facie case for the plaintiff, and it thereupon devolved upon the defendant to prove that a valuable consideration was given therefor or that the money was a gift, free from that undue influence which is otherwise presumed. (Id.)

7. NONPAYMENT-BURDEN OF PROOF.-In such an action, it was unnecessary for plaintiff to prove the allegation of nonpayment, for if there had been a repayment by deceased, the burden of proving it rested upon defendant. (Id.)

See Deeds, 2, 6; Workmen's Compensation Act, 19, 20.

IMITATION MILK ACT.

1. CONSTRUCTION OF PROVISOS OF SECTION 2-EXCEPTIONS TO PREVIOUSLY STATED PROHIBITION.-The provisos contained in section 2 of the act of 1919 regulating the sale of substances designated therein as imitation milk (Stats. 1919, p. 89), are not affirmative and prohibitory and intended to define a criminal offense, but merely state exceptions to the previously stated prohibition of the sale of products of imitation milk. (In re Reineger, 97.)

2. SALE OF IMITATION MILK ITSELF NOT PROHIBITED.-The provision of section 2 of the act regulating the sale of substances therein designated as imitation milk that no person shall manufacture or

IMITATION MILK ACT (Continued).

sell any article, produce, or compound made wholly or in part out of imitation milk, does not absolutely prohibit the sale of the imitation milk itself. (Id.)

3. LICENSE FEE-DETERMINATION OF BUSINESS OF DEALER-NUMBER OF CANS IN CASE IMMATERIAL.-Under the Imitation Milk Act, which imposes a different license fee upon wholesale dealers from retail dealers and which defines the former as including all persons who sell any of the substances in quantities of one full case or more at a time and the latter as all persons who sell in quantities of less than one case, in determining whether the business is wholesale or retail, the number of cans in each case is not material.

(Id.)

4. SALE IN LARGE CONTAINERS-WHOLESALE DEALER.-Imitation milk sold in barrels, carboys, or large creamery cans containing larger quantities than would be sold to consumers in ordinary retail trade would be sold by the case as that word is defined in the dictionaries, and would come within the term "wholesale dealer" as used in the act. (Id.)

5. SALE BY WHOLESALERS IN CANS NOT ENCASED-ABSENCE OF PROHIBITION-PRESUMPTION AS TO LEGISLATIVE INTENT.-In view of the presumption in favor of legislative action, it must be assumed that the legislature concluded that there were no wholesale dealers engaged in the business of selling and delivering to retailers onepound cans of imitation milk in large lots not encased, and so purposely omitted any provision for such cases. (Id.)

6. REGULATION OF SALE OF MILK SUBSTITUTE - POLICE POWER.-A compound which is not milk but which resembles milk and which for many purposes may be used as a substitute for milk is subject to reasonable regulations under the police power, desigued to prevent it from being sold to consumers as real milk. (Id.)

IMPRISONMENT. See Municipal Corporations, 27.

INCOMPETENCY. See Wills, 5, 8, 9.

INDEMNITY. See Subrogation, 1.

INHERITANCE TAX.

1. COMPUTATION - NET CLEAR VALUE OF BENEFICIAL INterest.— While the California Inheritance Tax Act contains no provision as to how the principal upon which the tax is to be computed is to be ascertained other than that it is designated as the clear market value of the beneficial interest transferred, and the only provisions for deductions are for the deduction of debts and executor's commissions, the plain purpose of the act is that the clear market value of such interest should be its net clear value, and therefore

INHERITANCE TAX (Continued).

expenses of administration are to be deducted. (Estate of Miller, 674.)

2. NATURE OF INHERITANCE TAX-LAW OF CALIFORNIA.-The California inheritance tax is a succession tax on the beneficial interest of each beneficiary or heir computed on its net clear value and chargeable against it. (Id.)

3. NATURE OF FEDERAL TAX UNDER ACT OF 1916.-The federal tax under the Revenue Act of 1916 (39 U. S. Stats. at Large, 777780) is not a succession tax, but an estate tax imposed upon the net estate of the deceased as a unit. (Id.)

4. COMPUTATION OF STATE TAX-DEDUCTION OF FEDERAL TAX.-The state tax being a succession tax upon what the transferee receives and the federal tax being an estate tax upon what the decedent leaves, the federal tax must be first deducted in order to determine the amount upon which the state tax should be levied. (Id.) 5. NATURE OF INHERITANCE TAX LAW OF NEVADA.-The inheritance Tax Law of the state of Nevada (Stats. 1913, p. 411) is a succession tax on what the transferee receives. (Id.)

6. STOCK IN NEVADA CORPORATION-TRANSFER IN CONTEMPLATION OF DEATH-COMPUTATION OF TAX-DEDUCTION OF NEVADA TAX.-In computing the inheritance tax for this state upon stock in a Nevada corporation transferred in contemplation of death by a resident of this state, the amount of the Nevada inheritance tax is to be first deducted. (Id.)

7. TRANSFER PRIOR TO FEDERAL AND NEVADA STATUTES SUBSEQUENT DEATH OF TRANSFEROR-DEDUCTION OF TAXES.-In computing the inheritance tax upon the transfer made inter vivos and in contemplation of death, creating a future, contingent, or limited estate depending on the death of the transferor, the value of such future contingent or limited estate is to be determined as of the time of death of the transferor under sections 5 and 15 of the Inheritance Tax Law (Statutes of 1911, page 713). (Id.)

INJUNCTION. See Deeds, 2, 3; Municipal Corporations, 1.

INSANITY. See Criminal Law, 10, 11.

INSOLVENCY. See Corporations, 17, 18.

INSTRUCTIONS. See Alienation of Affections, 5, 6; Criminal Law, 21; Leases, 1; Negligence, 12, 16, 23.

INSURANCE. See Fire Insurance.

INTENT. See Guardian and Ward, 13; Highways, 1; Wills, 1.

INTERSTATE COMMERCE. See Negligence, 2; Workmen's Compensation Act, 2.

JUDGMENTS.

1. MORTGAGE-FORECLOSURE-PARTIES.-In an action for the foreclosure of a mortgage a judgment against the real party in interest, who is before the court, is binding upon one not a party to the action who holds merely the naked title as trustee for such real party in interest. (Anderson v. Alexander, 265.)

2. ESTOPPEL.-If the issue as to which estoppel by former judgment is claimed is one which had to be determined by the jury in order to arrive at their verdict, the verdict and consequent judgment are a final determination of the issue binding upon the parties in all subsequent litigation, but if the issue were not the one which the jury had to decide to arrive at their verdict, there is no estoppel with regard to it. (Horton v. Goodenough, 451.)

- INTENT OF PARTIES

3. TORT ASSIGNMENT. While a cause of action for a tort is not assignable, such a claim, when merged in a judgment, becomes a debt and may be assigned. (Adams v. White Bus Line, 710.) 4. PAYMENT OF JUDGMENT ASSIGNMENTORDER OF PERFORMANCE NOT CONTROLLING.-Where in the payment of a judgment it was the intention of the parties that the payment should result in an assignment and not in a satisfaction of the judgment, the order in which the money was paid and the assignment executed is not controlling if it was one transaction.

(Id.)

See Building Contracts, 5; Contribution, 2; Corporations, 7, 9, 36; Dismissal, 1, 6; Fraternal Societies, 1; Guardian and Ward, 3; Minors, 1, 5, 6; Municipal Corporations, 17, 19, 20; School Lands, 4, 5, 9; Subrogation, 1; Waters and Watercourses, 7; Waters and Water Rights, 11; Workmen's Compensation Act, 16, 17.

JUDICIAL NOTICE. See Evidence, 2; Public Utilities, 6.

JURIES AND JURORS.

1. APPOINTMENT OF ELISOR-POWER OF COURT.-In the absence of the disqualification of both the sheriff and coroner, the court has no power to appoint an elisor to summon a jury. (People v. Nakis, 105.)

2. METHOD OF SUMMONING JURY-WAIVER BY DEFENDANT IN CRIMI NAL CASE.—While the constitutional right to trial by jury cannot be waived by the defendant in a criminal case, the statutory procedure of summoning the jury may be waived by him or his counsel. (Id.)

3. DISQUALIFICATION OF SHERIFF-APPOINTMENT OF ELISOR INSTEAD OF CORONER-WAIVER OF IRREGULARITY.—The right of a defendant in a criminal case, where the sheriff is disqualified, to have the jury summoned by the coroner instead of by an elisor is waived where he knowingly consented, in the presence of an opportuny to object, to the summoning of the jury by an elisor. (Id.)

JURIES AND JURORS (Continued).

4. PLACING OF JURY IN CHARGE OF DEPUTY SHERIFF ABSENCE OF OBJECTION - INSUFFICIENT GROUND FOR REVERSAL.-Irregularity in placing the jury upon retiring for deliberation in charge of a deputy sheriff, where the sheriff is disqualified, is not a ground for reversal of the judgment, where no objection to the appointment was raised at the trial. (Id.)

5. IRREGULARITIES IN CUSTODY OF JURY -WHEN GROUND FOR REVERSAL. In the absence of an affirmative showing of prejudice to the defendant, a reversal for irregularities in regard to the custody and management of the jury cannot be had. (Id.).

See Public Officers, 3, 6.

JURISDICTION. See Bill of Exceptions, 1, 2; Dismissal, 4, 6; Divorce, 6; Guardian and Ward, 2; Habeas Corpus, 1; Pleading, 4; Public Officers, 1, 2, 7, 9; Public Utilities, 5; Workmen's Compensation Act, 1, 2.

LACHES.

PLEADING.-Laches is a defense and is not a condition of relief, and, if it does not appear on the face of the complaint, must be affirmatively pleaded and proven by the defendants. (Victor Oil Co. v. Drum, 226.)

See Corporations, 13; Minors, 1.

LANDLORD AND TENANT.

1. CONSTRUCTIVE EVICTION.-Any disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy in whole or in substantial part for the purposes for which they are leased amounts to a constructive eviction if the tenant so elects and surrenders his possession, but there can be no constructive eviction if the tenant continues in the pos session of the whole, however much he may be disturbed in the beneficial enjoyment. (Veysey v. Moriyama, 802.)

2. LEASE OF FARM LAND-PARTIAL FAILURE OF WATER SUPPLY-CONTINUED POSSESSION-LIABILITY FOR RENT.-Conceding that a failure of the water supply on ten out of four hundred and sixty shares of water stock on a total acreage of six hundred and forty acres of leased farm land is sufficient to constitute a constructive eviction, the tenant cannot avoid his covenant to pay rent while he remains in possession of the entire premises and continues to cultivate the whole thereof and enjoy the benefits of the remaining water supply, since he has ample remedy under such circumstances in recouping the damages he may sustain against the accruing rentals. (Id.)

See Leases.