provide for the incorporation of railroad companies," etc., and also the statute of the state of California, approved April 4, 1864, entitled "An act," etc. (Stats. 1864, p. 471); that by virtue of the acts and statutes aforesaid, said Western Pacific Railroad Company was authorized, and it was lawful for it to construct and operate its railroad in, on, and through Sacramento Street, etc.

As before stated, the cause comes up on the judgment roll alone, and we must presume the findings were supported by the evidence.

Upon the facts as presented, each party asked for a judgment, and the only question for consideration is, Did the facts impose upon the court below the duty of rendering judgment in favor of plaintiff?

Two facts exist which we think must preclude his recovery:

1. His premises only extended to the west line or margin of and did not include the street upon which the railroad was constructed. He could not therefore maintain an action against the defendant for a nuisance caused by the obstruction of a public street in front of his lot, without showing some special damage. (Severy v. C. P. R. R. Co., 51 Cal. 195; Thompson on Highways, 256.)

2. Plaintiff suffered no injury by reason of the construction and operating of the railroad, different in character or kind from that which other land-owners fronting on the line of the street have suffered.

It is well settled "that the special injury resulting from a public nuisance which will sustain a private action must be peculiar to the plaintiff, and not common to him. and many others; if it operates equally or in the same manner upon many individuals constituting a particular class, . . . . it is not a special damage to each within the meaning of the rule." (Thompson on Highways, 256; Lansing v. Smith, 8 Cow. 146; Butler v. Kent, 19 Johns. 223; S. C., 10 Am. Dec. 219; Pierce v. Dart, 7 Cow. 609;

Mills v. Hall, 9 Wend. 315; S. C., 24 Am. Dec. 160; Tibbets v. Blade, 60 Cal. 428; Crowley v. Davis, 63 Cal. 460; Aram v. Schallenberger, 41 Cal. 449; Bigley v. Nunan, 53 Cal. 403; Payne v. McKinley, 54 Cal. 532.)

In view of the foregoing facts, and of the further fact that plaintiff had suffered no damage by reason of the railroad from June, 1870, to January, 1872 (from the time of the organization of the defendant to date of suit brought), we are of opinion the judgment in favor of defendant was proper and should be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 11537. Department Two. September 24, 1886.]

J. R. PERKINS, APPELLANT, v. L. L. RALLS ET AL., RESPONDENTS.

ACTION AGAINST TAX ASSESSOR

DAMAGES FOR FRAUDULENT ASSESSMENT SUPERIOR COURT JURISDICTION. The Superior Court has no jurisdiction of an action against a tax assessor to recover damages alleged to have been caused by reason of a wrongful and fraudulent assessment made by him, if the amount claimed is less than three hundred dollars.

APPEAL from a judgment of the Superior Court of Lassen County.

The facts are stated in the opinion.

E. V. Spencer, and J. E. Raker, for Appellant.

C. G. Kelley, and A. L. Shinn, for Respondents.

FOOTE, C. The plaintiff instituted an action against the defendants · a tax assessor and his sureties on his official bond, for the sum of $132 damages, which he alleged he had suffered by reason of a wrongful and fraud

ulent assessment made by Ralls, one of the defendants. The complaint was demurred to on several grounds, among which was this:

"That this court has no jurisdiction of the subjectmatter of the action."

The action was brought in the Superior Court of the county of Lassen.

The demurrer was sustained, and the plaintiff declining to amend his complaint, judgment was rendered against him for one dollar costs, from which he has appealed.

The plaintiff seeks to recover damages against the assessor for his alleged wrongful and malicious act, and for that purpose he brings an ordinary action for damages in the Superior Court for less than three hundred dollars. The action was not, in our opinion, within the jurisdiction of that court, under section 76, subdivision 3, Code of Civil Procedure.

66

It did not, within the purview of that section, involve

the legality of a tax." The reasoning of this court in Brown v. Rice, 52 Cal. 491, is applicable to this case. The judgment should be affirmed.

SEARLS, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 11187. Department Two.

September 24, 1886.]

RICHARD JONES, RESPONDENT, v. JOHN W. JONES,

MALICIOUS PROSECUTION

APPELLANT.

PROBABLE CAUSE

MALICE

BURDEN OF PROOF. To maintain an action for malicious prosecution, malice and want of probable cause must concur. If either of these be wanting, the action must fail. The burden of establishing the want of probable cause is on the plaintiff.

LARCENY SPECIAL PROPERTY OF GUARDIAN SUFFICIENT TO SUPPORT. The guardian of an incompetent person in possession of the property of his ward has such a special property therein as will support larceny against one taking it with felonious intent. MALICIOUS PROSECUTION ARREST MADE UNDER ADVICE OF COUNSEL. -An action for malicious prosecution cannot be maintained for an arrest of the plaintiff, made in good faith, by the defendant, acting under the advice of counsel, after a full and fair statement to the latter of the facts of the case as he believes them.

ID. EVIDence.

--

The evidence reviewed, and held to show probable cause for the arrest in question, and to negative the idea of malice.

APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.

The facts are stated in the opinion.

J. C. Campbell, and P. W. Bennett, for Appellant.

W. D. Grady, and Byers & Elliott, for Respondent.

SEARLS, C. This is an action for malicious prosecution. Plaintiff had a verdict for six thousand five hundred dollars, upon which judgment was entered.

The appeal is by defendant from the judgment, and from an order denying a new trial.

Plaintiff and defendant are brothers. are brothers. Mary Jones, their mother, was an incompetent person, and one Levi Nicewonger was guardian of her estate, and as such guardian had procured an order of court authorizing him to sell certain of the personal property belonging to his ward, and had advertised it for sale.

The plaintiff and one Calvin Jones, another brother

(or perhaps Calvin Jones alone), came to the county of San Joaquin from the county of Fresno, and stated to said guardian that they desired to take the personal property of said Mary Jones to Fresno. They were told by the guardian that they could not take the horses, wagon, or cows, as that property was to be sold in a short time. The plaintiff and Calvin Jones then went to the Jones ranch with their mother, and requested of the man who was in charge thereof, for said guardian, the privilege of using the horses and wagon to convey the household furniture of said Mary Jones to the nearest railroad station at Ripon, they offering to return the team to the ranch in the afternoon of the same day. The agent in charge of the property for the guardian agreed that he would allow them to take the team to Ripon to convey such household furniture, and that he would go to Ripon and bring the team back. Under such representations they got possession of the team, and started on the road apparently toward Ripon. They did not go to Ripon, but took the first road in a southern direction, going directly away from Ripon. Moll, the agent of the guardian of Mary Jones, after making the arrangements with plaintiff and Calvin Jones concerning the team, started for Ripon for the purpose of bringing it back; and after he left the ranch plaintiff and Calvin Jones drove the cows away from the Jones ranch. When Moll arrived at Ripon he found that the team was not there, and upon inquiry ascertained that the plaintiff had been seen driving it up the road leading south. Moll then started for Stockton to inform the district attorney of San Joaquin County, and when he arrived in Stockton he met the defendant, who was interested in the estate of his mother, Mary Jones. Moll then informed the defendant what had been done by the plaintiff and Calvin Jones, and requested the defendant to see about the matter, at the same time informing him that the guardian (Nicewonger) was absent in San Francisco. The defendant went to