LEASES (Continued).

4. UNLAWFUL DETAINER

DAMAGES. -REPAIRS-SETOFF.-In an action of unlawful detainer to recover possession of a lot of land, with an apartment house thereon, together with damages for unlawful detention, because of the violation by the lessee of a covenant against subletting, the defendant is not entitled to set off the cost of the improvements made by her.-Id.

5. ADDITIONAL RENTAL PAID RECOUPMENT. - In an action of unlawful detainer to recover possession of a lot of land, with an apartment house thereon, together with damages for unlawful detention, because of the violation by the lessee of a covenant against subletting, the aggregate of certain monthly payments made by defendants to plaintiff in addition to monthly rental called for by the lease is not available as an offset or recoupment, where such payments were additional rental for the premises covering a period antedating the violation by defendants of the covenant against subletting.-Id.

6. BREACH OF COVENANT TO DRILL FOR OIL

TERMINATION OF

LEASE RIGHTS OF LESSORS.-Where a lease of oil land for a term of years specifies that the lessee shall commence operations within six months and thereafter prosecute, with reasonable diligence, the work of drilling, and further provides that in the event the lessee fails to perform any of the covenants of the lease "and such failure shall continue for a period of thirty days after personal service of a written notice thereof upon the lessee . . . this indenture of lease shall, at the option of the lessors, become immediately null and void, and the lessors shall thereupon have the right... to re-enter upon the land hereby leased, and remove all persons therefrom, provided, however, that such re-entry, if made, shall be the sole and exclusive remedy of the lessors," such provisions are intended to be for the benefit of the lessors and might be waived by them; and if the lessee fails to drill as agreed no other or additional obligation rests upon him because of such failure than that specified in the lease; and, upon such failure, if the lessors do not terminate the lease in the manner specified (and the lessee does not abandon the premises as provided in the lease), the lease remains unimpaired, and the mere lapse of time can in no way affect its life.-Pellissier v. Pan-American Petroleum Co., 543.

7. EXTENSION OF AGREEMENT ELECTION OF LESSEE TO PRESERVE RIGHTS - RIGHTS OF LESSOR - COMPENSATION. Where, after the lessee has failed to commence operations within the time specified, the parties entered into a written stipulation wherein the lessors agree "that in lieu of commencing and prosecuting operations for the drilling of a well . . . the lessee may, if he shall so elect, pay to the lessor" on a specified day "of each and every calendar month, for an additional period of six (6) months," commencing

LEASES (Continued).

on a specified date, "as and for rental for said land,” a specified sum per month, “and such payment so made from month to month, shall relieve the lessee of and from all obligations to commence or prosecute drilling or other operations upon said land during such month," the lessors acquire no new rights except to the rental money received by them; and where the lessee, after having paid the sum specified for a number of months, fails to elect whether or not he will keep his right to begin drilling alive, by the payment of the monthly sum specified, the lessors are not entitled to maintain an action to recover such sum per month for each month the lessee remains in possession.-Id.

8. COVENANT AGAINST ASSIGNMENT CONVEYANCE TO STRANGERS SEPARATE ASSIGNMENTS - BREACH. - Where two out of several lessees, without the consent of the lessor, after acquiring the interests of their colessees to certain leased premises, execute separate assignments conveying the entire leasehold to persons who were strangers to the original lease, they thereby breach the covenant in such lease wherein it was agreed that the lessees would not "let or underlet the whole or any part of the said premises nor assign the lease, voluntarily or involuntarily, without the written consent" of the lessor.-De Angeles v. Cotta, 691.

See Claim and Delivery, 6; Guaranty, 1; Landlord and Tenant.

LEGACIES. See Wills, 24.

LEWD AND LASCIVIOUS ACT. See Criminal Law, 16.

LICENSES.

1. PAROL LICENSE-EXPENDITURES IN EXECUTION-RIGHT OF ENTRYCONTINUANCE.-Where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structure, or, in general, his rights under the license, and the license will continue for so long a time as the nature of it calls for. In the case of irrigating ditches, drains, and the like, the license becomes in all essentials an easement, continuing for such length of time under the indicated conditions as the use itself may continue.-Clendenin v. White, 664.

2. ORAL AGREEMENT OF HUSBAND RATIFICATION BY WIFE- АССЕРTANCE OF BENEFITS. - Where the wife is the owner of the premises occupied by herself and her husband, who looks after and manages the property, and she, with knowledge of an oral agreement between her husband and an adjoining land owner un

LICENSES (Continued).

der which the latter constructed a ditch across her property which was of benefit both to her property and that of the adjoining land owner, accepts the benefit of such ditch for more than twenty years, during which time she must have known of the annual expenditures by the adjoining land owner upon that part of the ditch across her property, she will be held to have ratified her husband's agreement with such adjoining land owner, even if he was unauthorized to make it. Id.

See Broker's Commissions, 12, 14.

LIENS.

1. REPAIR OF AUTOMOBILE.-Under section 3051 of the Civil Code, where a repairman makes repairs to an automobile at the request of the legal possessor thereof a lien is created in favor of such repairman.-Goodman v. Anglo-California Trust Co., 702.

2. REDELIVERY OF POSSESSION

- Loss OF LIEN-AGREEMENT INEFFEC

TIVE AGAINST REAL OWNER. - Where the former legal possessor of an automobile executes an agreement transferring all his interest in the automobile to a repairman for the protection of the latter until his repair bill is paid, and the repairman thereupon permits the automobile to be taken from his possession, such written agreement cannot have the effect of preserving the repairman's lien as against a third party who is the real owner of the automobile.-Id.

3. WORK DONE BY OTHERS.-Under section 3051 of the Civil Code, a lien can arise in favor of an automobile repairman for work done upon an automobile, even though such work is not done directly by the repairman.-Id.

4. EXCESSIVE DEMAND - ABSENCE OF TENDER OF AMOUNT DUEWANT OF PREJUDICE.-Where a repairman has a valid lien upon an automobile for certain repairs made at the request of the legal possessor thereof, the rights of the real owner are not prejudiced by the fact that the repairman's claim of lien is for too large an amount, his lien for earlier repairs having been lost, if such real owner does not tender the actual amount due.—Id.

5. LIEN SALE OF AUTOMOBILE

RIGHTS OF PURCHASER FAILURE TO PERFECT LEGAL TITLE.-Where there has been a valid sale of an automobile, pursuant to the provisions of sections 3051 and 3052 of the Civil Code, to satisfy a repairman's lien, the purchaser at such sale becomes the equitable owner of the automobile, with the right to possession and to demand the documents required by the Motor Vehicle Act to complete his title and which the lien claimant, as the successor in interest of the registered owner, has the power to make; and the failure of such purchaser to per

LIENS (Continued).

fect his legal title to the automobile does not give third persons the right to step in and deprive him or his vendee of its possession.-Id.

See Mechanics' Liens.

MALICE. See Assault and Battery, 1; Criminal Law, 6.

MANDAMUS.

1. DUE ENACTMENT AND CONTENTS OF ZONING ORDINANCE - EVIDENCE. In this proceeding in mandamus to compel the board of public works of a city to issue to petitioner a building permit for the construction of a bungalow court in a certain portion of the city where, according to the answer of respondents, that character of building was not permitted by the terms of a zoning ordinance which had been duly enacted but which had not yet taken effect, such ordinance not having been introduced in evidence, the allegations in the answer as to the due enactment and contents thereof were not proven by the testimony of petitioner to the effect that when he got ready to commence work on his proposed improvement he "could not get the permit, on account of the zoning ordinance going into effect," that when he referred to the zoning ordinance going into effect he meant "an ordinance which is referred to in the answer of respondents here, which has not yet gone into effect," that he "became somewhat familiar. . . with the so-called zoning ordinance that was enacted by the city . . . recently" when he "went to the city hall to apply for a permit," and that "they" then handed him "a copy of the ordinance of the zoning commission."-Vanderbush v. Board of Public Works, 771.

2. AFFIRMATIVE ALLEGATIONS OF ANSWERS BURDEN OF PROOF. In a proceeding for a writ of mandate affirmative allegations of the answer, if not demurrable, are to be taken as true unless they are countervailed by proof presented by the petitioner.—Id. 3. ENACTMENT OF ORDINANCE DUE PUBLICATION-INSUFFICIENT ANSWER.-In a proceeding in mandamus to compel the board of public works of a city to issue to petitioner a building permit for the construction of a bungalow court in a certain portion of the city, an answer in which it is alleged that on a certain date the city council "duly and regularly enacted and adopted" a zoning ordinance which does not permit that character of building in that portion of the city," that said ordinance was thereafter approved by the "mayor . . . and that same is now being duly published .. as provided by the charter . . . and will become effective" on a specified date in the future, is only a prediction, but does not state a defense.-Id.

...

MARKETS. See Municipal Corporations, 2, 3.

MARRIAGE.

WANT OF LEGAL AGE COHABITATION-ANNULMENT.-Plaintiff, having been under the age of eighteen years at the time of his marriage, which was contracted without the consent of his parents, who were the only persons then having charge of him, and he and defendant never having cohabited together after he attained the age of eighteen years, was entitled to have the marriage annulled, under section 82 of the Civil Code, notwithstanding his parents, after learning of the marriage, encouraged him and defendant to continue living together as man and wife and two children were born to them.-West v. West, 541.

MECHANICS' LIENS.

JUDGMENT

FORECLOSURE FINDINGS - PAYMENT - UNWARRANTED AGAINST CONTRACTOR.-In this action for the foreclosure of a lien for materials used in the construction of a dwelling, wherein the judgment denied to plaintiff the claim of lien and acquitted the defendants, other than the contractor of any liability, but awarded judgment against the contractor, the judgment should have been in favor of all the defendants in view of the finding that a certain sum paid to plaintiff out of the sum paid to the contractor by the other defendants more than satisfied the amount due plaintiff, notwithstanding the unintelligibility of other findings. Contractors etc. Supply Co. v. Klay, 380.

MEDICAL PRACTICE ACT.

CHIROPRACTORS.--A practitioner of the chiropractic system of treating the sick or afflicted is subject to the provisions of the Medical Practice Act.-People v. Willis, 717.

MINES AND MINING.

1. CONFLICTING CLAIMS-PLACER MINING LOCATIONS GROUP WORKING -EVIDENCE-FINDINGS.-In this action under section 738 of the Code of Civil Procedure to determine conflicting claims to certain placer mining locations, and in which it was agreed that all locations were in proper form and that in each case discovery of gypsum was made, the trial court was justified in determining from the evidence that defendant had not abandoned the claims in question but had worked them and others as a group and that, during the years in question, labor expended by it tended directly to the development and benefit of each and all of the claims and to facilitate the extraction of mineral therefrom.-Ring v. United States Gypsum Co., 87.