prostitutes, and answered that he had other business. He was then asked what his other business was, and compelled, over his objection, to answer that it was gambling. The court did not err in requiring him to answer. His effort was to show that he was not a vagrant, and it was permissible to show out of his own mouth that he had no lawful business.

It is scarcely necessary to add that the court did not err in refusing to instruct the jury as matter of law that under the evidence appellant at the time of the assault was not a vagrant. There was evidence of every element of that species of vagrancy defined in subdivision 6 of section 647 of the Penal Code. Appellant wandered about the streets at late and unusual hours, and his only business-gambling and subletting for purposes of prostitution-was not a lawful business. Pen. Code, §§ 316-330.

Neither did the court err in refusing to give the following instruction requested by appellant: "The witness Ryan has testified that he arrested Charles Mack for a misdemeanor, to wit, vagrancy, and that said misdemeanor was not committed in his (Ryan's) presence, and that he had no warrant for such arrest. If you believe said evidence, then you must find that said arrest, or attempted arrest, was illegal and unlawful; and I instruct you that the defendant Craig, or any third person, was justified in lawfully interfering to prevent the said Mack's illegal arrest, provided that they did no more than was necessary for that purpose." In arresting Mack, Ryan acted under the orders of his superior officer there present, and the legality of the arrest depended upon Wilson's right to give the order which would not have been conclusively determined by that portion of Ryan's testimony quoted in the instruction, even if it had been entirely unqualified by other portions of his testimony; but, in fact, Ryan testified on redirect examination that he had known Mack to be a vagrant all the time. In view of all his testimony, the portion quoted in the instruction may, have meant no more than that the beating of a man on the street (which was the real occasion, though not ground, of the arrest) had not occurred in his presence. Besides, the instruction, as requested, was not strictly correct in point of law. The right of one person to aid another in defending against a threatened injury is defined by our statute (Pen. Code, § 694), and does not differ substantially from the right as it existed under the common law. He cannot interfere, except in aid of a lawful resistance by the person threatened. Here the evidence shows very clearly that Mack was resisting; but it is far from clear that his resistance was confined to lawful means at the time appellant came to his rescue. A court cannot, in instructing a jury, assume any fact to have been conclusively proven, even where the eviience is without conflict. Such a state of

the case might render an erroneous instruction harmless; but a court is not required to give an erroneous instruction, no matter how harmless it may be.

The alleged misconduct of the district attorney does not call for extended notice. He did in one instance claim in his argument to the jury that appellant had shown by his own testimony that he was living off the earnings of women who had consorted with Japanese. There was no evidence as to consorting with Japanese; but, on the objection of counsel, the court admonished the district attorney to confine himself to the evidence. He, however, still contended that such evidence had been given by Sergeant Wilson. He appears to have been mistaken; but there is no reason to suppose that he had purposely misrepresented the testimony. In such a case the recollection of the jury as to what the testimony of a witness was must be deemed a sufficient protection to the accused. It is not like the case where a prosecuting officer deliberately and purposely imputes to the ac cused a distinct and infamous offense regarding which there has been no evidence, and where the court approves his conduct. As to the terms in which the district attorney chose to characterize the offenses of the defendant, we cannot see that they passed the bounds of legitimate censure.

We find no prejudicial error in the record, and accordingly the judgment and order of the superior court are affirmed.

We concur: SLOSS, J.; LORIGAN, J.; HENSHAW, J.; SHAW, J.; ANGELLOTTI, J.

(152 Cal. 17) DOAK V. BRUSON (ELECTRIC IRON & STEEL CO., Intervener). (Sac. 1,428.) (Supreme Court of California. Sept. 19, 1907.) 1. APPEAL-REVIEW-QUESTIONS OF FACTSCONFLICTING AFFIDAVITS.

On appeal from an order made on affidavits, involving the decision of a question of fact, there being a conflict in the affidavits, those in favor of the prevailing party are to be taken as true and to establish not only the facts directly stated therein, but also all facts which may reasonably be inferred or presumed from the direct and positive statements.

2. TENDER-OFFER IN WRITING-GOOD FAITH AND ABILITY TO PERFORM.

Code Civ. Proc. § 2074, providing that an offer in writing to pay a particular sum, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property, and Civ. Code, § 1496, making a similar provision with regard to offers of performance in general, have the effect only, where a written offer to pay money is made and not accepted, to excuse the actual production and tender of the money, and do not dispense with the requirement of Civ. Code, § 1493, that a tender shall be made in good faith, or with that of section 1495, that, in or der for an offer of performance to be of effect. the person making it must be able and willing to perform according to the offer, and such a written tender not being made in good faith, and the person making it not being able to per

form, it is ineffectual, though pursuant to the provision of section 1498. that one making a tender may make it depend on the due performance of a concurrent condition, it is conditioned on the other party giving a deed, and he is unprepared to give it.

In Bank. Appeal from Superior Court, Shasta County; C. M. Head, Judge.

Action by David P. Doak against Willard C. Bruson; the Electric Iron & Steel Company intervening. From an adverse order, defendant appeals. Affirmed.

Aylett R. Cotton and W. H. H. Hart, for appellant. S. C. Denson, for respondent.

SHAW, J. On January 21, 1905, the plaintiff obtained a decree that all the equitable rights of the defendant and of the intervener, under a certain contract, in certain lands, were thereby foreclosed and declared null and void, but further providing that the defendant, or the intervener, might at any time within 120 days thereafter pay to the plaintiff or his attorney the sum of $11,711.64, with interest at 8 per centum per annum from January 21, 1902, to the date of such payment, and that, if payment was so made within the same time so specified, the said plaintiff should execute to the party making the payment a deed conveying to him or it, as the case might be, all the right, title, and interest of the plaintiff in the lands, and that, if they failed to make such payment within said time, they be enjoined from asserting any right, title, or interest in the land, and the plaintiff was, in that event. adjudged to be the owner thereof free from all and any claims of Bruson or the intervener. The decree also provided as follows: "At any time after the 21st day of May, 1905. upon ten days' previous notice given to the attorneys of the adverse parties. any party to this action may, on motion, have an order and judgment entered in this court, adjudg ing whether or not payment in redemption has been made in accordance with this decree, and such order or judgment shall be binding and conclusive upon all the parties." In pursuance of this provision, the plaintiff, upon due notice, moved for an order adjudging that payment of the $11,711.64 had not been made within the time allowed. The motion was heard on June 10, 1905, and, after hearing the affidavits offered, the court made an order in favor of the plaintiff. From this order the defendant, Bruson, appeals.

In the consideration of an appeal from an order made upon affidavits, involving the decision of a question of fact, this court is bound by the same rule that controls it where oral testimony is presented for review. If there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established. Ludwig v. Harry, 126 Cal. 378, 58 Pac. 858; Daniels v. Church, 96 Cal. 13, 30 Pac. 798; Hastings v. Keller, 69 Cal. 606, 11, Pac. 218; Creditors v. Welch, 55

Cal. 469; Hyde v. Boyle, 105 Cal. 107, 38 Pac. 643; Barrett v. Graham, 19 Cal. 635; In re Fisher, 75 Cal. 524, 17 Pac. 640; Fanning v. Leviston, 93 Cal. 188, 28 Pac. 943; Savings Bank v. Schell, 142 Cal. 507, 76 Pac. 250. And as error is not presumed, and all intendments are in favor of the action of the lower court, it follows that the affidavits in behalf of the successful party are to be deemed to establish not only the facts directly stated therein, but also all facts which may reasonably be inferred or presumed from the direct and positive statements.

The claim of Bruson that the payment had been made within the time allowed is based entirely upon a written offer to pay the money, made on his behalf to S. C. Denson, the attorney for the plaintiff, at his office in San Francisco, after 4 o'clock, in the afternoon of May 22, 1905, which was the last day on which payment could be made. It is contended that the effect of such an offer is in all respects equivalent to an actual payment of the money. Section 2074 of the Code of Civil Procedure declares that "an offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property." Section 1496 of the Civil Code makes a similar provision with regard to offers of performance in general. The only effect of these sections, where an offer to pay money is made and not accepted, is to excuse the actual production and tender of the money. They do not absolve the party from the observance of any other requirement of the law necessary to a valid tender. In Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 203, the court, speaking of a similar statute, says: "Ordinarily where a party makes a tender, independent of statute, he must actually produce the money to the creditor. It must be in sight, capable of immediate delivery. Where a person makes a tender in writing, the statute' excuses him from actually producing the money at the time of making the tender, but it excuses no other act or requirement on his part which would be necessary in order to make a valid tender, independent of statute. To hold otherwise would be to turn the statute, which was intended as a mere convenience, into an instrument of fraud." The cases of Ladd v. Mason, 10 Or. 314, Holladay v. Holladay, 13 Or. 523, 11 Pac. 260, and McCourt v. Johns, 33 Or. 561, 53 Pac. 601, are to the same effect, and construe a statute identical in language with ours.

The facts concerning the written offer in controversy were as follows: Mr. Denson, the attorney for the plaintiff, Doak, had on several occasions, after the entry of the judg ment, and before the offer was made, informed Bruson and his attorney that Doak would grant no further extension of time, and that the money would have to be paid within the

time fixed by the judgment. A few days prior to May 20, 1905, Denson told Bruson that Doak was then in San Francisco, and was ready to make the deed if the money was paid, but was going to Mexico in a few days to be gone several weeks, and urged upon Bruson the necessity of getting the money to make the payment before the time was up and while Doak was here to sign the deed. On May 20, 1905, two days before the offer, Denson told Bruson that Doak had left the city, and had not left with him, Denson, any deed to be delivered if payment should be made. On May 22, 1905, at the hour stated, two men, unknown to Denson, appeared in his office, and one of them, who said his name was Albert Batz, served upon Denson the written offer in question. It was signed by Bruson and purported to offer to pay to "Denson, as attorney for said David P. Doak, and for said Doak," the sum required, stating it, and to demand of Doak, through Denson, a deed as provided in the decree, and declared that the tender was dependent on the delivery of a duly executed deed. Denson thereupon inquired, "Where is the money?" to which Batz answered, "They did not give me any, and I did not bring any." Denson then asked: "Have you no money or any check with which to make this tender?" Batz said he had not. Denson then told him he was ready and willing to receive the money, and would see that Bruson got a deed if the money was paid within the time. Batz said he was furnished with no money and was not authorized to pay any. Nothing further occurred at the time, and no other offer was ever made. At the hearing Denson filed a counter affidavit, stating that he had prepared the form of a deed, but that, as it was not known whether Bruson or the intervener would pay the money, it was not signed, and that he was informed and believed that Bruson had tried to get the money to make the payment, but had not succeeded and had not the money and was unable to pay. The notice of motion was served on May 31, 1905. In opposition to the motion, the affidavits of Bruson, James Camp, and Aylett R. Cotton, attorney for the intervener, were read. was not stated or claimed in either of these affidavits that Bruson, at the time of the tender, or at any time afterward, had the money wherewith to pay the sum required, or was or had been able, ready, or willing to make such payment. No money was produced or offered at the hearing. The affidavits for the defendant appear to have been intended to show that the deed was not ready for delivery at the time of the offer. The defendant did not profess to be then able, ready, or willing to pay, but claimed that, by reason of the failure of Doak to have the deed ready, he was entitled to further time in which to make the payment. One of the essential requirements of a tender is that it must be made in good faith. Civ. Code,

§ 1493; Horan v. Harrington, 130 Cal. 142, 62 Pac. 400; Potts v. Plaisted, 30 Mich. 149 McPherson v. Wiswell, 16 Neb. 625, 21 N. W. 391. It is also provided by the Code that "an offer of performance is of no effect if the person making it is not able and willing to perform according to the offer." Civ. Code, § 1495. The provisions of section 2074, Code Civ. Proc., and section 1496, Civ. Code, do not dispense with these requirements. In Ladd v. Mason, supra, the court says: "Surely the justice and good sense of the Legislature should not be impugned by such a construction of this provision as would place its framers in the position of having intended to provide a mode whereby a party might make a valid tender if his offer should not be accepted, without the readiness or ability to make it good, in the event of its acceptance." And in Holladay v. Holladay, supra, it is said that this statute dispenses with the necessity of actually producing the money with the offer, "but this does not dispense with the necessity of the party having the money in fact." See, also, Kuhns v. Chicago, etc., Co., 65 Iowa, 528, 22 N. W. 661; Shugart v. Potter. 37 Iowa, 422; Ladd v. Mason, supra; Holladay v. Holladay, supra; McCourt v. Johns, supra. We are of the opinion that the court may well have concluded, from the facts shown, that, at the time the offer was made, the defendant Bruson did not have the money he offered and was not able or willing to perform, and that the offer was made with knowledge, or in the belief, that Doak had left the city without providing a deed for delivery, and for the purpose of taking advantage of his absence to make an offer on paper to his attorney, Denson, without the ability to make it real. The fact that the offer was in terms directed to Denson, as attorney for Doak, after information that he had no deed and that Doak was absent, the fact that the agent who made the paper offer was provided with neither money, check, nor authority to pay, the fact that no offer was made at the hearing, nor any showing made of ability to pay them, or at any other time, in the face of the objections, suggested by the affidavits served with the notice, and stated on information and belief, that the money did not accompany the offer and that the offer itself was a sham, all tend strongly to this conclusion. The court was therefore justified in making the order complained of.

The rule stated in section 1498 of the Civil Code, that one making a tender may make it depend upon the due performance of a con-current condition, does not affect the case, for nevertheless the party must act in good faith and be able and willing to perform, else, under sections 1493 and 1495, and the authorities above cited, his written offer will be of no avail. Nor does the fact that the other party was also unprepared to perform furnish any justification for his own in

OF REALTY-SUFFICIENCY.

A description of property in an assessment as: "In Los Angeles County. In Electric Ry. Homestead Assn. Tr. Lot 17 Block 20"-is prima facie insufficient to identify the land, and, though it might be shown that the description was in fact sufficient, in the absence of such showing, the assessment will be held void.

In Bank. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by Edwin R. Fox against W. R. Townsend, Robert S. Carter and others. From an order refusing a new trial, plaintiff appeals. Affirmed.

See 87 Pac. 82.

E. R. Fox, in pro. per., and Cole & Cole, for appellant. O. B. Carter, for respondent.

ANGELLOTTI, J. This action to quiet title to certain lots of land in Los Angeles county was brought by plaintiff, claiming title under certain tax sales to the state of California, and deeds from the state to him, against various persons who were the owners thereof if the tax proceedings were ineffectual to vest title in plaintiff. The lots involved were parts of the Electric Railway Homestead Association tract in Los Angeles county. As to four of these lots, viz., lot 11 in block 5 and lot 19 in block 26, claimed by defendant Taylor, and lot 17 in block 20 and lot 17 in block 24, claimed by defendant Carter, judgment went for said defendants, and motions for new trial made by plaintiff were denied. Plaintiff appealed from the order denying his motion. This court, on such appeal, affirmed the order as to lot 19 in block 26, and reversed it as to the remaining three lots. As to the Carter lots, lot 17 in block 20 and lot 17 in block 24, the objection that the description of property in the assessment was insufficient to make a valid assessment (the description being: "In Los Angeles County. In Electric Ry. Homestead Assn. Tr. Lot 17 Block 20," and the same practically as to lot 17 block 24) was answered by stating that a map of the Electric Railway Homestead Association Tract, recorded in book 14, p. 17, of Miscellaneous Records, showing the location of the lots, was introduced in evidence on the trial, in aid of the assessment description, and that the case in this respect was therefore the same as that 1 See note to 91 Pac. 1007

of Baird v. Monroe, 89 Pac. 352. Upon petition by defendant Carter for a rehearing, it was developed that the record available to plaintiff as against said Carter did not show the introduction of any map in evidence, or that there was any map of any kind in existence at any time during the tax proceedings. The map mentioned was introduced in evidence on the separate trial had between plaintiff and defendant Taylor, and is shown only in the bill of exceptions settled between plaintiff and Taylor, and that bill of exceptions specifies only lot 19, block 26, and lot 11 in block 5, as shown on said map. Under these circumstances, it was considered proper to grant a rehearing as to defendant Carter, and an order was made accordingly. The matter is now before us on such rehearing.

The question remaining for determination is as to the legal sufficiency of the descriptions of property contained in the assessment. Were such descriptions sufficient to identify the land? We have already stated the nature of the descriptions. They were in all vital respects the same as the descriptions contained in the assessments of property considered in Miller v. Williams, 135 Cal. 183, 67 Pac. 788, Best v. Wohlford, 144 Cal. 733, 78 Pac. 293, and Baird v. Monroe, supra, namely, a designation of a parcel of land as a portion of a larger tract simply by number and block, without any reference to a map. In Miller v. Williams, supra, an action to quiet title, it was held that such a description in an assessment is not sufficient prima facie to identify the portion assessed. In that case, as in this, there was no attempt to supplement the assessment description by evidence showing that it did sufficiently identify the land. The theory of the decision apparently is that a description of this kind is of such a nature as to indicate that the property can ordinarily be located only by reference to some map or plat, and, no such map or plat being referred to as being in existence, the description is prima facie insufficient. There is no presumption, in the absence of such a reference, that there is such a map in existence. Labs v. Cooper, 107 Cal. 656, 658, 40 Pac. 1042. Under this theory, there is a distinction between such a description, and a description of a tract of land by name, such as "Forks House Ranch," as to which it has been held that "a description of a tract of land by name is sufficient, as it is presumed that the tract, and the extent of its boundaries, is well known by name." People v. Leet, 23 Cal. 161, 163. We cannot say that this distinction is not well based. The rule in Miller v. Williams in this regard, namely, that such a description is prima facie insufficient, has not been impaired by any later case, but has always been accepted as correct. Nor can it reasonably be said that the change in our revenue laws under which all property delinquent for taxes is sold to the state affords

sufficient warrant for declaring a different rule from that laid down in Miller v. Williams. Such change eliminates some of the reasoning in support of the requirements of a certain description of the assessed property, for the purchaser who should know the exact location of the property offered for sale is no longer present, but the owner who is entitled to know with certainty what property is assessed to him still remains. The later cases of Best v. Wohlford, supra, and Baird v. Monroe, supra, accepting the rule of Miller v. Williams as correct, establish the doctrine that, while such description is prima facie insufficient, it may be, in fact, sufficient to identify the property, and that whether or not it is so sufficient is a question of fact to be determined by the trial court upon such evidence as may be presented on that issue. The party relying on an assessment containing such a description may therefore supplement his case by showing that the description in the assessment was, in fact, sufficient to identify the land. Thus, in Baird v. Monroe, supra, it was made to appear to the satisfaction of the trial court that there existed as a public record a map of the tract named, and but one such map, and that this map showed lot 5 in block K of that tract named in the assessment there involved. It was held that there was enough in this, in the absence of other evidence tending to impeach it, to justify the conclusion of the trial court that the

description in the assessment was sufficient to identify the land to the owner. But, in the absence of any evidence tending to show the sufficiency of such a description to identify the land, it must be held insufficient, unless we are to disregard the doctrine of Miller v. Williams, to the effect that such a description is prima facie insufficient. This we do not feel warranted in doing. In the case at bar, the record fails to make it appear that any evidence whatever was introduced tending to show that the descriptions were, in fact, sufficient to identify the land. It follows that the conclusion of the trial court that the descriptions in the assessment were insufficient and the assessment void must be upheld.

The order denying plaintiff's motion for a new trial as to the defendant Carter, and the land claimed by him, viz., lot 17 in block 20 and lot 17 in block 24, is affirmed.

We concur: HENSHAW, J.; MCFARLAND, J.; SHAW, J.; SLOSS, J.; LORIGAN, J.

(152 Cal. 59)

FOX v. WRIGHT et al. (L. A. 1,734.) (Supreme Court of California. May 13, 1907. Rehearing Denied June 10, 1907.)

1. TAXATION-SALE FOR NONPAYMENT of Tax -OMISSION OF DOLLAR SIGN IN DELINQUENT TAX LIST.

Where the dollar mark was not prefixed to the numerals representing the dollars and cents in a published delinquent tax list, but

the meaning and use of the numerals were fully explained in the publication itself, the meaning was as fully explained as though the figures had been preceded by the dollar sign.

2. SAME-TAX DEEDS NOTICE NAMES OF FORMER OWNERS.

In view of Pol. Code, § 3787, making a deed conclusive evidence of nonessential details in matters relating to taxation, failure of the tax collector to give the name of the person to whom the property was assessed for the years for which taxes were delinquent in the notice of sale by the state will not invalidate a deed on sale by the state, notwithstanding Pol. Code, § 3897, requiring such statement in the notice, since after the sale to the state further notice to the former owner is not necessary. 3. SAME NOTICE BY PUBLICATION.

Under Pol. Code, § 3897, requiring publication for three weeks prior to resale of land purchased by the state at tax sale, publication once a week for three weeks in a daily paper is a good publication.

4. EVIDENCE-PRESUMPTIONS-"DAILY" PA

PER.

The court will not presume that a paper was published daily from the mere fact that the word "Daily" is a part of the name of the paper. 5. TAXATION-TAX SALE-STATUTORY PROVISIONS HIGHEST BIDDER."

Under Pol. Code, § 3897, providing that, when the state shall become the owner of property sold for taxes, in reselling it, the tax collector shall sell the property to the highest bidder for cash, etc., the term "highest bidder" means the one who will make the highest cash bid for all the property, and not the person who will pay all the tax for the least amount of the land.

In Bank. Appeal from Superior Court, Los Angeles County; N. P. Courey, Judge.

Wright and others. From a judgment for Action by Edwin R. Fox against W. S. defendants, plaintiff appeals. Reversed and remanded.

Cole & Cole, for appellant. Charles Lantz, for respondents.

HENSHAW, J. This is an action to quiet title, wherein plaintiff relied upon a tax deed to himself from the state of California. It is in all vital respects like the case of Fox v. Townsend et al., L. A. No. 1702 (this day decided).1 In the published delinquent list numerals were employed to represent dollars, and cents, without having prefixed thereto the dollar mark. But the meaning and use of these numerals were fully explained in the publication itself. The case is therefore not at all the one where nothing appears to explain the intended meaning of the figures (People v. Hastings, 34 Cal. 571), but, to the contrary, is a case where the meaning of the figures is quite as fully and elaborately explained as though they had been preceded in each instance by the dollar sign. Nor was the property sold for an excessive amount. Without entering into the computations, which were fully and accurately set forth in the respondents' brief, the sums for which the properties were sold were accurately made up of taxes, 15 per cent. delinquency, 5 per cent. penalty, and the added cost of advertising.

1 See note at end of opinion.