The order is reversed and the cause remanded to be proceeded

with according to law.

So ordered.

SHARPSTEIN, J., and MYRICK, J., concurred.

No. 8.758.

MULLER v. Онм.

Department Two. Filed March 3, 1885.

GUARANTY OF NOTE TO BE PAID OUT OF PARTICULAR FUND-COMPLAINT.-In an action on a guaranty to pay a note "out of the Park avenue assessment money after being collected," the complaint is sufficient, on demurrer, although it is not averred that all of such assessment had been collected.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff. The opinion states the facts:

H. H. Lowenthal and William H. Fifield, for the appellant.
Robinson, Olney & Byrne, for the respondent.

THE COURT. The defendant is sued on guarantees in the following words:

"The amount of this note to be paid out of the Park avenue assessment money after being collected by me."

Guaranteed to be paid out of the Park avenue assessment money after been collected by me."

The guarantees were indorsed on promissory notes, respectively, and were signed by defendant. The complaint contains the averment as to each guarantee that the defendant, before the commencement of the action, collected more than ten thousand dollars of the Park avenue assessment, referred to in said indorsement.

The only point in the case is whether plaintiff can have judgment without averring that all the Park avenue assessment had been collected.

Admitting, which we do not, that the defendant would be justified in claiming that the notes were to be paid out of the last of the collections of the assessment, it is sufficient to say that it does not appear but that much of that which would in such case be due plaintiff had been collected by defendant; it may be that an inconsiderable sum remained uncollected. The complaint is sufficient, tested by demurrer. As to the defenses set up by defendant in his answer, he offered no evidence.

Judgment affirmed.

No. 8,964.

DOOLAN, ADMINISTRATOR, ETC., v. MCCAULEY ET AL.

Department One. Filed March 3, 1885.

ADMINISTRATOR MAY LEASE REAL ESTATE-DURATION OF LEASE.-The administrator of the estate of a decedent has authority to lease the real property of the estate, during the period of administration, any lease for a term definite being subject to be terminated by the final distribution of the estate, and the discharge of the administrator.

LESSOR AND LESSEE-PAROL LEASE FOR TEN YEARS-ADVERSE POSSESSION.-One who enters upon and continues in the possession of real estate under a parol contract of lease for ten years, the conditions of which have been fully performed by the lessor, will not be presumed to have been in adverse possession.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states the facts.

George W. Tyler, for the appellants.

J. W. Carter, for the respondent.

THE COURT. The administrator of the estate of Mary Ann Greenwood, deceased, had authority to lease the real property of her estate during the period of administration, any lease for a term definite being subject to be terminated by final distribution of the estate, and the discharge of the administrator. The testimony of the witness Brumagim, administrator-the truth of which is assumed by the finding against the defendant upon the plea of the statute of limitation-was to the effect that it was agreed between him and McCauley that the latter should occupy the premises for ten years, at the rate of ten dollars a month, each month's rent to be credited upon the sum of one thousand two hundred dollars, the estimated value of certain improvements placed upon the praperty by McCauley, and which, by the conditions of the prior lease, he would have the right to remove. The contract between the administrator and McCauley would not have been enforceable as a lease for a longer period than one year. But the latter continued to occupy for the full period of ten years undisturbed by the representative of the estate, or by any other person. The estate was still in course of administration when the present action was brought by the administrator. Can McCauley, or his representative, after the contract between the administrator and McCauley has been fully executed and the latter has been paid for his improvements, according to the terms of the contract, now say that during any portion of the ten years he was holding adversely? If, instead of having agreed to apply the rent upon the one thousand two hundred dollars until that sum was exhausted, he had agreed to pay ten dollars a month, and had, in fact, continued to pay ten dollars a month for ten years, could he, at the expiration of the ten years, claim that he had been holding adversely? The existence of the contract being conceded, the presumption is that he occupied in accordance with its terms. This is not presuming that his possession was the landlord's possession more than five years

after the expiration of the lease, in disregard of the statute: C. C. P., 326. It is a presumption that one who has had the benefit of a contract has complied with his part of it. Thus presuming, McCauley paid the last month's rent in May, 1876. The present action was brought in November, 1877. The court was, therefore, justified in finding as it did on the issue as to the statute of limitations. Judgment and order affirmed.

No. 9,916

TAPE v. HURLEY ET AL.

In Bank. Filed March 3, 1885.

ADMISSION TO PUBLIC SCHOOLS-CHINESE ARE ENTITLED TO-Section 1,667, of the political code, does not authorize the exclusion of children of Chinese parents from the public schools. Teachers are not justified in excluding such children, notwithstanding a resolution of the board of education requires them to do so.

THE SAME PROCEEDING TO COMPEL ADMISSION--HOW BROUGHT.-A proceeding to compel the admission of a child to a public school is properly brought against the teacher thereof.

APPEAL from a judgment of the superior court, of the city and county of San Francisco, commanding the defendants to admit the petitioner as a pupil in one of the public schools of the city and county of San Francisco. The opinion states the facts.

H. G. Platt, for the appellant.

William F. Gibson, for the respondent.

SHARPSTEIN, J. The main question in this case, is whether a child "between six and twenty-one years of age," of Chinese parentage, but who was born, and has always lived in the city and county of San Francisco, is entitled to admission in the public school of the district in which she resides.

The language of the code is as follows:

"Every school, unless otherwise provided by law, must be open for the admission of all children between six and twenty-one years of age residing in the district, and the board of trustees, or city board of education, have power to admit adults and children not residing in the district whenever good reasons exist therefor. Trustees shall have the power to exclude children of filthy and vicious habits, or children suffering from contagious or infectious diseases:" Political code, section 1,667.

This is the latest legislative expression on the subject, and was passed as late as 1880. Prior to that time the first clause of the section read: "Every school, unless otherwise provided by special statute, must be open for the admission of all white children between five and twenty-one years of age, residing in the district."

As amended the clause is broad enough to include all children who are not precluded from entering a public school by some pro

vision of law. And we are not aware of any law which forbids the entrance of children of any race or nationality. The legislature not only declares who shall be admitted, but also who may be excluded, and it does not authorize the exclusion of any one on the ground upon which alone the exclusion of the respondent here is sought to be justified. The vicious, the filthy and those having contagious or infectious diseases may be excluded, without regard to their race, color or nationality.

This law must be construed as any other would be construed. "Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction:" Fisher v. Blight, 2 Cranch, 358, 399. "When the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative, and not judicial action:" Bosley v. Mattingly, 14 B. Monroe, 89. This rule is never controverted or doubted, although perhaps sometimes lost sight of. In this case, if effect be given to the intention of the legislature, as indicated by the clear and unambiguous language used by them, respondent here has the same right to enter a public school that any other child has. It is not alleged that she is vicious, or filthy, or that she has a contagious or infectious disease. As the legislature has not denied to the children of any race or nationality the right to enter our public schools, the question whether it might have done so, does not arise in this case.

We think the superintendent of schools was improperly joined as a defendant in this action, and that the court properly dismissed the action as to the board of education. In Ward v. Flood, 48 Cal., 36, the action was against the teacher alone. That it was properly brought seems to have been conceded.

The board of education has power "to make, establish and enforce all necessary and proper rules and regulations not contrary to law," and none other: Stats., 1871-2, p. 846. Teachers cannot justify a violation of law on the ground that a resolution of the board of education required them to do so.

The judgment must be modified so as to make the writ run against the defendant Hurley alone.

In other respects it is affirmed.

THORNTON, J., MYRICK, J., MCKEE, J., MCKINSTRY, J., Ross, J., and MORRISON, C. J., concurred.

No. 8,878.

MOSELEY V. HENEY, ADMINISTRATOR, ETC.

Department Two. Filed March 5, 1885.

ACTION AGAINST REPRESENTATIVE OF DECEDENT-CAPACITY HOW ALLEGED.-In an action against the personal representative of a decedent, where several causes of action are separately stated in the complaint, each count need not separately allege the death of the decedent and the proceedings in probate. One allegation of such facts, following the other allegations in the complaint, is sufficient.

HUSBAND AND WIFE-COMMUNITY PROPERTY-WIFE MAY BE WITNESS.-A husband is the proper party plaintiff in an action concerning the community property, and his wife is a competent witness therein.

APPEAL from a judgment of the superior court of Humboldt county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

J. J. De Haven, for the appellant.

Weaver & Melendy and James Hanna, for the respondent.

MYRICK, J. Action to recover an illeged indebtedness due from defendant's testator. Causes of action are separately stated in the complaint. Following these allegations is an allegation of the death of the testator, and of the proceedings in probate. Objection is made that the allegations as to the death and the proceedings in probate are not separately stated in each count. The point is not well taken. These allegations may be considered as referring to either and both of the counts.

The subject of the action was community property; no such agreement existed between plaintiff and his wife as made the proceeds of her labor her separate property; therefore the husband was the proper plaintiff. Such being the case the wife was not incompetent as a witness, under the code.

We think the findings were sustained by the evidence; we see no
On the contrary, there is no merit in the appeal.
Judgment affirmed.

error.

No. 8,891.

CHESTER V. HILL ET AL.

Department One. Filed March 5, 1885.

PLEDGOR AND Pledgee-PledgeE CANNOT RELEASE MORTGAGE PLEDGED.-A pledgee, to whom a note and mortgage in favor of the pledgor, has been assigned as collateral security of a debt due from the latter, has no power to accept from the mortgagor a deed to the mortgaged premises, and, in consideration thereof, to release the mortgage and surrender to him his note in favor of the pledgor. The facts entitling the pledgor to set aside such release, and to forciose the mortgage, constitute but one cause of action.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendants. The opinion states the facts.