Bosworth v. Danzien. loway, 5 B. & Ald. 43, 51.) In such case evidence of res gesto will be received for the purpose of ascertaining the intention of the parties, and giving to it a complete effect and operation. But tax proceedings are in invitum. The land owner intends nothing. The Government, acting after its own methods and through its own agents, seeks to enforce the collection of a tax which it has imposed upon the citizens; and it follows that if a false description in a tax deed or assessment roll can be rejected as surplusage, it cannot be for the reason that it is necessary that it should be so dealt with in order that the intention of parties may be fulfilled. It does not, however, follow that a false call occurring in an assessment roll is to be retained to the entire overthrow of the tax title, because it cannot be rejected for the particular reason above stated. It not unfrequently happens that a case arises, not in all respects within the beneficial operation of one rule of law, but which may be manifestly within the saving operation of another, going upon broader conditions. The maxim, "Ut res magis valeat quam pereat," is a canon, with reference to which, not only contracts and wills are to be construed, but statutes also passed, as they are, without any direct cooperation or assent on the part of the citizen. The spirit of the maxim is that nothing should be destroyed merely for the sake of destruction. We have not, by our own examination, been able to find any adjudged case in which it has been held that a false call in an assessment roll, advertisement or tax deed, necessarily vitiates a tax title. The rule as given in Tallman v. White, 2 Comst. 66, is as follows: "An assessment of land is fatally defective and void, if it contains such a falsity in the designation or description of the parcel assessed, as might probably mislead the owner and prevent him from ascertaining by the notices, that his land was to be sold or redeemed. Such mistake, or falsity, defeats one of the obvious. and just purposes of the statute that of giving to the owner an opportunity of preventing the sale by paying the tax." We accept the above decision, not more on the authority of People v. Holladay et al. the Court by which it was pronounced, than on our entire conviction that it is correct in principle. The test, then, to which every false call occurring in the course of tax proceedings is to be subjected, is this: Has it probably had the effect to mislead the landowner in relation to the land assessed, advertised and sold? In the case at bar, the description in the assessment roll begins at a point fixed with entire precision, and runs therefrom due east two hundred feet. The superadded description of that line" along Corbett street" was not, in our judg ment, calculated to mislead the landowner, and for the manifest reason that it was impossible that the call should be true. The call was not only false, but absurd, and that, too, in the light of facts appearing on the face of the general description of the corner and line. Judgment reversed and new trial ordered. THE PEOPLE v. BENJAMIN HOLLADAY AND JESSE HOLLADAY. COMPLAINT IN ACTION TO RECOVER TAXES.- In an action brought by the people to recover judgment for delinquent taxes assessed during the three years preceding March 1st, 1861, the complaint is fatally defective if it does not aver that the Tax Collector has failed to collect the taxes in question by reason of his inability to find, seize, or sell property belonging to the delinquent. POWER OF LEGISLATURE.- The Legislature possesses full power to legalize defective and invalid assessments of delinquent taxes, and to provide for their collection. ACT OF MAY 17TH, 1861, TO LEGALIZE ASSESSMENTS. The first section of the Act of May 17th, 1861, entitled "An Act to legalize and provide for the collection of delinquent taxes in the counties of this State." legalizes every assessment for taxes made during the three years preceding March 1st, 1861, however defectively and imperfectly it may have been made in any respect. COMPLAINT WHERE DESCRIPTION DEFECTIVE IN ASSESSMENT. If an assessment of a tax made during the three years preceding March 1st, 1861, is defective in not stating the kind and quantity of property assessed, whether real or personal, or if real, in not giving its description, the pleader, in an action brought to recover judgment for such tax, may, if the same can be ascertained, insert in his complaint the necessary averments as to kind and quantity or description. ASSESSMENT OF PERSONAL PROPERTY.-A complaint, under the Act of May 17th, 1861, which avers that the tax was levied upon and assessed against personal property," contains no cause of action. The complaint should not People v. Holladay et al. only aver that the tax was levied upon and assessed against personal property, but also the kind or kinds of personal property. IN WHAT COUNTY ASSESSMENT TO BE MADE. All personal property within a county on the first Monday of March, is assessable in that county if not removed from that county before the assessment is actually made, and if assessed in that county before it is removed from it, the tax is payable in that county; but if removed from that county to another before actually assessed, the Assessor of that county may make the assessment, and transmit the same to the Assessor of the county to which the property is removed. WHERE TAX PAYABLE.- Taxes are due and payable in the county where the property is first assessed; and if the property, after it has been assessed, be removed into another county, and there assessed, the first assessment is unaffected thereby, and payment of the latter assessment is not a discharge of the former. By CURREY, J.- RHODES, J., concurring: "ONSTRUCTION OF ACT OF MAY 17TH, 1861.- The Act of May 17th, 1861, was only designed to legalize assessments in some respects formally defective, though substantially good, and was not intended to make good an assessment which was totally invalid for not stating either the kind or quantity of property assessed, or not describing it, when real estate. POWER OF LEGISLATURE.- When an assessment is so defective as to be totally void, the Legislature cannot cure it by legislative enactment having a retrospective operation, so as to create an obligation where none existed before. APPEAL from the Seventh Judicial District, Solano County. The facts are stated in the opinion of the Court. J. G. McCullough, Attorney-General, for Respondent. By the Court, SANDERSON, C. J. This is an action to recover delinquent taxes on certain personal property, brought under the provisions of the Act of the Legislature of the 17th of May, 1861. (Statutes of 1861, p. 471.) After stating the title of the action the complaint proceeds as follows: The plaintiff above named comes, by J. C. Hinckley, District Attorney for said county, and in pusuance of an Act of the Legislature of the State of California, entitled "An Act to legalize and provide for the collection of delinquent taxes in the counties of this State," approved May 17, 1861, complains People v. Holladay et al. against the defendants Benjamin Holladay and Jesse Holladay, known by the firm name of "Holladay & Brother," and for cause of action alleges that the said defendants are indebted to plaintiff in the full sum of three hundred and seventy-one dollars and twenty-one cents, which sum is due, owing and payable from defendants to plaintiff for public revenue and taxes levied as follows: Tax for State purposes, one hundred and sixty-five dollars; tax for county purposes, two hundred and six dollars and twenty-one cents. Said taxes were levied upon and assessed against personal property valued at twentyseven thousand five hundred dollars, belonging to said defendants, in the County of Solano, for the year 1858, etc. It is claimed by the appellants that the foregoing complaint does not state facts sufficient to constitute a cause of action, and in support of this objection to the complaint they assign the following grounds: First-Because it does not allege that the Tax Collector has failed to collect the taxes in question by reason of his inability to find, seize or sell property belonging to the delinquents, as required by the second section of the Act under which the suit is brought. Second-Because it does not designate the "kind and quantity" of the personal property upon which the taxes were levied and assessed, as required by the second section of said Act. 1. The first point seems to have been determined in favor of the appellants by the case of The People v. Pico, 20 Cal. 595. That action, like the present, was brought under the provisions of the Act of the 17th of May, 1861. In that case the taxes sued for had been assessed against real property, which constitutes the only difference between the two cases. The same points were made by the appellant in that case which are made in this, except so far as the second point may be affected by the character of the property against which the taxes were assessed. Both points were there decided in favor of the appellants. Upon this point the Court held, in effect, that the inability of the Tax Collector to find, seize and sell property belonging to the delinquent, was made by the statute a condition precedent to the right of action therein conferred upon the State; People v. Holladay et al. and that the District Attorney had no authority to commence an action to recover unpaid taxes, except in cases in which the Tax Collector had failed to collect them for the reasons specified in the Act; and that without an averment of such failure on the part of the Tax Collector, the complaint fails to state a cause of action. The same principle was announced by us in the case of The People ex rel. Hastings v. Jackson, 24 Cal. 630, where it was held that conditions precedent must be pleaded. in all cases, except those arising out of contract, in which latter cases, the pleading of conditions precedent is excused by the sixtieth section of the Practice Act, and a general averment of performance made sufficient. 2. We do not consider the case of The People v. Pico as conclusive of the present case upon the second point made by appellants. The taxes sought to be recovered in that case had been assessed against real property, which was described in the complaint as "the unsold portion of eleven square leagues of land known as Los Mokelamos." The second section of the Act of the 17th of May, 1861, provides that the property, if real estate, shall be described in the complaint; and the Court held that the description was insufficient, and thus far the decision in that case is undoubtedly correct; and further than this it was unnecessary for the Court to go for the purpose of deciding that case, and hence so far as that case seems to hold that the assessment must contain a description sufficient for the purposes of the complaint, and that if the assessment is fatally defective in that respect no cause of action can exist under the Act in question, it may be regarded as obiter dictum. The object of the Act, as declared in the title, is to legalize and provide for the collection of delinquent taxes in the counties of this State. The question as to the power of the Legislature to pass such Acts has been decided in favor of the power too often to admit of doubt at the present time. The first section of the Act provides as follows: "SECTION 1. The assessments of taxes upon all property, real and personal, in the several counties in this State, whether |