In the course of a long charge, the court instructed the jury as follows: 'And I therefore charge you that if you believe from the evidence, beyond all reasonable doubt, that on the eighteenth day of May said Isabella Clark was of unsound mind, and that these defendants, at the time of the taking of the affidavit testified to, knew, and had reason to believe and know, that at that time the said Isabella Clark was of unsound mind, and with said knowledge caused her to subscribe to said affidavit, with the intent to produce said affidavit, or allow it to be produced, in the action of Sharon v. Sharon, on said motion for a new trial, for any fraudulent or deceitful purpose, as genuine and true, then I charge you it was and is, within the purview of the Penal Code, a false affidavit, paper, and instrument in writing, and it is wholly immaterial whether or not the matters set forth in the affidavit were true or false. * ** I therefore charge you, in plain words, that if it is established to your satisfaction, and beyond such reasonable doubt as I have explained to you, that the said Isabella Clark was on the eighteenth day of May, 1885, a person of unsound mind, with mental powers so impaired, and her organs of sense so weakened, as to make her incapable of perception, and rendering her incapable of making known her perceptions to others, and that the defendants knew or had knowledge, or might have known by the exercise of ordinary observation and inquiry, of her mental unsoundness and incapacity, and knowing such to be her condition," etc., "then the defendants, and each of them, are guilty as charged in the information, and it will be your duty to so find by your verdict. And again the jury are told: "In regard to the question of knowledge, did these defendants know, at the time Said affidavit was presented to said Isabella Clark for her to subscribe and swear to, that she was of unsound mind? And the question here arises, what is legal knowledge of a fact? There is great misapprehension in the popular mind on this subject. There seems to be a prevalent notion that no one is chargeable with more knowledge than he chooses to have; that he is permitted to close his eyes upon all sources of information, and then excuse his ignorance by saying that he does not see anything. While it is true that a man is not supposed to have known facts of which it appears he was ignorant, yet, if he has the means of ascertaining the true state of facts by the exercise of ordinary diligence, he is bound to do so, and if, instead of so doing, he is grossly negligent or culpable in not using such diligence, then his ignorance is no defense for any criminal act committed by him. In criminal cases, as well as civil affairs, every man is presumed to know everything that he can learn upon fair and reasonable inquiry, when he has facts in his possession which suggest the inquiry; that is, when the surroundings are such as to put him upon inquiry.

If such a rule ever obtains in a criminal case, it certainly can have no application to an offense of this character. The rule is nullus reus nisi mens sit rea. The rule of caveat emptor as to notice cannot apply to criminal responsibility. It is not at all analogous to the rule according to which it is sometimes conclusively presumed that one intended the natural and obvious consequences of his acts, and will not permit him to say he did not know that the consequences would follow. Nor is it like those cases of involuntary manslaughter in which carelessness or recklessness are held to be criminal. Undoubtedly, there are cases in which language similar to that contained in tho charge of the learned judge is used; but they are all cases in which a duty is imposed upon the person to inquire, and not to do so is itself a dereliction. Thus, a woman who has been married took a second husband. On being charged with bigamy, she averred that she thought her husband dead. It was held that her belief was no defense. Here, she knew herself disqualified to marry unless the fact of the death of her husband existed. Unless she knew such fact, she ought not to have married. Another case was the sale of impure milk. It was held that defendant could not say he did not know it was

impure; he is presumed to know, for he ought to have known. But in this case a special intent was required to make out the offense. It is like the offense of receiving stolen goods, larceny, or an assault with a particular intent. If one, acting in good faith, takes the property of another, believing it to be his own, he is not guilty of larceny, although the mistake is the consequence of gross carelessness. So the receiver of stolen goods must know they are stolen, and it will not do to say that his failure to know through gross negligence is equivalent to knowledge. If a case could arise, however, in which it should appear that he suspected the fact, and abstained from inquiry lest he should know, knowledge might be inferred. One must have some knowledge of the fact before he can close his eyes lest he may know. Of course, I admit the relevancy of proof of opportunity as bearing upon the issue of actual knowledge. But there must be such actual knowledge, and facts which would ordinarily suggest inquiry are not sufficient. The jury must believe that they did in fact suggest the inquiry to the defendant. For these reasons I think the judgment should be reversed, and new trial ordered. So ordered.

We concur: SEARLS, C. J.; PATERSON, J.; SHARPSTEIN, J.; MCKINSTRY, J.; MCFARLAND, J.

v.

MURPHY . SUMNER. (No. 11,516.)

(Supreme Court of California. December 12, 1887.)

1. PUBLIC LANDS-CONFLICTING TITLES-SURVEYS.

In a suit to recover land, plaintiff claimed title under a survey made by the United States in 1868, and a certificate of purchase from the state describing the land as in section 18. Defendant showed that, the first survey proving incorrect, a new survey was made in 1880, when defendant made a homestead entry upon the land then described as the N. W. section 17. Held, that as plainliff had never been in actual possession of the land, nor had it been listed to the state when he purchased, nor prior to the second survey, the title would follow the second survey.

2. SAME-EVIdence-CertifICATE OF REGISTER OF LAND-Office.

In a suit to recover possession of certain land, to prove that it had been listed to the state, the plaintiff introduced the certificate of the register of the United States land-office showing that as a fact. Held that, as there was no such certificate known to the law, it was improperly admitted.

In bank. Appeal from superior court, San Luis Obispo county; D. S. GREGORY, Judge.

D. B. Murphy, plaintiff, sued Sandy Sumner, defendant, to recover possession of 77 acres of land. Judgment for the plaintiff, and defendant appealed. F. Adams, for appellant. Graves, Turner & Graves, for respondent.

TEMPLE, J. This is an action to recover 77 acres of land, being lots 1, 2, and 3, section 18, township 30 S., range 14 E., Mount Diablo base and meridian. Plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying his motion for a new trial.

The land was twice surveyed under the direction of the United States surveyor general for California, and each survey was duly approved by that officer, and the plat placed on file in the United States land-office. The first survey was made and approved in 1868, and it was afterwards found that the lines actually run on the ground did not accord with other surveys, and were incorrect. A second was therefore ordered, which was made and approved in 1880, and the plat thereof duly filed in the United States land-office in lieu of the first erroneous survey. The plaintiff obtained from the state a certificate of purchase as lieu land, dated January 18, 1870, 10 years before the new and correct survey was made. On the trial, plaintiff introduced his certificate of purchase, and proved the first survey, and the approval of it, and that the plat was filed in the United States land-office. He also showed that, according to

the lines actually run on the ground, the defendant's house is upon his land. The defendant claims no part of section 18, but does claim the N. W. 4 of section 17, in the same township, under a homestead entry made after and according to the corrected survey and plat of 1880. On the trial, the defendant proved the second survey and his homestead entry, and that according to that survey he was not in possession of any portion of section 18. The land thus in controversy consists of a strip about 200 yards wide, on which are the defendant's improvements. Many exceptions were taken at the trial which, under the view we take of the case, it is not necessary to notice.

It is not claimed that the defendant has intruded upon the actual possession of the plaintiff, or that plaintiff ever was in actual possession of the land. He relies upon strict title. It may be admitted that upon proof that the land had been surveyed, and a certificate of purchase duly issued to him, he made a prima facie case. The defendant then proved the corrected survey and a homestead entry, and that according to this last survey he is in possession only of the land included within his homestead entry. It is not claimed that the lands had been actually listed to the state when the certificate of purchase was issued. The statute did not require the surveyor general to ascertain that fact before issuing the certificate, and we know that at the time this certificate was issued the practice was to issue such certificate before the lands had been listed over. That no such presumption arises from the fact of the issuance of the certificate seems to be held in Hodapp v. Sharp, 40 Cal. 69, a case upon which respondent relies.

Unless the plaintiff had acquired some rights under the first survey to a specific tract of land, we see no reason why a correct survey could not be made, and substituted for the incorrect survey. Unless, therefore, the land had been listed to the state prior to the second survey, the plaintiff cannot insist upon the first survey as decisive of the controversy; and it would follow that the evidence of the defendant overcame the prima facie case of the plaintiff, if it be conceded that the certificate of purchase did make a prima facie case. To prove that the land described in the certificate of purchase had been listed to the state prior to 1880, the plaintiff offered the certificate of W. R. Wheaton, register of the United States land-office, showing that the lands had been listed to the state of California on March 2, 1875. The offered evidence was objected to on the ground that it is not evidence of any facts, and that there is no such certificate known to the law. The objection was overruled, and the defendant excepted, and in his statement on motion for a new trial specifies the ruling as error. The point was not made in appellant's points, but was at the oral argument. The certificate was as follows:

“I, Wm. R. Wheaton, register, do hereby certify that lots 1, 2, and 3, section 18, T. 30 S., R. 14 E., M. D. M., were approved to the state of California by Hon. secretary of interior on March 2, 1875. Indemnity sections. "WM. R. WHEATON, Register."

We are not cited to any statute which makes such a certificate evidence. If the secretary did so list the land to the state, the list transmitted to the register was on file in his office, and a copy might have been procured; but to give such a certificate is no part of the official duty of the register. There was no other evidence of this essential fact, and, as the court erred in receiving this, a new trial must be ordered. So ordered.

We concur: SEARLS, C. J.; MCFARLAND, J.; SHARPSTEIN, J.; MCKINSTRY, J.; PATERSON, J.; THORNTON, J.

DURKEE v. COTA et ux. (No. 11,741.)

(Supreme Court of California. December 12, 1887.)

COVENANT-ACTION FOR BREACH-PLEADING-AMBIGUITY.

In an action by plaintiff to compel defendants to furnish more water, in pursuance of a covenant, in a contract for the sale of land, "to sell a full and abundant water-right for all of the above land," the pleading set out the contract in hæc verba, but did not explain for what the water was needed, nor put a definite construction on the contract by any averment. Held, that a demurrer for ambiguity was properly sustained.

Commissioners' decision. In bank.

Appeal from superior court, San Bernardino county; H. M. WILLIS, Judge. Daniel Durkee, plaintiff, sued Leonardo Cota and Ynez Yorba de Cota, defendants, to compel them to furnish more water for certain lands purchased of them, under a covenant in the contract of sale. A demurrer to the complaint was sustained, and plaintiff appealed.

Byron Waters, for appellant. Rowell & Rowell, for respondents.

HAYNE, C. The complaint sets out a contract in hæc verba for the conveyance of land. This contract contains the following covenant: "We also agree to sell a full and abundant water-right for all of the above land." In pursuance of this contract, the defendants conveyed the land, and also a waterright, which the plaintiff alleges was not sufficient, and which he says he was induced to accept by the fraudulent misrepresentations of defendants. A demurrer was sustained on the ground that the covenant as to the water-right was too uncertain to be enforced, and final judgment was given against plaintiff on demurrer.

Whether or not the contract is so uncertain that it could not be interpreted by the aid of surrounding circumstances.—to be proved by evidence,-need not be determined. It is evident that the covenant is ambiguous. For what purpose was the water-right to be "full and abundant,"-for any particular purpose, or for all purposes which the fancy of the plaintiff might suggest? The pleading does not enlighten us on this point. It simply sets out a copy of the contract, leaving it to speak for itself. It is obvious that the pleading must partake of whatever ambiguity there is in the contract. It is perfectly proper to set out a contract in hæc verba. But in such case, if the contract is uncertain, the pleader must put some definite construction on it by averment. As remarked in Joseph v. Holt, 37 Cal. 253: "The instrument which is thus adopted as a part of the complaint must show upon its face in direct terms, and not by implication, all the facts which the pleader would have to allege under the former mode of pleading by averment." The appellant's counsel urges in his brief that evidence would be admissible in aid of the contract. Posssibly it would, and possibly, also, it might remove the uncertainty. But it would not cure the defects in the pleading. The ambiguity was sufficiently pointed out by the demurrer, and we think the judgment should be affirmed.

We concur: BELCHER, C. C.; FOOTE, C.

BY THE COurt. ment is affirmed.

For the reasons given in the foregoing opinion the judg

LARSEN v. HANSEN. (No. 12,125.)

(Supreme Court of California. December 13, 1887.)

PARENT AND CHILD-STEP-CHILDREN-SUPPORT-IMPLIED PROMISE TO PAY FOR. Civil Code Cal. 2 209, provides that if a husband receives his wife's children by a former husband into his family, and supports them, it is presumed he does it as a

father, and they are not liable to him for support, nor he to them for services. Plaintiff sued defendant, her step-father, on a note for money loaned. She had lived in his family for many years; had had an illegitimate child, who also had been treated as one of defendant's children. Defendant pleaded as a counter-claim the board and lodging of plaintiff's child. Held, that no implied promise to pay for the support arose under these circumstances, and, as there was no express agreement to do so, the counter-claim was properly disallowed.1

In bank. Appeal from superior court, Fresno county; J. B. CAMPBELL, Judge.

Anna H. C. Larsen, plaintiff, sued H. P. Hansen, defendant, on a promissory note. Judgment for plaintiff, and defendant appealed. Wigginton, Creed & Hawes, for appellant, W. D. Tupper, for respondent. SEARLS, C. J. This is an action upon a promissory note made by defendant, March 1, 1886, for $1,128, with interest at 1 per cent. per month. Defendant set up as a counter-claim the expenditure of $250 at the instance and request of plaintiff, and a further charge by way of counter-claim of $20 per month for 24 months, board and lodging, care and custody, of the infant child of plaintiff. The cause was tried by the court without a jury. Defendant was allowed $107 for money found to have been laid out and expended by him for plaintiff, and that plaintiff was not indebted to defendant in any sum for the board or lodging or care or custody of her infant child. Plaintiff had judgment, from which, and an order denying a new trial, defendant appealed. It appears from the statement that defendant married the mother of the plaintiff when the latter was about the age of 12 years, and that from the date of such marriage plaintiff lived in and as one of the family of defendant for many years, and finally gave birth to an illegitimate child, which has always lived with and been treated as one of defendant's children, but was never legally adopted as such; defendant declining to so adopt it. There was no agreement or understanding that defendant should receive compensation for the care and support of the child. Plaintiff, who is now married, lived with defendant in like manner, performing some services in the family, and was subject to no charge for her support. The consideration of the note upon which suit is brought was money received by plaintiff from the estate of her deceased father, and loaned to defendant. A parent is bound to support his own children. “A husband is not bound to maintain his wife's children by a former husband; but if he receives them into his family, and supports them, it is presumed that he does so as a parent; and where such is the case they are not liable to him for their support, nor he to them for their services." Civil Code, § 209.

Ordinarily, one who performs services for another may recover therefor upon the presumption which the law raises of a promise or liability therefor on the part of the person benefited. In these cases the law presumes the fact of the promise from the services rendered, and the benefit arising therefrom. It is a conclusion to which the mind readily comes from a knowledge of the particular case, and from the ordinary motives of men in their dealings with their fellow-men; but when the transaction so far departs from the usual practices of men in dealing with each other as to raise a probability that the service was prompted by love and affection, by benevolence or charity, or by any motive other than gain, the implied promise is not indulged.

As a parent may not recover for the support and maintenance of his child,

Respecting the presumption of the existence of contract obligations between parent and child to pay for maintenance or services, see Moyer's Appeal, (Pa.) 3 Atl. Rep. 811, and note; Wall's Appeal, (Pa,) 5 Atl. Rep. 220, and note; Sawyer v. Hebard's Estate, (Vt.) 3 Atl. Rep. 529, and note; Brown's Appeal, (Pa.) 5 Atl. Rep. 13, and note; Leary v. Leary, (Wis.) 32 N. W. Rep. 623; Dodson v. McAdams, (N. C.) 2 8. E. Rep. 453; Young v. Herman, (N. C.) 1 S. E. Rep. 792; Ormsby v. Rhoades, (Vt.) 10 Atl. Rep. 722; Cowan v. Musgrave, (Iowa,) 35 N. W. Rep. 496.