of Joseph Hicks, and also by Jotham Salisbury. It was a joint lease. Mary Ann Salisbury having died, Jotham Salisbury is a proper party plaintiff as surviving lessor: See Pomeroy's Rem., etc., secs. 188 and 226, and cases cited in notes. And, as such, can maintain this action. Under such circumstances, no right of action passes to the executor or administrator of the deceased lessor. Joseph Hicks, the ward, having attained his majority before the suit was brought, could maintain an action for the breach of any covenant in the lease made for his benefit.

Jotham Salisbury is a proper party, as the surviving lessor of Mary Ann Frances in her own right, and Joseph Hicks is also a proper party, as the successor of his deceased guardian, to a right of action growing out of the breach of a covenant in the lease made for his benefit. As Mary Ann Frances, in her own right, if she had survived, could have united with Jotham Salisbury and with Joseph Hicks when he had attained his majority, in bringing this action, we see no reason why, when Mary Ann Francis had died, the present plaintiffs could not join for the same purpose.

It is further contended, that, on the averments of the complaint, there is no privity of estate between either of the plaintiffs and the defendant Shirley. In this position counsel are at fault. The assignment of the term, by the lessee to the defendant, creates a privity of estate between defendant and the lessors. This is certainly true after the acceptance of the leasehold estate by defendant: Farmers' Bank v. Mutual Ass. Society, 4 Leigh, 84; Werdner v. Foster, 2 Penrose & Watts, 26; 5 Barr, 1. That defendant did accept the term assigned to him, clearly appears by the averments of the complaint, all of which are admitted, for the purpose of the demurrer, to be true. Inasmuch as the covenant sto pay rent and to pay taxes run with the land: Hannen v. Ewalt, 6 Harris, 11; Allen v. Culver, 3 Denio, 290, 301; Post v. Kearney, 2 Comstock, 394; we have no doubt that this action is properly brought against the assignee of the lessee, the defendant here, who is liable by virtue of privity of estate. The court below committed no error in overruling the demurrer to the complaint.

We think there is no doubt upon the findings that the taxes in controversy were assessed according to law. As to the recital under words, "Description of Property," see: City and County of San Francisco v. Phelan, 61 Cal., 617. The word "Dolls" will be readily comprehended as standing for "dollars." The employment of this abbreviation for dollars takes the case out of the rule referred to in People v. S. F. Savings Union, 31 Cal., 132, and People v. Hastings, 34 Id., 574. The description of the property assessed is sufficient.

The above disposes of the appeal of the defendant. As to him, there is no error, and the judgment is affirmed.

The plaintiffs also appeal from the judgment in so far as it fails to award them the entire sum demanded in the complaint, which is two thousand four hundred and twenty-three dollars and sixteen

cents, with interest (the amount of taxes paid by plaintiffs in consequence of defendant's failure to pay them).

The court below found the following covenants in the lease above mentioned as binding on the lessee:

"And the said party of the second part hereby covenants and agrees to and with the parties of the first part, to pay to them for the said demised premises the sum of two hundred and fifty dollars, subject to the considerations and covenants hereinafter agreed on, payable monthly (in advance) on the first day of each and every month during said term, together with all taxes, costs of assessments which may at any time during said term be levied or assessed on the premises leased or the improvements thereon." And

"That should the amount of rent received by the lessee from said premises, after deducting said taxes and assessments, in any one year during the term of this lease, be insufficient to pay said monthly rental of two hundred and fifty dollars, then the said party of the second part shall not be liable to pay more for the rent of said premises, nor upon the covenants of this lease, than such amounts as he shall receive as the rents and profits of said property, and, until the completion of the improvements herein agreed to be made, the lessee shall pay such amount, not exceeding two hundred and fifty dollars, as shall be received by him."

These covenants also bind the defendant.

The court also found that the term of the above lease was for the period of ten years and six months from the first day of March, 1859, and that the term ended on the first day of September, 1859; that during the last six months of this term, extending from the first day of March, 1869, to the first day of the following September, the net amount of rents received by the defendant from the leased premises was two thousand nine hundred and thirty dollars, and the amount of taxes levied during the same period was two thousand four hundred and twenty-three dollars and twenty-six cents.

It does not appear from the findings that the defendant paid the rent during the last six months of the lease, but it seems to have been assumed by the court that the defendant did pay the rent monthly during the period mentioned. We say that is was SO assumed by the court for the reason that in the sixth finding the amount of rent due for the period mentioned is deducted from the amount of rents received. There would have been no propriety in making this deduction unless such rent had been paid. The counsel make no point on this failure to find and we shall, therefore, treat it as a fact found that the rent of two hundred and fifty dollars per month during the time referred to was unpaid by defendant.

If the defendant had paid the taxes, he would, under the covenant above stated, have been entitled to deduct the amount from the amount of rents, received by him during the six months period above mentioned. Deducting from the rents received by him during that period, which amounted to two thousand nine hundred and thirty dollars, the amount of taxes, two thousand four hundred

and twenty-three dollars and twenty-six cents, which he was bound to pay, the remainder, five hundred and six dollars and seventy-four cents, would only have been due by him under the covenant for rent. The amount paid for rent during the six months was one thousand five hundred dollars. This exceeded the amount of rent, five hundred and six dollars and seventy-four cents, which he was bound to pay, by nine hundred and ninety-three dollars and twentysix cents. If defendant had only paid the amount of rent, five hundred and six dollars and seventy-four cents, he was under obligation to pay, he would have had in his hands nine hundred and ninetythree dollars and twenty-six cents to apply to the amount two thousand four hundred and twenty-three dollars and twenty-six cents due for taxes, leaving the amount due on the taxes one thousand four hundred and thirty dollars, which sum only the plaintiffs were entitled to recover.

The court below arrived at the same amount as due to plaintiffs by a different mode of computation. It deducted from the amount, two thousand nine hundred and thirty dollars, of rents received the amount, one thousand five hundred dollars, of rents paid, leaving one thousand four hundred and thirty dollars to be applied to the payment of taxes. As the result reached is identical, whichever mode of reckoning is adopted, and is also correct, it is entirely immaterial by what mode such result was reached.

The other point made by the plaintiffs is unsustainable. On the findings, we cannot assume or presume that defendant received from his sub-lessees any amount for taxes during the six months period mentioned. If this court should assume or presume any such fact to exist, it would be trespassing on the exclusive province of the court a qua, viz.: That of finding facts and converting itself into a tribunal of original jurisdiction, in direct violation of law.

We find no reason to uphold the contentions of plaintiffs and the judgments as to them must therefore be affirmed; and it is so ordered.

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

No. 8.455.

ROLLER v. SUTTER STREET RAILROAD COMPANY.

Department One. Filed December 15, 1884.

STREET RAILROAD-NEGLIGENT KILLING OF CHILD IN STREET.-In an action against a street railroad company for killing a child of very tender years, as it was attempting to cross the street, the verdict must be for the defendant, unless the evidence establishes that the death of the child was caused by want of ordinary care on the part of the agent of the company in the management of the car, and that the person having care of the child took all proper precaution for its safety.

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

Freidenrich & Ackerman, for the appellant.

Pillsbury & Titus, for the respondent.

Ross, J. Between two and three o'clock of the afternoon of Sunday, November 7, 1880, an infant child of the plaintiff, aged two years and seventeen days, was run over on Larkin street, in the city and county of San Francisco, by a dummy engine of the defendant, and so injured that death resulted from the injuries within a few days. The action is by the father for damages for the loss of his child. The points made on appeal relate only to the giving and refusal to give certain instructions to the jury by the court below.

The parents of the child, with whom lived also the mother of the plaintiff, resided on Larkin street. In rear of the residence was a yard inclosed by a fence, from which a door opened into an alleyway leading to Larkin street, the door being kept closed. The child was accustomed to play in the yard, and the testimony in the case shows that he was never permitted to go upon the street or sidewalk unattended. In the afternoon in question the father and mother went out for a walk, leaving the child in charge of his grandmother, who was engaged in the kitchen, from which a door and window afforded an outlook upon the yard. By some means not appearing, the door leading from the yard to the alleyway became unfastened and the child escaped through it into the alleyway and thence to Larkin street, and in attempting to cross the street, was run over by the dummy of the defendant.

We have examined the instructions requested and given with care and are of opinion that the jury was correctly instructed with respect to the law governing the case by the court below, except in respect to the measure of damages.

As is usually the case, there is much iteration and reiteration in the instructions, but the gist of them may be summed up in this extract, which we take from one of the last, and which embodies the law of the case: "The verdict must be for the defendant, unless the evidence establishes that the death of the child was caused by want of ordinary care on the part of the agent of defendant in the management of the dummy and car, and that the person in whose care the child was placed when his parents left the house, took all proper precautions for its safety."

Upon the question of the measure of damages, the instructions. were, under the provisions of our statute, at least as favorable to the defendant as they ought to have been.

Judgment and order affirmed.

MCKEE, J., and MCKINSTRY, J., concurred.

No. 20,028.

PEOPLE V. VILLARINO.

Department One. Filed December 15, 1884.

ASSAULT WITH DEADLY WEAPON-SUFFICIENCY OF INFORMATION.-An information, charging the defendant with having feloniously assaulted one R. S., with a deadly weapon, to wit: a loaded pistol, with intent to kill and murder the said R. S., specifying the time and place, is a sufficient statement of the offense charged, if in other respects the information conforms to the requirements of sections 950, 951 and 952 of the penal code.

ARRAIGNMENT-DUTY OF COURT TO INSTRUCT AS TO RIGHT TO COUNSEL.-An arraignment is not void because the court, before the commencement of the proceedings of arraignment, omitted to inform the defendant of his right to counsel, or to assign counsel to defend him, if he was unable to employ one, if the court instructed the defendant concerning his right to counsel during the course of the arraignment.

OBJECTIONS TO INFORMATION, WHEN MUST BE TAKEN.-Any statutory objections to an information, or any defects apparent upon its face, cannot, after a plea of not guilty, be availed of on the trial, nor on a motion for a new trial, nor on a motion in arrest of judg ment. It is only a want of jurisdiction, or a failure to state facts constituting a public offense, which may be taken advantage of, at any time in the course of criminal proceedings. APPEAL from a judgment of the superior court for Santa Clara county, entered upon a verdict convicting the defendant. opinion states the facts.

John Lucas, for the appellant.

Attorney General, for the respondent.

The

MCKEE, J., I. The information laid against the defendant charged him with having feloniously assaulted one Raphael Soto with a deadly weapon, to wit: a loaded pistol, with intent to kill and murder him, the said Soto. This, in connection with the averments of time and place, which are properly pleaded, constituted a sufficient statement of the offense charged: People v. Jacobs, 29 Cal., 579; People v. Congleton, 44 Id., 93; People v. Lightner, 49 Id., 226; People v. Lewis, 61 Id., 366; and as, in other respects, the information conformed to the requirements of sections 950, 951 and 952, Penal Code, it was legally sufficient.

II. The arraignment was not void. All the proceedings necessary to constitute a valid arraignment were taken by the clerk of the court, under the direction of the court, and in accordance with the provisions of sections 988 and 989, Penal Code. But it is insisted that the arraigument was void, because, when the defendant, who was without counsel, was brought from prison to the bar of the court for arraignment, the court omitted to inform him of his right to counsel, or to assign counsel to defend him, if he was unable to employ one. Undoubtedly, that duty was imposed on the court by section 987, Penal Code, and the duty was not performed before the commencement of the proceedings of arraignment; but it was performed in the course of the arraignment. For the record shows that when the defendant, on his arraignment, answered "not guilty" to the question, asked by the clerk of the court, whether he pleaded guilty or not guilty, the court then asked him whether he had counsel, or wanted the assistance of one, and the defendant answered that he had no counsel, and was unable to employ any. The duty was therefore performed; and, although it was not performed