ing down of the remittitur from this court dismissing the appeal. Thereupon the court again made its order vacating and setting aside the interlocutory decree and final judgment, and it is from this last order that this appeal is taken.

Manifestly what the court did in granting this motion for relief was based upon its own concept that defendants were entitled, as of strict legal right, to answer the amended complaint, and that the court committed legal error in refusing to accord them that right. But aside from the proposition advanced by this appellant, and well founded in principle and on authority, that a judicial error such as this is not correctible under section 473 of the Code of Civil Procedure, but is to be remedied by motion for new trial or by appeal from the judgment, and as to a certain limited kind of error by motion under section 663 of the Code of Civil Procedure (Egan v. Egan, 90 Cal. 15, [27 Pac. 22]; O'Brien v. O'Brien, 124 Cal. 422, [57 Pac. 225]; Canadian & American etc. Trust Co. v. Clarita Land etc. Co., 140 Cal. 672, [74 Pac. 301]); and aside also from consideration of the further proposition that in view of the uncontradicted facts above stated, it is extremely difficult to perceive how the discretion of the court could be invoked upon any theory of mistake, inadvertence, surprise, or excusable neglect, two fundamental propositions may be considered, both of which sustain appellant's contention that this order must be reversed.

The first of these is the tardiness of the application for relief. It was in July, 1913, that the court entered its interlocutory decree in favor of plaintiff. Without regard to the right of defendants to receive notice of this, it is manifest that they explicitly waived whatever right they had by appearing at all of the hearings of the commissioner, at which hearings evidence was taken. The commissioner filed his report upon January 7, 1914. The final judgment was given on February 9, 1914. It was not until April 24, 1914, that the defendants gave notice of their intention to apply to the court for an order vacating and setting aside both the interlocutory decree and the final judgment. It was nine months after the entry of the interlocutory decree before they made their first effort to set it aside. Not that only, but during the time that elapsed, they participated in the sessions of the commissioner, sought a determination favorable to themselves upon the accounting, and only after they failed and after

final judgment had been given against them did they take this procedure. And yet it was vital to the relief which they sought that the interlocutory decree should be set aside, since the interlocutory decree fixed the final rights of the parties, saving as to the amount of the monetary judgment to be given. Application for relief under section 473 must be timely made. It must in all cases be made within six months, and in every case must be made within a reasonable time. (Smith v. Pelton Water Wheel Co., 151 Cal. 394, [90 Pac. 934].) As concerns the motion to vacate the interlocutory decree, it was actually not made until after nine months; while touching the application to vacate the final judgment, aside from the consideration to which we have already adverted, there was the utterly unexplained delay from February 9th to April 24th, a delay which, under the proved circumstances of this case, establishes beyond peradventure the laches of the defendants.

The second proposition is that the court did not err in refusing leave to the defendants to answer the amended complaint. It will not be questioned but that where permission to amend to conform to the proofs is given, this does not authorize the setting up of new, distinct causes of action not originally pleaded. Such is the decision in Bowman v. Wohlke, 166 Cal. 121, [Ann. Cas. 1915B, 1011, 135 Pac. 37], relied upon by respondents here. But the distinction between that case and others of like kind, and the one at bar, becomes obvious upon the slightest consideration. In the Wohlke case an entirely new and distinct cause of action based upon a tortious act not complained of was embodied in the amendments to the complaint which the court had permitted. In the case at bar there was no inclusion for the first time of any new cause of action. The cause of action in both the original and in the amended complaint was the same. Plaintiff sought relief for the same breach of trust. The difference between the two causes of action consisted merely in this: that with the evidence of all the parties before it the court concluded that a breach of trust had been committed, but that the breach of trust grew out of the fact that the plaintiff had made over his property to the defendants as security for advancements made by them, whereas the original complaint charged that the breach of trust grew out of the fact that after having taken possession of his

property as security for advancements there was a subsequent executory agreement entered into by virtue of which the defendants were to purchase the property. In both cases the fundamental equitable consideration was the same, namely, was there a breach of trust by virtue of which the defendants were inequitably retaining possession of property rightfully belonging to plaintiff? If so, they were bound to account for their trusteeship. So manifest is this that we think nothing more need be added upon the point, saving to say that the amended complaint permitted to be filed in this instance comes most clearly and appositely within the contemplation of the law as discussed in McDougald v. Argonaut Land etc. Co., 117 Cal. 87, [48 Pac. 1021], where this court says: "Amendments made to the complaint after trial, and for the purpose of making it conform to the proof, must rest upon such proof and cannot go beyond it. They are not made for the purpose of framing issues for trial, but to supply some technical defect, or, perhaps, upon the supposition that certain issues have been tried which are different from those framed by the pleadings. The supposition is that they have been tried as though such issue had been made." The same case affords authority, if authority be needed, for the familiar proposition that when such an amended complaint or amendments to a complaint are filed, no answer thereto is necessary. The issues tendered by the complaint are taken as denied without pleading, they having already been tried by the

court.

The order appealed from is therefore reversed.

Melvin, J., Lorigan, J., Sloss, J., and Angellotti, C. J., concurred.

Rehearing denied.

[Crim. No. 1996. In Bank.-December 26, 1916.]

THE PEOPLE, Respondent, v. J. S. WINKLER, Appellant. CRIMINAL LAW-CONSTRUCTION OF LOCAL OPTION LAW-SALE OF LIQUOR IN NO-LICENSE TERRITORY.-Three acts are declared unlawful by section 15 of the local option law (Stats. 1911, p. 599), i. e., soliciting orders, taking orders, or making agreements "for the sale or delivery of alcoholic liquors." The words "for the sale or delivery," etc., qualify all three of the acts. ID.-SUFFICIENCY OF INDICTMENT.-An indictment for a violation of the local option law which charges that defendant on or about a certain day in a certain county did "take an order from, sell, and deliver to one M. Hamilton, alcoholic liquor," within a supervisorial district which was no-license territory, is not demurrable on the ground that it charges more than one offense and that the several offenses are not stated in separate counts, as the pleading charges nothing more than a sale under section 13 of the act, and does not attempt to allege that defendant took an order "for the sale or delivery of liquor."

ID.-PURCHASE OF LIQUOR NOT PROHIBITED-PURCHASE OUTSIDE OF AND BRINGING INTO NO-LICENSE TERRITORY-ACTING THROUGH AGENT.— The local option law prohibits the sale of alcoholic liquors but not their purchase; it does not prohibit one from purchasing such liquors outside of no-license territory and bringing them within such territory for his own consumption, and if one may do this personally, he may do it through an agent.

ID. INSTRUCTIONS-DEFENDANT ACTING AS AGENT FOR ANOTHER.-In such a case the defendant is entitled to have the jury charged that if he, in purchasing the liquor outside of the no-license territory described in the indictment, acted on behalf of and as the agent of the prosecuting witness, having no interest in the liquor, and deriving no profit from the transaction, he was not guilty of “selling" such liquor to the prosecuting witness.

APPEAL from a judgment of the Superior Court of Glenn County, and from an order denying a new trial. William M. Finch, Judge.

The facts are stated in the opinion of the court.

George R. Freeman, and Frank Freeman, for Appellant.

U. S. Webb, Attorney-General, J. Charles Jones, Deputy Attorney-General, and Ben F. Geis, District Attorney, for Respondent.

SLOSS, J.-The defendant having been convicted of a vio-· lation of the local option law (Stats. 1911, p. 599), appeals from the judgment and from an order denying his motion for a new trial.

The indictment charged that the defendant on or about the twentieth day of November, 1914, in the county of Glenn, did "take an order from, sell and deliver, to one M. Hamilton, alcoholic liquor," within a supervisorial district which was no-license territory.

The defendant demurred to the indictment on the ground that it charged more than one offense, and that the several offenses were not stated in separate counts. (Pen. Code. sec. 954.) Section 13 of the act makes it unlawful to "sell, furnish, distribute or give away," within the boundaries of any no-license territory, any alcoholic liquors, except in certain cases specified in section 16. Section 15 makes it unlawful, within such territory, "to solicit orders, take orders or make agreements for the sale or delivery of alcoholic liquors." The claim is that the indictment charges a sale under section 13, and also the taking of an order under section 15. It is not necessary to decide whether the offenses described in these sections may properly be joined in a single count. We are satisfied that the indictment did not contain the elements necessary to constitute a charge of "taking an order" under section 15. Three acts are there declared unlawful, i. e., soliciting orders, taking orders or making agreements "for the sale or delivery of alcoholic liquors." The words "for the sale or delivery," etc., qualify all three of the acts. The indictment merely charges that the defendant took an order from Hamilton, and sold and delivered liquors to him. There is no attempt to allege that he took an order "for the sale or delivery of liquor." Since the act does not, in section 13 or elsewhere, prohibit the "delivery" of liquors, the pleading charges nothing more than a sale under section 13, and the case should have been submitted to the jury on the issue of sale alone. The words "taking an order from" may well be treated as surplusage. In this view, the indictment charges but a single offense.

Was the defendant properly convicted of the offense of selling intoxicating liquor within no-license territory? There is little or no dispute regarding the facts. Winkler conducted a general merchandise store at Hamilton City in Glenn