Long

Action to recover fifty dollars claimed to be due the plaintiff from defendant as a license for carrying on the business of selling intoxicating liquors within the corporate limits of plaintiff, under ordinance No. 7, in force at the time of carrying on such business.

Findings were filed and judgment ordered and entered in favor of plaintiff as prayed. Defendant prosecutes this appeal from the judgment on the judgment-roll, accompanied by a bill of exceptions.

It is contended that the suit should have been commenced by the marshal of the town, and not by the trustees. The ordinance provides that the marshal shall commence suit in the name of the “Town of Susanville.” The marshal testified that he consulted with the attorney for the plaintiff and gave him a list of those persons refusing to take out a license, for the purpose of having this and other actions instituted. This was sufficient to show the institution of the suit by the marshal. But were it otherwise the defendant did not raise the question as to the legal capacity of plaintiff to bring the suit, either by demurrer or answer, and is therefore deemed to have waived it. (Code Civ. Proc., sees. 430, 433, 434.)

It is…