nal Code, for the removal of the defendant from the office of tax collector in and for the county of San Diego. The judgment was entered on October 2, 1889, depriving defendant of his office, and on the same day an appeal was taken therefrom to this court, and an undertaking in due form and with sufficient sureties was filed. On October 5th following, the board of supervisors appointed Henry Weineke to fill the vacancy caused by the removal of defendant, and on October 7th the court below made an order directing the sheriff to put Weineke in possession of the office. A writ for the execution of this order was issued accordingly, and on October 7th the sheriff made return showing that he had installed Weineke in the office of tax collector. On October 21, 1889, the appellant submitted a motion in this court for an order directing the court below to stay all proceedings herein during the pendency of the appeal. The motion is made upon the ground that the appeal which has been perfected operates as a supersedeas of all proceedings in the court below, and that the order of the court directing the sheriff to remove appellant and deliver possession of the office to Weineke is void.

Section 770 of the Penal Code provides that "from a judgment of removal an appeal may be taken to the supreme court in the same manner as from a judgment in a civil action; but until such judgment is reversed the defendant is suspended from his office. Pending the appeal, the office must be filled as in case of a vacancy." We think that this provision is applicable to proceedings under section 772, which provides for the removal of public officers by summary proceedings. Both sections are in chapter 2, pt. 2, tit. 2, Pen. Code, which provides for "the removal of civil officers otherwise than by impeachment." If there be any provision of law in any other title of the Code, or in any statute which conflicts with or contravenes the provisions of this chapter, the latter "must prevail as to all matters and questions arising out of the subject-matter" thereof. Pol. Code, § 4481. In the case of Covarrubias v. Board, 52 Cal. 622, relied on by appellant, the statute under consideration was the act of March 30, 1874, providing for the removal of civil officers, which contained no provision with respect to appeals. The court there said that the proceeding was one "had under the provisions of the act of March 30, 1874, and not under the provisions of the Penal Code, § 772." In view of the fact that the question before the court in that case was whether the perfecting of an appeal operated a supersedeas, the above remark of the court is significant, and indicative of an opinion shat, if the proceeding had been one under section 772, the appeal would not have operated a supersedeas. Motion denied.

We concur: MCFARLAND, J.; SHARPSTEIN, J.; THORNTON, J.

Fox, J. I concur in the order denying the

motion, for the reason that it would be a vain act now to grant the motion; but do not express any opinion as to whether or not the provisions of sections 770 of the Penal Code apply to proceedings had under section 772. BEATTY, C. J. I dissent.

(3 Cal. Unrep. 235)

TOGNAZZINI v. MORGANTI et al. (No. 13,362.)

(Supreme Court of California. Feb. 6, 1890.) PATENTS-LOCATION-OPINION EVIDence.

The lines described in a patent must be located by the court according to the calls of the patent. Witnesses can testify only as to the existence and condition on the ground of what is called for in the writing; and it is error to admit their opinions, speculations, or conjectures as to the location of the lines.

Department 2. Appeal from superior court, Santa Barbara county; R. M. DILLAR, Judge. W. C. Stratton, for appellant. S. E. Crow and John J. Boyce, for respondents.

The

THORNTON, J. Ejectment for a parcel of land in Santa Barbara county. Judgment for defendants. Plaintiff moved for a new trial, which was denied, and from this order of denial plaintiff appeals. The controversy herein is as to the location of the eastern patented line of the Casmalia rancho. The parcel litigated is triangular in shape. base of the triangle is a portion of the southern patented line of the rancho. The plaintiff contends that the eastern line of this triangle is the true patented line. The defendants' contention is that a line further west is the line as patented. The length of the base line is 20.20 chains. The other lines start from the ends of the base line, and converge in a north-westerly course until they meet. Of these converging lines, the westerly line is and will be called the "Harris Line, " and the eastern is and will be called the "Cooper Line." The plaintiff contends for the Cooper line; the defendants for the Harris line. The court decided in favor of the Harris line, and thus upheld the contention of defendants. This eastern line of the Casmalia is thus described in the patent: It commences at a post which designates a station, and is marked "C, No. 2;" "thence descending ridge south, fifty degrees east, eighty-eight chains and fifty links, enter Canada; thence down through some one hundred and fifty-five chains, leaving Canada bearing south-east; thence over low running hills three hundred and ninety-four chains and fifty links; leaves hills, and crosses road, course south-west and north-east, three hundred and ninety-five chains and fifty-five links, to old post in the entrance of the Canada Verde, marked T. S. No. 5 and 6, No. 3."" There is one very controlling call in the field-notes of the patent, and that is the road which the eastern line is described as crossing. The testimony shows this road, or the remains of an old road about where it is designated, near the entrance of the Canada Verde

There is testimony that a surveyor's post was erected at this point corresponding with the course and distance of the field-notes. That course is south, 50 east, and the distance 395 chains 55 links from post marked "C, No. 2." We are of the opinion that the Cooper line is the true line, or near the true line, of the patent. There is evidence that there was no post found at what plaintiff contents is the true location of post C, No. 3. If this post cannot be found, the question would then be very simple. The line must be run according to course and distance, and fixing the corner C, No. 3, at the south end of that line, taking care, however, that the line so run shall cross the road called for.

The court, in trying the cause, let in a mass of evidence which had no relevancy to the matter in issue. The witnesses, most of them surveyors, seem to have been permitted to locate the line according to their opinions. This was not the proper mode of trying the issues or locating the line. In adopting the mode above mentioned, the court abdicates its functions, and turns them over to the witnesses. The witnesses should depose to facts only. The calls of the patent are admitted in evidence, and the line must be located according to these calls. The court must determine what the calls are. The evidence is admissible to identify those calls, to show their location on the ground. To illustrate: A line is called for running from a tree marked "B" to a rock on which is marked in paint the letter "A." The witness can testify only to the existence of the tree and the rock called for. When they are ascertained, the court fixes the line by running a straight line over from B to A. A line is here called for running from a fixed point, C, No. 2; a course specified, south, 50 deg. east; a specific distance, 395 chains 55 links, to a post, C No. 3, T No. 5. Before it reaches the post last mentioned, it crosses a road. That line only is correct which crosses the road referred to. A line suggested or testified to which does not cross the road must be rejected at once. If post C, No. 3, is found stuck in the ground at the end of the line, that would certainly fix it. A post found 20 chains east of this point, or 20 chains west of it, lying on the ground, should not be considered a moment. If no post is found where the line ends, a line run in accordance with the calls of the patent is the true line. In regard to the road, we wish to be understood as saying, if the road is shown to exist, the line must cross it; if no road is found, the line must end when the distance called for is measured; say, 395 chains 55 links. We repeat, a court fails to discharge its duty when it fixes a line not in accordance with the calls of the written instrument in evidence. The court must make the location. A witness should only be allowed to testify as to the existence and condition on the ground of what is call d for in the writing. His opinions or speculations or conjectures are inadmissible, and should have no weight. In

this case we are convinced that the testimony shows that the Harris line is not the true line, and therefore the order denying plaintiff's motion for a new trial must be reversed. Cooper's line seems to be nearly correct. His course is a little variant from the course called for in the patent. It is, however, correct, if at the southern end of the line the post called for, C 3, T 5, is found. Order reversed, and new trial ordered.

SHARPSTEIN, J. I concur.

MCFARLAND, J. I concur on the ground that the court erred in admitting the evidence referred to in Mr. Justice THORNTON'S opinion.

(82 Cal. 144)

JEWELL v. MOKAY et al. (No. 12,480.) (Supreme Court of California. Dec. 20, 1889.) MECHANICS' LIENS-PROCEDURE-ATTORNEY'S

FEES.

1. In an action to foreclose 11 mechanics' liens, some of the notices of lien designated one of the employers as "W. F. H., " others as " Fred H., " and others as "Frank W. H.," and it was averred and proved that the employer thus designated was called and known by these several names, and was one and the same person. Held, that the notices of lien sufficiently showed the employer's name.

2. The complaint, in an action to foreclose mechanics' liens, is not ambiguous and uncertain, in that it does not state the nature of the alterations or repairs made, or whether the various lienholders separately or jointly contributed to the work.

3. Under Code Civil Proc. Cal. § 1187, which prescribes what a notice of mechanic's lien shall contain, the notice need not state that the owner of the soil had personal or actual knowledge that the work was being done, as that is not one of the requirements of the statute, but it is sufficient, under section 1192, providing that every building constructed on any lands with the knowledge of the owner shall be subject to a mechanic's lien, to charge the intcrest of the owner of the soil, if such knowledge be alleged and proved.

4. Under Code Civil Proc. Cal. § 1187, which provides that the notice of mechanic's lien filed shall contain "a statement of his demand, * * * with a statement of the terms, time given, and conditions of his contract," the notice need not state the value of the labor or materials furnished, nor give an itemized account of the labor and materials for which liens are claimed, nor state facts showing a performance of the contract.

5. The allowance of $250 attorney's fees, in an action to foreclose 11 mechanics' liens, is reasonable.

Commissioners' decision. Department 2. Appeal from superior court, Humboldt county; J. J. DE HAVEN, Judge.

Action by William S. Jewell, appellee, against Charles T. McKay, W. F. Harmon, and C. S. Ricks, appellants, to foreclose 11 mechanics' liens, of which plaintiff filed one and was the assignee of the others. The court found for plaintiff on seven of the liens filed, and allowed plaintiff $250 for attorney's fees in foreclosing the liens. Judgment thereon. Defendants appealed. Code Civil Proc. Cal. § 1187, provides that notices of mechanic's lien, when filed, shall contain "the name of the owner, or reputed owner, if known," of the premises affected; and shall also contain "a statement of his [claimant's] demand,

* *

with a statement of the

terms, time given, and conditions of his contract." Section 1192 provides that "every building * * * constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with" this act, unless the owners or claimants shall give notice within three days after obtaining knowledge that they will not be responsible for the same.

John A. McQuaid and C. M Wheeler, for appellants. J. G. H. Weaver and E. W. Wilson, for appellee.

HAYNE, C. This was a suit to foreclose 11 mechanics' liens, which are set forth in separate counts of the complaint. The liens claimed were for labor and materials furnished to McKay and Harmon in the alteration and repair of a building owned by them. The ground upon which the building stood did not belong to McKay and Harmon, but belonged to one Ricks, whose interest was sought to be charged on the theory that he had knowledge of the work, but did not give notice that he would not be responsible therefor, as required by section 1192 of the Code of Civil Procedure. The trial court gave judgment for the defendants upon the third, fourth, fifth, and tenth counts; and, as the plaintiff has not appealed, these counts are not before us for consideration. Judgment upon the other counts was given for the plaintiff, and the defendants appeal therefrom, and from certain orders in relation to costs.

1. The appellants base objections upon the fact that the complaint alleges that the name of one of the employers was "W. F. Harmon," while some of the notices of lien designate him as "Fred Harmon," and some as "Frank W. Harmon." The first count, however, has the following allegation: "That said defendant W. F. Harmon is the same person referred to in said verified claim as Fred Harmon,' and that said defendant was usually known, designated, and called Fred Harmon.'" Each of the other counts has a similar allegation with reference to the name stated in the corresponding notice of lien, and the court found as follows in relation to it: "That the defendant W. F. Harmon is called and known sometimes as Fred Harmon,' and at other times and by other persons as Frank Harmon;' that is to say, that he is called both by the name of Fred' and Frank' Harmon, and the evidence does not disclose of what particular Christian name the letter F preceding the name of Harmon is the initial." This finding is not attacked by the specifications, and, under the circumstances, we think that the objections are not well taken.

2. It is contended that the demurrer for ambiguity, etc., should have been sustained, in the first place, because the complaint does

not state the nature of the alterations or repairs made; and, in the second place, because it does not appear from the complaint "whether each person performed a separate job, or contributed to a separate alteration or repair, or whether all contributed to the same thing." We do not think there is any merit in these positions, and the other matters in this connection do not require special notice.

3. It is objected that some of the notices of lien do not state that the owner of the soil had personal or actual knowledge that the work was being done, and that the other notices contained no statement on the subject. But, while the knowledge is to be alleged and proved in order to charge the interest of the owner of the soil, (Code Civil Proc. § 1192) it need not be stated in the notice of lien. What the notice must contain is prescribed by section 1187, which does not require the matter in question. The knowledge, etc., was alleged and established, which was all that was necessary.

4. It is contended that the notices do not give any items, and are not sufficiently particular in statement. In this regard the notices contain the following statements, respectively: Jewell, (in first count:) That said Jewell "furnished materials to be and which were actually used," etc. That said | Harmon and McKay "entered into a contract with said Wm. S. Jewell, under and by which said Jewell was to furnish the materials for the construction, alteration, and repair of said building, and the following is a statement of the terms, time given, and conditions of said contract, to-wit: That said Wm. S. Jewell was to furnish said materials, and the same were to be paid for in cash, gold coin, upon the delivery thereof to said Charles T. McKay and Fred Harmon by said Wm. S. Jewell. * * *That the amount of the contract price for said materials furnished as aforesaid is $101.27 in U. S. gold coin." Wilds, (in second count:) "That said Wilds performed certain work and labor in the construction, alteration," etc. "That on the 10th day of October, A. D. 1886, said F. H. Wilds entered into a contract with said Frank W. Harmon and Charles T. McKay, whereby he was to work on said building in making said alterations and repairs for the sum of $3 per day, payable when he quit work. The following is a statement of the terms, time given, and conditions on which said work and labor was performed, to-wit: It was to be paid for in lawful money of the United States when he quit work on said building. * * * That said F H. Wilds commenced said work and labor on said alterations and repairs of said building on the 11th day of October, A. D. 1886, and finished said work and labor on the 6th day of December, | A. D. 1886, and on that day quit work. That said work and labor, performed as aforesaid, amounts to the sum of $104, in lawful money of the United States." Graham, (in sixth count:) That said Graham "performed cer

items of the account. Nothing more was required than a statement of the demand, showing its nature and character, and the amount due or owing thereon." See, also, Selden v. Meeks, 17 Cal. 131; Heston v. Martin, 11 Cal. 41; Davis v. Livingston, 29 Cal. 283. The provision under which the present liens were filed (Code Civil Proc. § 1187, as amended in 1874) required that the notice should contain a statement "of his demand," "with a statement of the terms, time given, and conditions of his contract." The word "demand" was construed in Brennan v. Swasey, above quoted, and under that decision it must be held that that word does not mean an itemized account. Does the other clause, viz., "the terms, time given, and conditions" of the contract, require such an account? There are many contracts which deal with details of quantity, time, value, etc.

But even with regard to such contracts it seems questionable whether it is necessary for the notice of lien to set forth items. Even in a pleading, "it is not necessary for a party to set forth the items of an account therein alleged." Id. § 454. And we cannot think that the statements in a notice of lien are required to be made with greater fullness or formality than is necessary in a pleading. We are not prepared to say that as much fullness or formality is required. And it seems probable that even in the case of a contract which went into details of amount, etc., a general statement thereof would be sufficient in the notice of lien. But it is not necessary to express a definite opinion upon this question; for it is obvious that there are many contracts which do not go into details of amount, time, value, etc. For example, a contractor may go to the owner of a lumber yard and say: "I am building such and such a building. Will you let me have lumber for it, as I need it, at ruling rates?" If this should be agreed to, and the lumber supplied, without anything further being said, it seems plain that an itemized account would not be involved in a statement of the "terms, time given, and conditions" of the contract. So, if a laborer should be employed at a fixed rate for an indefinite period, the number of days he worked would not be a part of the contract, and consequently would not have to be stated in the notice. So, if he should be employed without a fixed rate of compensation, such compensation could not be said to be a part of the "terms, time given, or conditions" of the contract. The Code does not require the notice to state implications made by law. For example, if there was nothing but a request for labor or materials, and a silent compliance with it, we do not think that a statement of the implied promise to pay what the labor or materials were reasonably worth would be necessary. It seems to us that the statute requires only the agreement which is expressly made to be stated in the notice. This we understand to be the principle of the decision in Hills v. Ohlig, 63 Cal. 104, where it

was held that if no distinct time was agreed on, but the time of payment was left to the rule fixed by the law on such a state of facts, the "time given" need not be stated. Nor do we think that it is necessary to state facts showing a performance of the contract, or other facts necessary to complete the cause of action. For example, in the cases above put, it would not be necessary to state that the labor and materials were in fact furnished, as provided by the contract, or that they were reasonably worth the sum claimed. The statute does not require the notice to state anything subsequent to or outside of the contract. Tested by the foregoing rules, we think that all the notices of lien were sufficient. The only notices about which there can be any question in this regard are those of Graham and Hulse. And with respect to these we think that the statement that "the following is a statement of the terms,” etc., of the contract, must be taken to mean the only terms which were in fact agreed upon; and upon this construction the notices are sufficient. The counsel fees were properly allowed, and we think were reasonable in amount.

We have noticed all the points of counsel which we think require special notice. There may be other objections to the notices of lien, but we do not think it is incumbent on us to raise them. We therefore advise that the judgment and orders appealed from be affirmed.

(82 Cal. 275) JACKSON. BROWN et al. (No. 12,527.) (Supreme Court of California. Dec. 31, 1889.) APPEAL NOTICE-CONSENT JUDGMENT-AUTHORITY OF ATTORNEY.

1. Where a judgment, by consent of counsel of all parties, is rendered in an action of damages for trespass against three defendants, and one of them appeals from an order denying his motion to vacate it, notice need not be served on his co-defendants.

2. Where an appeal is taken from a consent judgment by one of the defendants, who swears that his co-defendants were unauthorized to employ counsel for him and consent to said judgment, but said co-defendants testify that they were authorized to employ an attorney and compromise or settle the action, and the counsel who appeared for appellant testifies that he had no personal communication with appellant, but was employed through the co-defendants, an appellate court will not reverse on the ground that the lower court erred in denying the motion to vacate the judgment.

Department 2. Appeal from superior court, city and county of San Francisco, WALTER H. LEVY, Judge.

This was an action of damages for trespass, brought by Jackson against Brown, Alexander, and Samuels. There was a judgment by consent entered, which Samuels