T. J. Fording, J. P. Hight, and Harris & Gregg, for appellant. John W. Mitchell, for respondent.

GAROUTTE, J. This is an appeal from a judgment of the superior court of the county of San Bernardino commanding the board of supervisors of said county to take action on the claim of plaintiff, filed on the 27th day of October, 1891, before the said board of supervisors, by approving or rejecting the claim. Plaintiff filed a claim against the county of San Bernardino, based upon the same contract which is relied upon in the present litigation, and the claim was rejected by the board. After six months had expired from the date of such rejection, but within one year from the day when the liability accrued, plaintiff filed a second claim, based upon the same contract. The board of supervisors refused either to reject or approve this claim, upon the ground that the same claim had been previously rejected, and the law did not require further action in the premises, and this proceeding by mandamus followed.

There is no issue of fact in the case. Both claims are before the court, and the only question to be determined is, upon a comparison can it be said that there is a material difference between these claims? We believe they differ in some important respects. The contract for the bridge work provided, among other things, that the contract price was payable upon the presentation of the written certificate of the superintendent of construction of said bridge that said bridge has been erected and completed in every respect in accordance with the terms of the contract. The production of the certificate of the superintendent of construction before the board of supervisors was a necessary condition to the allowance of the claim. This certificate, bearing date October 27, 1892, is attached to the second claim presented, but was not attached to the first; and, viewed in the light furnished by its date, could not have been issued at that time. Again, the contract provides that the contractor shall be paid in warrants drawn upon the fund known as the "First Road District Fund of San Bernardino County." The second claim is presented upon that basis, and asks for warrants upon such fund, but the original claim was against San Bernardino county, and for the sum of $5,500. There may have been, and very probably was, a material difference in the value of warrants drawn upon the various road district funds of the county. The claim upon its face, if indicating anything in this regard, would suggest that a warrant upon the general fund of the county, rather than upon any special road district fund, was expected and claimed. Upon a careful inspection of the first claim presented, we are not prepared to say that upon its rejection by the board of supervisors it was sufficient upon its face, even aside

from the lack of the certificate of the superintendent of construction, to support an action for the recovery of a judgment of $5,500 from the county, to be paid in warrants at par drawn from the fund known as the "First Road District Fund of San Bernardino County." Those were the provisions of the contract, and the claim should have been sufficiently full and explicit to form the basis of such an action. The second claim presented appears to cover all these grounds, and, in addition thereto, a copy of the contract is attached. For these reasons we con-clude that the claims are materially different. Let the judgment be affirmed.

We concur: HARRISON, J.; PATERSON, J.

(4 Cal. Unrep. 130) GRANGERS' BANK OF CALIFORNIA v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO. (No. 15,323.) (Supreme Court of California. Aug. 19, 1893.). WRIT OF PROHIBITION-ACTIONS TO RECOVER REALTY.

Under the constitutional provision that actions for the recovery of real estate shall be commenced in the county in which it is situated, a writ of prohibition will issue to a court entertaining such an action, for real estate outside the county, though an accounting is also asked as to the rents and profits, and though various proceedings had been had in the action, without any question as to the jurisdiction of the court.

In bank.

Application of the Grangers' Bank of California for writ of prohibition to the superior court of the city and county of San Francisco, department 6; William T. Wallace, Judge. Writ granted.

Pillsbury, Blanding & Hayne, for petitioner. Geo. W. Towle, Jr., and H. S. Foote, for respondent.

GAROUTTE, J. This is an application for a writ of prohibition, and the following state of facts is disclosed by the petition: The Grangers' Bank of California was the owner of certain warehouses, situated in the counties of Fresno, Tulare, etc., some of these warehouses being erected upon the lands of the bank, and others on the lands of the railroad company, leased to the bank by that corporation. Upon the 6th day of January, 1890, the bank entered into a contract of sale with one W. G. Ross, wherein it was agreed, among other things, that said Ross should pay the bank $49,000, at the times and in the manner therein provided, and in consideration thereof the bank agreed to sell and transfer to said Ross these warehouses, together with all scales, platforms, etc., belonging to said warehouse business. It was provided that the title to the warehouses should not vest in Ross until the money was paid as covenanted. It was further understood that the interest of the

bank in and to the ground upon which the warehouses were situated should pass to Ross upon the consummation of the saie. The right of re-entry by the bank upon default upon the part of Ross was also a condition of the contract. Under this agreement Ross entered into the possession of the warehouses, and in the fall of the year 1890, being largely indebted to the bank, made an assignment of all the property referred to in the contract to one Showers, for the purpose of securing his liability to the bank, and Showers thereupon took possession thereof. About January 1, 1891, the bank, claiming that Ross had forfeited his rights under the contract by reason of certain defaults on his part, took possession of the property, claiming to be the true owner, and ever since has had such possession. Thereafter Ross commenced an action in the superior court of the city and county of San Francisco against Showers and the bank, alleging, among other matters, that his indebtedness to the bank is more than offset by the receipts from the rents, issues, and profits of the business; that the contract has not been forfeited, and he has demanded the possession of the warehouses, which has been refused; that the use and occupation are of great value, and he prays for an accounting as to the rents, issues, and profits; that the bank deliver to plaintiff the warehouses, platforms, etc., referred to in the contract; that the bank be declared to be paid in full from such rents and profits; that he be declared to be the owner thereof; and that said contract be held to be in full force and effect. Issue was joined upon the complaint, and during the pendency of the action an application to the trial court for the appointment of a receiver was made, and the defendant bank brought this proceeding to restrain the court from making such appointment, upon the ground that such act would be in excess of jurisdiction. In addition to the foregoing matters, the petitioner alleged that the present status of the case of Ross v. Showers et al. is such that the only substantial issues involved relate to the right of possession, recovery of possession of its warehouses, and the rents, issues, and profits thereof. The petitioner further alleged that said warehouses were real estate. The return to the alternative writ is made by Ross, the real party in interest, and consists principally of the affidavit presented by him to the lower court upon his application for the appointment of a receiver. No denial is found anywhere in such return as to the allegations of the petition pertaining to the nature of the issues at present involved in the litigation of Ross v. Showers et al., and neither is there a denial of the allegation of the petition that said warehouses were real estate. Petitioner insists that the writ should issue, in this: That the appointment of a receiver would be an act in excess of the

jurisdiction of the trial court, and that said excess of jurisdiction consists in (1) that a receiver in the case is not authorized by section 564 of the Code of Civil Procedure; (2) that the property involved in the litigation is realty situated in Fresno and Tulare counties, and it follows therefrom that the superior court of the city and county of San Francisco has no jurisdiction of the subjectmatter of the action.

We have not stated all the facts disclosed by the record bearing upon petitioner's first ground of contention, as we shall not discuss it; being satisfied that the second ground relied upon has sufficient merit to entitle it to the relief demanded. It is to be regretted that counsel opposing the application has not seen fit to attempt to enlighten the court, either in his oral argument or brief, upon the merit of appellant's contention in this regard. His only answer thereto is set out in his return, and appears to partake of the character of a plea of the statute of limitations or of estoppel. It is as follows: "That the suit of Wiam G. Ross vs. Andrew Showers et al., in said writ referred to, has been pending before respondent since, to wit, the 12th day of January, 1891, and jurisdiction of respondent in the matter of said suit has not, during all the times since said 12th day of January, 1891, to and until, to wit, the 17th day of March, 1893, been called in question; that during said time respondent has had submitted to it by the parties to said suit, both plaintiff and defendants, numerous questions of fact and of law, and the same have, when so submitted, been decided by respondent without any objection made to the jurisdiction of respondent in the premises." In answer to the foregoing statement, it is sufficient to say the jurisdiction of the trial court is now directly assailed, and, giving counsel's allegations full credit, they avail nothing in resisting such attack.

The present status of the case of Ross vs. Showers, as disclosed by the facts we have stated, indicate it to be an action to recover the possession of real property, and for an accounting as to the rents, issues, and profits thereof. It also appears that said real property is not situated in the county where the action was commenced and is now pending. For these reasons the superior court of the city and county of San Francisco, where the action was brought, has no jurisdiction over the subject-matter. This question was directly passed upon, and the law declared, in the case of Fritts v. Camp, 94 Cal. 394, 29 Pac. Rep. 867, which decision has been followed in the recent case of Pacific Yacht Club v. Sausalito Bay Water Co., (decision filed June 8, 1893,) 33 Pac. Rep. 322. The fact that an accounting is asked as to the rents, issues, and profits of the warehouses in no way mili tates against the position that the action is for the recovery of real property. Such

is the usual course in that character of action, and the claim for rents and profits is purely incidental to the main relief sought. In a question of the kind here presented, we are bound by the provisions of the constitution; and the provisions of the Code of Civil Procedure pertaining to the matter of a change of venue and the proper county in which to commence actions avail nothing as against the declaration of the constitution of the state "that all actions for the recovery of the possession of real estate * 串 * shall be commenced in the county in which the real estate, or any part thereof affected by such action, is situated." As was said in the concurring opinion in the case of People v. Wong Ark, 96 Cal. 138, 30 Pac. Rep. 1115, upon the jurisdiction of this court: "As the legislature has no power to grant the court jurisdiction, it has no power to deprive the court of jurisdiction. The jurisdiction of the court came from a source of power above and beyond the legislature of the state, and the court can only be deprived of it by the source from whence it came."

For the foregoing reasons, let the writ issue as prayed for.

We concur: DE HAVEN, J.; HARRISON, J.; MCFARLAND, J.

(99 Cal. 333)

PEOPLE v. NONELLA. (Supreme Court of California.

(No. 20,959.) Aug. 17, 1893.) IMPEACHMENT OF WITNESS-LAYING FOUNDATION -CRIMINAL LAW.

1. On a prosecution for assault with intent to kill, defendant's wife was asked if she did not tell one B. that defendant had intended to do the shooting some weeks earlier, and that defendant had made her pursue a certain course of action, which statement she denied having made. Held that, as such evidence did not bear directly on the shooting, the witness could not be impeached by a question asked of B. as to what she had told B. about the shooting.

2. In examining an impeaching witness, he should be asked the direct question whether the witness sought to be impeached made the alleged contradictory statement at the time and place mentioned.

Department 1. Appeal from superior court, San Luis Obispo county.

Sylvester Nonella was convicted of assault with intent to commit murder, and appeals. Reversed.

Graves & Graves and L. Lamy, for appellant. Atty. Gen. Hart, F. A. Darn, and E. P. Unangst, for the People.

GAROUTTE, J. Defendant was convicted of the crime of an assault with intent to commit murder, and appealed from the judgment and order denying his motion for a new trial. The motion for a new trial should have been granted by reason of error committed by the court in admitting improper evidence before the jury. Mrs. Nonella, wife of the defendant, was an eyewitness to the affray, and testified in behalf of her hus

band. Upon cross-examination she was asked the following questions, which were answered in the negative: "Didn't you tell Mrs. Bassi the night of the 22d of February, when no one was present but you and Mrs. Bassi, and in the garden near your house, that your husband intended to shoot him some weeks before that? Didn't you tell Mrs. Bassi, at the same time and place, when no one was present but you and Mrs. Bassi, that you didn't want to go out and speak to Firanzi, but your husband made you do it?" Objections were made to these questions upon various grounds, which were overruled, the district attorney stating that his only object in asking them was for the purpose of laying a foundation to impeach the witness. Owing to other matters which will hereafter receive our attention, we do not find it necessary to review the rulings of the court regarding the admissibility of this evidence, especially in view of the fact that the answers were in the negative, and consequently no harm could have resulted to defendant thereby.

In rebuttal, the district attorney, for the purposes of impeachment, placed the witness Mrs. Bassi upon the stand, and she was asked: "What did she tell you about the shooting? Leave out all that outside matter." This question was objected to, upon the ground that it was "irrelevant and incompetent; that no foundation had been laid for the impeachment of Mrs. Nonella; and that no declaration made by Mrs. Nonella to her about the shooting, or any fact connected with the shooting, is binding upon the defendant;" but the objections were overruled. It will be noticed that the question by the district attorney, "What did she tell you about the shooting?" (referring to what defendant's wife had told her,) was hearsay evidence as to the res gestae of the offense charged, and, coming from the wife, was well calculated to weigh heavily against the cause of the defendant. Being hearsay evidence, it could only be admitted for the single purpose of impeaching the testimony of Mrs. Nonella, by showing that her previcus statements as to the circumstances of the affray were inconsistent with those made by her when upon the witness stand, and it appears to have been offered and admitted for that purpose. The foundation for such a question was not laid when Mrs. Nonella was upon the stand. Upon an inspection of the two questions addressed to her, touching her conversation with Mrs. Bassi, it appears that neither of them in any way referred to the actual shooting of the prosecuting witness. In order that a witness may be impeached in this manner, the stat ute (section 2052, Code Civil Proc.) demands that the attention of the witness should be drawn with particularity to the circumstances surrounding the making of the statement, and his mind directed to the very statement itself, and, if in writing, such

writing must be shown to the witness. Those requirements are demanded by the statute in order that all the light possible may be cast upon the scene, so that the witness' recollection may be refreshed, and his answer to the interrogatory direct and positive. Such being the fact, the proper course when the impeaching witness is produced is to ask him the direct question, "Did the party make such statement at the time and place mentioned?" In fairness to the witness to be impeached, and in order that the testimony may be of any value for impeachment purposes, such course should be pursued, and for the further reason that such a course will best serve the purpose of keeping from the jury irrelevant and incompetent matter. Beyond all doubt, such should be the rule when opposing counsel object to the question as being too broad and general. The authorities of other states and the text writers upon the law of evidence are not entirely harmonious as to the true rule, but in the case of People v. Lee Ah Yute, 60 Cal. 95, the practice of asking a direct question was held to be proper; and we are satisfied, for the reasons here stated, such should be the course adopted. The question, "What did she tell you about the shooting?" was objectionable even under those authorities which hold it improper to ask a leading question. As already indicated, it did not cover or even refer to the subject-matter involved in the questions addressed to Mrs. Nonella. those questions not a word is found as to the shooting. One inquiry was addressed as to what the defendant determined to do two weeks before the date of the affray, and the other pertained to alleged acts of the defendant, directed towards the witness, his wife. In response to the question addressed to Mrs. Bassi, she proceeded to state, among other things, that Mrs. Nonella told her that "her husband run inside, and got the rifle, and shot the prosecuting witness." Such evidence was prejudicial to defendant, and clearly objectionable, being the purest hearsay. Considered for the purposes of impeachment, it was objectionable, no such inquiry being addressed to Mrs. Nonella when upon the stand, and consequently no foundation existing upon which to base the inquiry. It becomes unnecessary to consider other assignments of error. For the foregeing reasons it is ordered that the judgment and order denying a new trial be reversed and the cause remanded.

In

We concur: BEATTY, C. J.; HARRISON, J.

(99 Cal. 336)

FANNING v. FOLEY et al. (No. 15,023.) (Supreme Court of California. Aug. 17, 1893.) SERVICE OF PROCESS-VALIDITY-INFANT DEFENDANTS.

1. Where a summons has been returned, it is functus officio, and subsequent service on defendant of a copy made by plaintiff from the files of the court is a nullity.

2. In an action against an infant, service on his guardian alone, without appearance by either defendant or the guardian, will not support a judgment by default.

3. Defendant cannot be served with process 11 years after the filing of the complaint.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by E. Fanning against Thomas Foley and others. From orders setting aside a decree, and dismissing the action for want of prosecution, plaintiff appeals. Affirmed.

J. M. Wood, for appellant. Mastic, Belcher & Mastic and Frank J. French, for respondents.

TEMPLE, C. This action was commenced November 1, 1879, in the district court of the twenty-third judicial district, to foreclose a street assessment, and the summons was issued on the same day. November 4th it was served upon certain named defendants, none of whom, as is now admitted, had or ever had any interest in the premises upon which it is sought to foreclose the lien. It is admitted that Joseph D. Gaven was the sole owner of the premises, and continued to be so up to the time of his death, after which his executor sold the land to one Capurro. Gaven was made a defendant, but was not served with summons. It is averred in the complaint that he was a minor, and Mrs. Sarah Ann English was served as his guardian. She made no appearance, and her default was entered as guardian of Gaven. Of course this was of no consequence, as it bound neither Mrs. English nor her ward. The summons was not returned until August 13, 1889, at which time it was filed. September 25, 1891, plaintiff made a copy of this summons without taking it from the files, and handed such copy to Capurro. An affidavit was made on behalf of plaintiff to the effect that the affiant had duly served the summons on Capurro by handing him a copy thereof. This affidavit does not appear to have been filed, but, as is stated, was attached to the summons which had been previously filed,— pinned to it, as is stated in the notices; whether with or without the knowledge of the custodian of the record does not appear, save from the presumption that plaintiff's counsel would not have done such a thing clandestinely. Capurro was never made a party to the suit in any way, nor was he served as John Doe, although such a person appears to have been a defendant. Furthermore, the suit was dismissed as to John Doe by plaintiff. Capurro did not appear in the case by any pleading.

January 29, 1891, a decree was entered in the superior court before Hon. F. W. Lawler, J., foreclosing plaintiff's lien. The decree does not run against Capurro. On motion of Mrs. Sarah A. English, this decree was set aside and vacated September 21,

1891. Mrs. English then gave notice of a motion to dismiss the action because not prosecuted with reasonable diligence. Capurro also moved to quash the service of summons upon himself, and separately, as successor in interest to Gaven, gave notice of a motion to dismiss the action for want of prosecution. Both motions were granted, and plaintiff appeals from all these orders.

It is obvious that all these orders must be affirmed. The decree was absolutely void, and the court was right in removing it from the record. The owner of the fee had never been brought in by appearance or service, and, had Gaven been alive, he could not have been served at the time of the attempted service upon Capurro. It was 11 years after filing the complaint. The summons, having been returned, was functus officio. If the practice adopted by plaintiff can be sustained, it will practically nullify in part sections 406, 408, and 581 of the Code of Civil Procedure.

The fact that Capurro

purchased the interest of Gaven after suit brought did not ipso facto make Capurro a defendant. Gaven had never been served, and had not appeared in the suit, and it was then too late effectually to bring him in, had he been alive. Perhaps, had Gaven been alive, Capurro might, under our Code, have appeared and defended in the name of Gaven, or have had himself substituted as defendant, but plaintiff could not at will, without any action on the part of the court or Capurro, consider and treat him as such. The action was properly dismissed. Under the Code, plaintiff had lost his right to bring in the real defendant, and it was of no benefit to him to keep the suit pending. Capurro, as purchaser from Gaven, had such an interest as would authorize him to make the motion. Capurro appeared for that purpose only after the decree had been vacated. Even if it must be considered as a general appearance in that case, it would not help plaintiff. Capurro was entitled to the relief granted. I advise that the orders appealed from be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the orders appealed from are affirmed.

(4 Cal. Unrep. 312)

PEOPLE v. ACEVEDO. (No. 20,955.) (Supreme Court of California. Aug. 16. 1893.) Department 1. Appeal from superior court, Los Angeles county; B. N. Smith, Judge.

Albert Acevedo was convicted of burglary, and appeals. Affirmed.

C. C. Stephens, for appellant. Atty. Gen. Hart, for the People.

1. Act April 28, 1855, to provide for the sale of the swamp and overflowed state lands, (section 18,) limits the provisions of the act to the swamp lands granted to the state by Act Cong. Sept. 28, 1850, under which lands owned by the state by virtue of its sovereignty, including the beds and shores of navigable streams below high-water mark, could not be sold or conveyed. Held, that patents of certain surveys of such swamp lands on Eel river, issued after the channel in such river changed by a freshet, and which described the lands as bounded on such river, conveyed to the grantees the land to high-water mark only, according to the new channel, and did not convey any part of an island formed on the opposite side of such channel by the change, though part of such island is within the lines of the original surveys made prior to such change.

was

2. Where such island does not consist of part of such original surveys left intact by the change in the channel, but was formed of deposits within the lines of such surveys, the island is the property of the state, under Civil Code, § 1016, which provides that islands and accumulations of land, formed in the beds of navigable streams, belong to the state, if there is no title or prescription to the contrary.

3. St. 1859, p. 298, entitled "An act to regulate salmon fisheries on Eel river in Humboldt county," (section 2,) provides that the owners of land fronting such river shall have exclusive right and privilege of casting, hauling, and landing seines and nets on their own water fronts; and, for the purposes of this act, all bars and the bed of such river lying between the lines of the official survey and extreme low-water mark shall be deemed and held to be the water front of the landowner whose lines border on such river or run nearest thereto. Held that, where the bed of such old channel is above low-water mark, but below highwater mark, the owner of the land separated from such island by the old channel has the exclusive right to the fishing privilege on such island.

4. Since the owners of the land separated from the island by the new channel owned no part of the island, they could acquire no right to the fishing privilege by adverse possession of such island, since such privilege is a right which attaches to the ownership of the land on the opposite side of the old channel, and can only be acquired by obtaining title to such land.

5. Under St. 1859, p. 298, § 5, which declares that any person who shall cast, haul, or draw any seine or net, not having the right to do so, shall be deemed a trespasser, and may be convicted of a misdemeanor, a person cannot acquire a fishing privilege by adverse posses