on the courts on writ of review, since Code Civil Proc. § 1074, provides that the review on such writ cannot be extended further than to determine whether the inferior tribunal or board has regularly pursued its authority. 6. Even if the fact that property has been so omitted is necessary to give the board jurisdiction, the court cannot review the evidence to determine whether there was evidence to show such fact, since the fact is one to be determined by the board. Farmers & Merchants' Bank v. Board of Equalization, 32 Pac. Rep. 312, 97 Cal. 318, followed. In bank. Appeal from superior court, Los Angeles county; William P. Wade, Judge. Petitions by the Security Savings Bank & Trust Company, Main Street Savings Bank & Trust Company, and Los Angeles Savings Bank for a writ to review an order of the board of supervisors of Los Angeles county, sitting as a board of equalization, directing property to be added to the assessments of petitioners. From a judgment annulling the order the board appeals. Reversed. James McLachlan, Waldo M. York, and B. M. Marble, for appellant. Graves, O'Melveny & Shankland, for respondents. PER CURIAM. In Farmers' & Merchants' Bank v. Board of Equalization, 97 Cal. 318, 32 Pac. Rep. 312, most of the questions involved in this appeal were determined adversely to the respondent. The additional point now presented, that the legislature could not confer upon the state board of equalization authority to extend the time within which the county board of equalization could act, must also, under the principles declared in that case, be determined against the respondent; and, upon the authority of that case, the judgment is reversed. (99 Cal. 631) DE CAMP LUMBER CO. v. TOLHURST et ux., (WOODWORTH COMMERCIAL CO., Intervener.) (No. 19,182.) (Supreme Court of California. Oct. 7, 1893.) MECHANICS' LIENS-ATTORNEYS' FEES. Code Civil Proc. § 1184, relating to mechanics' liens, requires that "25 per cent. of the whole contract price shall be made payable at least 35 days after the final completion of the contract. Sections 1193, 1195, authorize a claimant, on establishing his lien, to recover costs and an attorney's fee. Held, in an action by a material man to enforce his claim against the 25 per cent. of the contract price retained by the owner, that the costs and attorney's fee are chargeable against the premises where the sum so retained was not sufficient to satisfy the claim, and the contractor suffered a default, while the owner contested the claim. Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; W. H. Clark, Judge. Action by the De Camp Lumber Company against Shelley H. Tolhurst and wife and John A. McCarty to enforce a lien for materials furnished to defendant McCarty to be used in the construction of a house which McCarty was building for defendant Tolhurst. The Woodworth Commercial Company intervened for the purpose of enforcing its lien for materials furnished. There was a judgment in favor of the lien claimants, and defendants Tolhurst and wife appeal. Affirmed. S. P. Mulford, for appellants. Chas. Cassat Davis, for respondent. BELCHER, C. In September, 1891, John A. McCarty entered into a written contract with Shelley H. Tolhurst, appellant, to furnish the materials and construct for him on a lot in the city of Los Angeles a dwelling house with fences and other structures, for the sum of $2,275. The contract was duly recorded, and by its terms 25 per cent. of the whole contract price was made payable 35 days after its final completion. The De Camp Lumber Company, respondent, under contract with McCarty furnished materials which were used in the construction of the building, of the value of $1,023.54, of which sum $532.14 was still due and unpaid at the time of the commencement and trial of this action. The Woodworth Commercial Company, respondent, under contract with McCarty, also furnished materials which were used in the construction of the building, of the value of $69.48, no part of which sum had been paid. The building, fences, and other structures were completed on December 5, 1891, and on January 2, 1892, each of the respondent companies filed in the office of the county recorder of Los Angeles county its claim of lien for the materials furnished, in proper form, and duly verified. The De Camp Lumber Company commenced this action against the appellants and McCarty, the contractor, to foreclose its lien. The Woodworth Commercial Company intervened, and filed a complaint for the foreclosure of its lien. McCarty failed to appear, and allowed his default to be entered. The appellants answered both complaints, and denied all their material averments. The case was tried, and the court found upon all the issues in favor of the respondents; and, among other things, that 25 per cent. of the contract price-that is, $568.75-still remained in the hands of appellants, and that $75 was a reasonable attorney's fee to be allowed to each of the respondents. And as conclusions of law it found that each respondent was entitled to judgment against McCarty for the amount of its claim, with interest thereon from December 5, 1891, to the date of the judgment, and for costs of suit, including $75 for attorney's fee, the two claims aggregating, for principal and interest, $629.25; and also that re spondents were entitled to a decree against appellants for the sale of the said house and lot, and the application of $568.75 of the proceeds thereof to the payment of the said judgments in proportion to their respective amounts, and for the application of so much of the balance of such proceeds as might be necessary to pay the said costs and attorney's fee. Judgments and decree were accordingly so entered, and the appeal is from that part of the decree directing the payment of the costs and attorney's fee out of the proceeds of the sale. The costs and attorney's fee amounted in the aggregate to $206.35, and whether or not the appellants could rightly be subjected to the payment of that sum, or any part thereof, is the only question presented for decision. It is urged on behalf of the appellants that they were not personally liable for the debts of the contractor to any lienholder for materials or labor furnished, and that, if they had paid the demands of respondents before the final determination of the action, they would have done so at their peril, and would have imposed upon themselves the burden of proving that the demands paid were valid debts of the contractor, and secured by valid liens on their property; and that, failing to do this, they would have had no recourse against the contractor for indemnity; and hence it is insisted that the 25 per cent. of the contract price, $568.75, which still remained in their hands, was the extent and limit of their liability. Section 1193 of the Code of Civil Procedure provides that the contractor can recover on a lien filed by him only such amount as is due to him according to the terms of his contract; that he shall defend any action brought to enforce a lien for work done or materials furnished by a subcontractor at his own expense, and that during the pendency of such action the owner may withhold the amount of money for which the lien is filed; that in case of judgment against the owner or his property upon the lien the amount of such judgment and costs may be deducted by the owner from the amount due or to become due by him to the contractor, "and if the amount of such judgment and costs shall exceed the amount due by him to the contractor, or if the owner shall have settled with the contractor in full, he shall be enutled to recover back from the contractor any amount so paid by him, the said owner, in excess of the contract price, and for which the contractor was originally liable." And section 1195 of the same Code provides: "The court must also allow as part of the costs the money paid for filing and recording the lien, and reasonable attorneys' fees in the superior and supreme courts, such costs and attorneys' fees to be allowed to each lien claimant whose lien is established, whether he be plaintiff or defendant." These sections clearly recognize the rights of the successful lien claimant to recover his costs and a reasonable attorney's fee, and the only question is, can the payment of such costs and fee be enforced against the owner under circumstances such as are shown here? Section 1184, Code Civil Proc., requires that "at least twenty-five per cent. of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract." This provision was evidently inserted for the protection of subcontractors, material men, and laborers, thus giving them, if unpaid, ample time after the work is completed to file their claims of lien and secure payment of any sums of money due them. After the completion of the contract the owner holds the reserved money for payment to the contractor or lien claimant, as the one or the other may prove to be entitled to it. If there be a contest between them in regard to the money, it is a matter for them to settle between themselves, and at their own expense, and with which the owner has no concern. In such a case the owner may and should deposit the money in court, and let the contestants then have their rights determined. In this case there was no contest between the contractor and respondents. By permitting his default to be entered, the contractor, in effect, admitted that respondents were entitled to the money. The appellants, however, retained the money, and apparently without cause or right raised a contest on every point, and fought the case through to the end. By so doing they delayed the respondents in recovering money to which they were justly entitled, and put them to unnecessary expense. Under such circumstances, we think the respondents' costs and attorney's fee were properly allowed and made payable out of the proceeds of the property ordered to be sold. The decree should therefore be affirmed. COUNTY SUPERVISORS-CONTRACTS. Act March 14, 1883, (County Government Act,) authorizes the county board of supervisors to issue bonds, and provides that the bonds shall be delivered to the county treasurer, by whom they shall be sold to the highest bidder. Section 25 further authorizes the board to do "all other acts and things * ** which may be necessary to the full discharge of the duties of the legislative authority of the county government." Held, that the board did not have authority, under section 25, to employ an agent to procure bids to be made for such bonds. Department 2. Appeal from superior court, Los Angeles county. Action by Aaron Smith against the county of Los Angeles to recover for services performed under a contract with the county board. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed. Houghton, Silent & Campbell, for appellant. James McLachlan, B. M. Marble, and Waldo M. York, for respondent. PER CURIAM. The complaint in this action substantially alleges that the board of supervisors of Los Angeles county, after a favorable election had for that purpose, duly authorized the issuance of 300 bonds, in denominations of $1,000 each, bearing interest at the rate of 5 per cent. per annum, for the erection of a county courthouse; that said bonds were duly executed and delivered to the county treasurer for sale, and that he, in pursuance of law, thereafter advertised for and invited bids for said bonds; that no bona fide bid had been made for any of the bonds, and that no sale thereof was or could be made until a bid for 110 of said bonds was procured and caused to be made by plaintiff, in pursuance of his employment by the board of supervisors to procure a bid to be made for said bonds, or a part thereof, by some bidder who would offer and bid therefor a price which said treasurer and said board were authorized by law to accept; that said bid so procured by the plaintiff for 110 of said bonds was accepted, and said bonds so bid for were by said treasurer sold at 5 per cent. premium and accrued interest, to said bidder so procured as aforesaid by plaintiff, and the purchase price thereof paid into the treasury of said county; that said board, acting for said county, agreed to pay plaintiff for such services what they were reasonably worth, and the value of the services so rendered was and is reasonably worth the sum of $3,300; that, within one year after he performed said services, plaintiff duly presented to said board his itemized claim, duly verified, for said services, which claim, and every part thereof, said board refused to allow, and wholly rejected the same. The complaint was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and, upon plaintiff refusing to amend, judgment was given for defendant, and plaintiff appeals. The question to be determined on this appeal involves the power of the board of supervisors to make the contract of employment upon which this action is founded. Section 25 of the act of March 14, 1883, commonly known as the "County Government Act," under which it is claimed such power was conferred, provides that "the board of supervisors in their respective counties have jurisdiction and power, under such limitatious and restrictions as are prescribed by law," to create a bonded indebtedness, and to issue bonds of the county, as provided by ** * section 37 of said act; and subdivision 14 of section 25 provides that, "whenever bonds issued under this chapter shall be duly executed, * * they shall be delivered to the county treasurer, and his receipt taken therefor, and he shall stand charged on his official bond with all bonds delivered to him and the proceeds thereof, and he shall sell the same, or exchange them under the direction of the board of supervisors. * He shall also keep a record of bonds sold or exchanged by him, * * and shall also report, under oath to the board, at each regular session, a statement of all bonds sold or exchanged by him since the preceding report, and the date of such sale or exchange, * * and the amount of accrued interest received by him on such sale or exchange, but such bonds shall not be sold or exchanged for any indebtedness of the county, except by the approval of the board of supervisors of said county. No sale shall be made of any such bond except to the highest bidder, after advertising bids for the purchase of the same" in the manner prescribed. And subdivision 35 of the same section empowers the board "to do and perform all other acts and things required by law not in this act enumerated, or which may be necessary to the full discharge of the duties of the legislative authority of the county government." Section 6 of the same act provides that "all contracts, authorizations, allowances, payments and liabilities to pay, made or attempted to be made in violation of this act, shall be absolutely void, and shall never be the foundation or basis of a claim against the treasury of such county. * * *" And section 36 thereof provides that "the board must not for any pur pose contract debts or liabilities except in pursuance of law." It is clear that these provisions of the statute confer no express power upon the board of supervisors to make such a contract as the one sought to be recovered on in this action; and unless it can be implied from subdivision 35, referred to, then it follows that no such power exists, and the contract sued on is therefore void, because not made in pursuance of law. As the act of March 14, 1883, distinctly enumerates the acts which the board is required to perform with reference to the issuance and disposal of county bonds; and, as the employment of a procurer of bids for bonds delivered to the treasurer for sale or exchange under the law was not in any way necessary to the full discharge of the legislative authority of the county government, no such implied authority to make such a contract was conferred upon the board as contended for. The board of supervisors cannot sell or negotiate the sale of its county bonds. That power is expressly conferred by statute on the county treasurer, and is to be exercised by him under the direction of the board, and the sale or exchange of bonds by him is made subject to the approval of the board; in other words, the bid for the bonds is solicited and obtained upon the advertisement by the treasurer for such bid, and the law recognizes no other mode of procurement. The treasurer alone procures the bid, the mode and manner of such procurement being specifically pointed out by statute. The making of the contract in question by the board of supervisors was an unwarranted, if not a pragmatical, interference with the power and duties of the county treasurer, as expressly conferred and defined by law. It therefore follows that the employment of the plaintiff by the board of supervisors of Los Angeles county to procure a bid or bids for county bonds, delivered to the treasurer for sale or exchange, as alleged, was a void act; and the acts of plaintiff in pursuance of such employment, however beneficial they may have been to the defendant, created no liability àgainst it. Let the judgment be affirmed. (4 Cal. Unrep. 272) SAN GABRIEL VALLEY LAND & WA- 1. In an action to recover an assessment on corporate stock, evidence that the assessment was made on the same day that defendant purchased the stock is sufficient to show that it was made while defendant was the owner of the stock, as it will not be presumed that the assessment was made a fraction of a day before the purchase. 2. A resolution by the board of directors "that the president and secretary are hereby ordered to commence suit for the collection of assessment" on stock sufficiently shows a waiver of further proceedings under the chapter for the collection of delinquent assessments. Department 1. Appeal from superior court, Los Angeles county; W. P. Wade, Judge. Action by the San Gabriel Valley Land & Water Company against L. W. Dennis to collect an assessment on stock. There was a judgment in favor of defendant, and plaintiff appeals. Reversed. A. H. Judson and M. C. Hester, for appellant. Wells, Monroe & Lee, for respondent. PATERSON, J. This is an action to recover from respondent, who was a stockholder of the plaintiff corporation, the unpaid balance of an assessment upon 1,883 shares of its capital stock. The court below found that the respondent was not, at the time the assessment was levied, the owner of the stock, and that the board of directors had not, before the commencement of this action, elected to waive further statutory proceedings to collect the assessments. was alleged in the complaint that the defendant was at all times mentioned therein the owner and holder of 1,883 shares of the It capital stock of plaintiff, for which he had subscribed and agreed to pay. The answer simply denied that the defendant "ever was at any time owner or holder of 1,883 shares of the subscribed capital stock of said corThis denial in effect admitted poration." that he was the owner and holder of 1,882 shares of the stock. But it is claimed by respondent that the plaintiff, having introduced evidence to prove that Dennis was a stockholder, treated the denial as sufficient, and cannot now be heard to question its sufficiency. But, in order to prove that the defendant was the owner of more than 1,882 shares, to wit, 1,883 shares, the plaintiff was compelled to offer the evidence which he introduced, and the authorities cited by re spondent do not apply. But, however this may be, the evidence showed that the defendant was the owner of the stock. It showed that the assessment was made on the day the certificate of stock was issued. It is true it was not shown by the plaintiff that the purchase of the stock preceded the assessment, but no presumption can be indulged that the assessment was made a fraction of a day prior to the purchase by the defendant of the stock, especially in view of the fact that it was shown that the defendant had paid a portion of the assessment, and requested further time to pay the balance. The court's second conclusion of law is equally untenable. It is based upon the alleged insufficiency of the resolution of the board to show a waiver of further proceedings under the chapter for the collection of delinquent assessments. It is found that all of the proceedings of the board with respect to the assessment were regular and valid, but it is claimed that no action can be maintained under section 349, Civil Code, unless the board in its resolution expressly declared its intention to waive further proceedings. The resolution referred to, and which was passed on the day fixed for the sale of the delinquent stock, reads as follows: "Resolved, that the president and secretary are hereby ordered to commence suit immediately to enforce the collection of assessment No. 5 on the following delinquent stock in the San Gabriel Valley Land & Water Company." Here follows a description of the stock and name of owner. This resolution, we think, is a sufficient indication of the intention of the corporation to waive further proceedings under the chapter for the collection of delinquent assessments, and The to proceed only thereafter by action. court erred in granting the nonsuit, and the motion for a new trial ought to have been granted. Judgment and order reversed, and cause remanded for a new trial. (99 Cal. 649) BEDAN v. TURNEY. (No. 19,159.) (Supreme Court of California. Oct. 9, 1893.) APPEAL BILL OF EXCEPTIONS-CRIMINAL CONVERSATION-WHEN ACTION LIES. 1. Under Code Civil Proc. § 950, providing that any statement used on motion for new trial, or any bill of exceptions settled, may be used on appeal from a final judgment, the fact that a bill of exceptions on appeal is entitled a bill of exceptions on motion for new trial is immaterial. 2. Under Code Civil Proc. $ 650, providing that the judge in settling a bill of exceptions shall strike out all superfluous matter, it will be presumed that all matter relevant to rulings complained of has been inserted in the bill. 3. In order to sustain an action for criminal conversation it is not necessary that the intercourse should have been accomplished by force. 4. It is immaterial, in such an action, if the defendant had had criminal intercourse with plaintiff's wife, whether plaintiff was impotent, or whether the child borne by her was begotten by defendant or her husband. Department 1. Appeal from superior court, Los Angeles county; J. W. McKinley, Judge. Action by Martin Bedan against Elbert Turney for criminal conversation. Judgment for defendant. Plaintiff appeals. Reversed. Louis Luckel, for appellant. Henry T. Gage, for respondent. HARRISON, J. Action of crim. con. Judgment was rendered in favor of the defendant, and the plaintiff has appealed, assigning certain errors of the court in its instructions to the jury. The respondent makes a preliminary objection to the consideration of these errors upon the ground that the appeal is taken from the judgment alone, whereas the rulings are only found in a "bill of exceptions on motion for a new trial." Section 950, Code Civil Proc., however, provides that "on an appeal from a final judgment the appellant must furnish the court with a copy of the judgment roll, and of any bill of exceptions or statement in the case upon which the appellant relies. Any statement used on motion for a new trial, or any bill of exceptions settled, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing the new trial." The fact that the bill of exceptions in the present case is entitled a bill of exceptions on motion for a new trial, is immaterial. It is also urged by the respondent that, inasmuch as the bill of exceptions does not purport to contain all the evidence before the court below, the instructions given by the court cannot be regarded as prejudicial, unless they were erroneous in every conceivable view, and that for the purpose of sustaining the judgment in the present case it may be assumed that there was evidence to the effect that plaintiff connived at the crimInal conversation of the defendant with his wife. The purpose of a bill of exceptions is to preserve a record of the rulings or deci sions of the court, and by section 650, Code Civil Proc., the party desiring to have nis exceptions settled is to prepare a draft of a bill, which shall contain all the exceptions upon which he relies, and to this draft the opposite party may propose amendments. The bill does not become effective until it it settled by the judge, and by the same section he is directed "to strike out of it all redundant and useless matter, so that the exceptions may be presented as briefly as possible." If in such proposed draft there is inserted a ruling of the court deemed by the party preparing the same to be erroneous, it is the duty of the opposite party to present in his amendments any matters which would obviate the apparent error; and it must be assumed that the judge, in settling the bill, has caused to be inserted therein all matter which is relevant to his ruling, or will explain the same. Hyde v. Boyle, 89 Cal. 590, 26 Pac. Rep. 1092. This bill of exceptions forms a part of the judgment roll and of the court's record of its own acts, and for the purpose of determining whether this record contains any error only the record itself can be examined. When an appeal from a judgment is heard upon the Judgment roll alone, nothing can be assumed or considered that does not appear upon the face of that roll. If that discloses error, we can no more assume that it was cured by some matter which does not appear therein than we can consider matters outside of the roll for the purpose of impeaching the cor rectness of the judgment. In each case the record must be judged by itself alone. The plaintiff requested the court to give to the jury the following instruction: "The jury are instructed that if they believe from the evidence that the defendant debauched Franzisca Bedan, the wife of plaintiff, and had carnal intercourse with her without the consent of the plaintiff, then they are to determine the amount of damages done the plaintiff, not exceeding the sum asked for." The court refused to give this instruction. but at the request of the defendant instructed the jury as follows: "The court instructs you that, in order for plaintiff to recover in this case, it is necessary for plaintiff to establish by a preponderance of evidence that the defendant had intercourse with the witness Franzisca Bedan by means of vio lence, or against her will, or without her consent. The mere fact of intercourse with her would not be sufficient to entitle the plaintiff to recover; and there is no evidence in this case, as far as the use of artifice or persuasion or anything of that kind is concerned, in the way of seduction. And that the degree of violence necessary to entitle plaintiff to recover is such as would overcome her resistance." The court appears to have proceeded upon the theory that in an action of this character the plaintiff cannot recover, unless it is shown that the sexual intercourse between the defendant and the |