termination of any subsequent appeal. See Wixson v. Devine, 80 Cal. 385, 22 Pac. Rep. 224. The record, as presented upon this appeal, contains findings of certain facts which were not made at the former trial, and which, of course, could not have been considered by this court on the former appeal. In addition to finding that the contract was not fully or substantially performed by Hartman, the court also finds that, while he did render some services in the surveyor general's office in this state, yet after the case was sent to Washington, in the early part of the year 1871, "no further services were performed by the said Hartman, nor did he appear in the said proceeding before the commissioner of the land office or secretary of the interior, but the case was wholly abandoned by him;" and also that the employment of Denver by Olvera was after the abandonment of the case by Hartman, and that the patent was procured to be issued by Denver. The evidence before the court was ample to sustain findings, and as probative of these facts they are controlling in suppert of the ultimate fact found upon the issue of performance. It follows that the judgment and order must be affirmed, and it is so ordered. LOS ANGELES FARMING & MILLING A judicial decree, followed by possession under a bona fide claim, is color of title, within the meaning of Act Cong. Feb. 25, 1885, prohibiting inclosures of public lands unless under "claim or color of title made or acquired in good faith," and, such possession having lasted for 25 years, the holder can mainfain ejectment against persons assuming to enter on the premises as being "public lands of the United States." Cameron v. U. S., 13 Sup. Ct. Rep. 595, 148 U. S. 301, followed. In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Ejectment by the Los Angeles Farming & Milling Company against Hoff and others. Judgment for plaintiff. Defendants appeal. Affirmed. J. M. Dameron, for appellants. Graves, O'Melveny & Shankland and Stephen M. White, for respondent. PER CURIAM. This is an action of ejectment brought against the defendant Hoff and over 100 others, to recover possession of the south half of the San Fernando rancho in Los Angeles county. Upon the facts shown at the trial we think there can be no question as to the right of the plaintiff to recover in this action, and the question of error in the instructions becomes immaterial. The supreme court of the United States, in a recent decision, has construed the act of congress of February 25, 1885, and in effect answered every proposition upon which the appellants rely herein. Cameron v. U. S., 148 U. S. 301, 13 Sup. Ct. Rep. 395. The plaintiff has been in the possession, under sanction of a judicial decree, for about 25 years. Its claim has been made in good faith and under color of title, while the defendants are mere naked trespassers. The case comes squarely, therefore, within the decision above referred to, and requires no further consideration. See, also, U. S. v. Brandestein, 32 Fed. Rep. 740, and Rourke v. McNally, (Cal.) 33 Pac. Rep. 62. We find no error in the record. Judgment and order affirmed. (4 Cal. Unrep. 295) Ex parte CARROLL. (No. 21,048.) (Supreme Court of California. Oct. 12, 1893.) CONTEMPT-COMMITTING Officer of COURT-VALIDITY OF JUDGMENT. A commitment for contempt of court, in disobeying an order requiring the person committed to restore to the administrator of an estate in process of settlement money which he had obtained, as attorney for such administrator, by false pretenses, is void, where the judgment on which the commitment issued fails to show that he was in fact such attorney. In chambers. Petition in habeas corpus by John S. Carroll for the release of John F. Burris from custody on a commitment for contempt. Petition granted. John S. Carroll, in pro. per. BEATTY, C. J. This is a proceeding upon habeas corpus instituted by the petitioner, Carroll, on behalf of John F. Burris, who is alleged to be unlawfully restrained of his liberty. The return to the writ consists of nothing more than the commitment under which the prisoner is held, which recites certain proceedings on attachment for an alleged contempt of court. These recitals show that Burris obtained from the administratrix of an estate in progress of settlement in the superior court the sum of $108 by false pretenses; that he was ordered by the court to restore the money, and, failing to do so, was committed to the custody of the sheriff, to be confined in jail until he obeyed the order. The authority of the court to make such an order is rested upon the suggestion that Burris was attorney for the administratrix, and obtained the money from her by abuse of his privileges as an officer of court. It may be that a court has the power to make such an order, and enforce it against an attorney by process of contempt, but there is nothing in the return to show that Burris was an attorney for the administratrix at the time he obtained the money in question, and therefore the order appears to be void. Leave has been asked, since the hearing and submission of the case, to amend the return by showing that the complaint in the contempt proceeding alleged that Burris was attorney for the administratrix. But, even if it were proper to allow such amendment at this time, it would not cure the defect, for the judgment of the courtcopied in the commitment-nowhere finds that Burris was such attorney. It speaks of him merely as one John F. Burris, i. e. as an entire stranger to the probate proceedings, and as much beyond the jurisdiction of the superior court in attachment for contempt as any other stranger. In contempt cases the facts necessary to confer jurisdiction should not only be alleged, but found, and here they are not found in any form, specific or general. The prisoner is discharged. * * 1. Act March 5, 1870, (St. 1869-70, p. 159.) § 9, relating to sheriff's fees, provides that the sheriff is entitled to receive, "for every mile necessarily traveled in going only in executing any warrant of arrest, or for mileage in any criminal case or proceeding, *thirty cents." St. 1887, p. 207, $211, provides that the fees provided in the act shall be in full compensation, "provided further, that the board of supervisors shall allow to the sheriff his necessary expenses for pursuing criminals or transacting any criminal business without the boundaries of his county." Held, that the sheriff was not entitled to mileage while unsuccessfully hunting for escaped prisoners for whose arrest he had warrants. Broughton v. County of Santa Barbara, 3 Pac. Rep. 877, 65 Cal. 257, followed. 2. Where a sheriff arrests two or more persons at the same time he is not entitled to one mileage at such statutory rate for each person arrested. Department 1. Appeal from superior court, Tulare county; Wheaton A. Gray, Judge. Action by D. G. Overall against Tulare county to recover for certain fees claimed to be due him as sheriff of such county. From a judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals. Reversed. Bradley & Farnsworth, for appellant. Chas. G. Lamberson and W. W. Middlecoff, for respondent. PER CUKIAM. The plaintiff was sheriff of Tulare county from January 7, 1889, until January 5, 1891. During that time no salary was attached to his office, but he was entitled to charge and receive for official services such fees as were allowed by law. On November 29, 1890, he presented to the board of supervisors for allowance a claim against the county for $770.40. Of this claim $284.70 was for "miles traveled hunting for" one McFarlane, and $485.30 for "miles traveled in hunting for" one McKinney, both of whom had been charged with the commission of crime. On January 12, 1891, the board allowed and ordered paid $201 on this claim. On January 30, 1891, plaintiff presented to the board of supervisors for allowance another claim against the county for $690.50. This claim was for services in traveling to places away from the county seat, and arresting and bringing before justices of the peace a large number of alleged criminal offenders. On March 5, 1891, the board allowed and ordered paid $461.50 on this claim. Plaintiff was not satisfied with the amounts so allowed, and refused to accept the same, and thereupon he commenced this action to recover the full amount of his two claims, setting out a separate cause of action upon each claim. Attached to the complaint are copies of the claims presented to the board, duly itemized, and marked respectively "Exhibit A" and "Exhibit B." The gist of the first cause of action is stated in the complaint as follows: "That between the 26th day of November, 1889, and the 1st day of February, 1890, the plaintiff, as such sheriff, necessarily traveled 2,568 miles within said state in executing warrants in criminal cases; and that thereby said defendant became, and still is, justly indebted to plaintiff in the sum of $770.40, no part of which has been paid." And the gist of the second cause of action is thus stated: "That between the 10th day of November, 1890, and the 5th day of January, 1891, defendant became, and still is, justly indebted to plaintiff for services performed as such sheriff, for mileage necessarily traveled, and for serving subpoenas and warrants in criminal cases to the amount of $689.50, no part of which has been paid." The answer denied all the material averments of the complaint, and upon the issues thus raised the case was tried by the court without a jury. The court found that the plaintiff was entitled to recover the full amount claimed, less the sum of $27.60, which had been twice charged in "Exhibit B." Judgment was accordingly entered in favor of the plaintiff for the sum of $1,432.30 and costs of suit. From this judgment, and an order denying its motion for a new trial, the defendant appeals. The law fixing the traveling fees of the sheriff of Tulare county during the time plaintiff held that office, is found in section 9 of the act of March 5, 1870, (St. 1869-70, p. 159, and see St. 1877-78, p. 559.) The provision is as follows: "For every mile necessarily traveled in going only, in executing any warrant of arrest, subpoena, or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate or to prison, or for mileage in any criminal case or proceeding; provided, that in serving a subpoena or venire, when two or more jurors or witnesses live in the same direction, but one mileage shall be charged, thirty provided further, that the board of supervisors shall allow to the sheriff his necessary expenses for pursuing criminals or transacting any criminal business without the boundaries of his county." St. 1887, p. 207, § 211. In support of the first cause of action it was shown that McFarlane and McKinney were in the county jail, and escaped therefrom during the night of November 25 or 26, 1889. On the morning of the 27th plaintiff started out hunting for them, having warrants for their arrest, and continued such hunting until December 14th. While so engaged he traveled 940 miles, most of which traveling was outside of his county. After December 14th plaintiff discontinued his hunting until January 9, 1890, when he started out again in quest of McKinney, and arrested him in Rawlins, Wyo. In going and returning on this last trip he traveled 670 miles within this state. Subsequently, in December, 1890, plaintiff started out again after McFarlane, and found and arrested him in the town of San Marcial in New Mexico. For this last service he afterwards presented another claim against the county, and it was allowed and paid in full. The 949 miles and 670 miles traveled as before stated, the first number, however, being duplicated, because the hunting was for two alleged criminals at the same time, constitute the plaintiff's claim as set forth in his "Exhibit A;" and the only question is, was he entitled to a larger allowance on it than was made by the beard of supervisors? Plaintiff testified: "During the time I did this traveling, hunting for McKinney from and including November 27, 1889, to December 14, 1889, I did not arrest McKinney or have him in my custody. These places where I traveled in hunting were several hundred miles from where I finally arrested McKinney. Between the 14th day of December, 1889, and January 9, 1890, I did not do any traveling in hunting for McKinney. It was nearly a month after I did this traveling in hunting for McKinney before I arrested him; nearly a month before I started out again to hunt him. * I arrested McFarlane some time in December, 1890. I arrested him several hundred miles from the place where I did the hunting for him as set forth in my complaint in Exhibit A.'* * I arrested both McFarlane and Mckinney in opposite directions from the places where I traveled in hunting for them as set forth in my claim marked 'Exhibit A' not exactly opposite, but in a different direction. The arrest of McFarlane by me was made nearly a year after the time I traveled hunting for him, as set out in my claim marked 'Exhibit A.'" It will be observed that the plaintiff was allowed by the supervisors all that he was entitled to claim under the statute for the 670 miles traveled in making the arrest of McKinney, and also all that he claimed for making the arrest of McFarlane, and that only his claim for the miles traveled which did not result in any arrest was disallowed. In Broughton v. County of Santa Barbara, 65 Cal. 257, 3 Pac. Rep. 877, the sheriff of that county sought to recover, under section 9 of the statute of 1869-70, above quoted, a certain sum of money as "mileage" for traveling to serve a warrant of arrest on one charged with felony; and it was held that the statute did not allow mileage for traveling in different directions in looking for one charged with a crime who is not arrested. That case we consider directly in point, and decisive of the first cause of action in this. It is true that McFarlane and McKinney were subsequently found and arrested, but that fact, under the circumstances shown, does not materially distinguish this case from that. It follows that the plaintiff was not entitled to recover for the miles traveled in his unsuccessful hunt, though possibly he might have rightly claimed pay for his necessary expenses. That question, however, does not arise here, as no such claim was presented for allowance. In support of the second cause of action it was shown that between November 10, 18S9, and January 5, 1890, a deputy of the plaintiff went several times to Goshen and Tulare, and arrested at the former place 18 and at the latter 49 different persons. The arrests were all made without any warrants, and it was admitted "that the plaintiff went to Goshen without any knowledge of any crime having been committed by any of the defendants in any of the said cases, and that while at Goshen he arrested each of said defendants, and took each of said defendants to Visalia, where he swore to a complaint before the justice against each of said defendants, upon which a warrant was issued in each of said cases, which warrant was thereupon at said Visalia served by plaintiff upon each of said defendants." And there was a like admission as to the arrests made at Tulare. It was further admitted that each of the defendants named in the admissions was charged with a misdemeanor. The deputy testified: "Some of these parties were arrested for vagrancy, some for malicious mischief, and I think there were two or three for disturbing the peace. ** At the time I arrested any of the defendants at Goshen I did not have any knowledge or notice that any particular defendant had committed any offense before I started from Visalia. In each and all of these cases the crime was committed at Goshen, after I arrived there, and was done in my presence while there. I also state that each and all the defendants whom I arrested at Tulare were arrested by me for a crime committed in my presence at Tulare. I had no notice or knowledge of any of these de fendants committing a crime before I started to Tulare." The distance from Visalia to Goshen was eight miles, and to Tulare twelve miles. In making up his claim, as shown by "Exhibit B," plaintiff charged, and now insists that he is entitled to recover, mileage at the rate of 30 cents per mile from Visalia to the place of arrest, for each of the 18 and 49 persons arrested; and whether he was entitled to such mileage or not is the only question which need be considered, the allowance made by the board of supervisors being sufficient to cover all the balance of his claim. As before stated, the plaintiff was entitled to such fees only as were allowed by law. No statute or rule of law is cited authorizing such a charge as that in question, and we know of none. It seems clear, therefore, that this claim for mileage was properly disallowed by the supervisors, and improperly allowed by the court below. It follows that the judgment and order must be reversed, and the cause remanded. So ordered. (100 Cal. 78) In re PINGREE'S ESTATE. (No. 18,186.) (Supreme Court of California. Oct. 13, 1893.) PUBLIC ADMINISTRATOR-RIGHT TO LETTERS. A public administrator does not, by filing his petition for administration on an estate before the ending of his term of office, become entitled to administer thereon as against the incumbent of the office at the time of the grant of administration. Commissioners' decision. Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge. In the matter of the estate of W. C. Pingree, deceased. From an order refusing letters of administration to J. Phelps, and granting them to J. D. Bentley, the former appeals. Affirmed. L. J. Maddux, for appellant. Eastin & Griffin, for respondent. BELCHER, C. On the 30th day of DeIcember, 1892, W. C. Pingree died intestate in the county of Stanislaus, in this state. He was a resident of the county at the time of his death, and left an estate therein, consisting of real and personal property, of the value of more than $15,000. He had no relatives or heirs at law residing in this state. On December 31st, the next day after the death of Pingree, J. Phelps, then the public administrator of the county, filed in the superior court thereof his petition in proper form, asking that letters of adminstration on the estate of the deceased be issued to him. On January 2, 1893, J. D. Bentley became the public administrator of the county, and on the next day (January 3d) he, as such officer, filed in the superior court his petition in proper form, asking that letters of administration on the estate of the said deceased be issued to him. Due notices of the petitions were given, and they were both set for hearing at the same time, on January 14, 1893. At the time set for the hearing, Phelps was sworn as a witness, and among other things testified: "I filed my petition for letters of administration on the 31st day of December, 1892, before I had ever seen the deceased, before his burial, and before I had held the inquest on his remains. I had not at that time ever seen any of his property or taken charge of it. I had made no search for his will, except to talk with some one at Knight's Ferry through the telephone. I did not then know anything about his property. I have not taken charge of the property under an order of court, and have not had charge of it since the special letters of administration were issued to J. D. Bentley. I wrote to Mr. Means to take charge of the property, but I don't know whether he did or not. I have never been in charge of it personally. I have not been public administrator since the 3d day of January, 1893, and am not now." Other witnesses were also sworn and examined in behalf of both petitioners, and at the conclusion of the evidence the court made an order denying the petition of Phelps, and granting that of Bentley. From this order Phelps appeals, and his contention is that inasmuch as Pingree died, and he filed his petition, during his term of office, he became interested in the estate to the extent of his commissions, and was therefore entitled to administer upon it and recover the commissions, notwithstanding his term of office expired before his petition was heard; and, in support of this position, Rogers v. Hoberlein, 11 Cal. 120, and In re Aveline's Estate, 53 Cal. 260, are cited. The Code names 10 classes of persons who may be appointed to administer on estates, and among them are public administrators. Section 1365, Code Civil Proc. It provides that petitions for letters of administration must be in writing, etc., (section 1371,) and that any person interested may contest the petition, and may assert his own rights to the administration, and pray that letters be issued to himself, (section 1374;) and also that on the hearing the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto, (section 1375.) A public administrator, like any other person, can administer on an estate only when there has been made to him a special judicial grant of administration thereon. He does not, by virtue of his office, acquire the right to administer upon any particular estate. Beckett v. Selover, 7 Cal. 216; In re Hamilton's Estate, 34 Cal. 464. The cases cited by appellant are only to the effect that where letters of administration have been granted to a public administrator he may continue his administration of the estate after the expiration of his term of office, and until his authority is set aside or revoked by another appointment. Those cases are not in point here. The appellant did not, by virtue of his office or by filing his petition, acquire any interest in the estate of Pingree, or in the commissions to be earned by administering upon it; and when his term of office expired he ceased to be one of the persons specially named to whom letters might be granted. It was his status at the time of the grant of administration, and not at the time of filing his petition, that determined his competency. The court did not, therefore, err in ordering that letters of administration on the estate be issued to Bentley as "the party best entitled thereto." The order appealed from should be affirmed. PEOPLE v. VOLCANO CANYON TOLLROAD CO. (No. 18,118.) (Supreme Court of California. Oct. 13, 1893.) QUO WARRANTO RESTRAINING COLLECTION OF TURNPIKE TOLLS-PLEADING EVIDENCE. 1. In an action in the nature of a quo warranto, brought by the attorney general, to have a certain road declared a highway, and to enjoin defendant from collecting tolls thereon, defendant's claim and exercise of the franchise being admitted, the burden is on defendant to show by what warrant or authority such claim is made. 2. An averment in the complaint in such action, that "for more than six months last past defendant has had no franchise or right to demand or take toll," is not an admission of the existence of such franchise or right previous to that period. Commissioners' decision. Department 2. Appeal from superior court, Placer county; W. H. Grant, Judge. Information in the nature of a quo warranto against the Volcano Canyon Toll-Road Company. From an order denying a new trial, defendant appeals. Affirmed. Clitus Barber and John M. Fulweiler, for appellant. F. P. Tuttle and A. K. Robinson, for the People. TEMPLE, C. This action was brought to have a certain road in Placer county declared a public highway, and to enjoin defendant from collecting tolls thereon. Plaintiff had judgment, and defendant appeals from an order denying a new trial. It is averred in the complaint that defendant claims and is exercising the franchise of collecting tolls for the privilege of traveling upon and passing over the road, and is maintaining tollgates, thereby obstructing the road, and preventing its use and enjoyment by the public, except upon condition of paying toll to the defendant; further, "that, for more than six months last past, defendant has had no franchise or right to demand or take toll from passengers or travelers upon said road for the privilege of passing over or along the same with their animals, or at all, or to establish or maintain any tollgate or other gate or obstruction thereon," etc. The answer admits, by not denying, that the defendant claims and is exercising the disputed franchise, but denies that it is doing so without right, and avers that the board of supervisors of the county granted defendant a franchise to collect tolls upon the road, which has not expired. This being an information in the nature of a quo warranto brought by the attorney general, and the fact that the defendant claimed and was exercising the disputed franchise being admitted, the burden was on the defendant to show by what warrant or authority it claimed and exercised the franchise. There was no attempt to show any warrant or authority whatever. The judgment, therefore, was proper. The statement shows that but one witness was sworn, and that was one Bunker, who testified for the defendant. He testified that the road belonged to his wife, who took it as legatee under the will of witness' brother, and since they had owned it they had built a bridge, and repaired the road. That toll had always been charged for traveling the road. He also said they had never claimed to be incorporated, and that the name used as defendant was simply the name of the road, and was convenient for that purpose. Yet we are referred in the brief of appellant to a case in which this same name figured as a plaintiff in a case to compel the board of supervisors to fix the rate of tolls, which case was appealed to this court. Volcano Canyon Road Co. v. Board of Sup'rs of Placer Co., 88 Cal. 634, 26 Pac. Rep. 513. In that case It was said that the board, on that application, could not inquire whether the plaintiff was legally incorporated, or owned the road. It seems a very startling proposition that a person taking a name, apparently of a corporate body, and in his complaint asserting it to be such, can take possession of a public highway which was laid out and built, and is being controlled, by this very board, and compel that body to fix rates of toll, and allow the applicant to appropriate the highway, without the right to question the corporate character, although no such pretended body ever existed, or claimed to exist, save in the petition to have the rates fixed. Weaverville & M. W. R. Co. v. Board of Sup'rs of Trinity Co., 64 Cal. 69, is relied upon as authority for this proposition. But in that case it was proven and found that the plaintiff was an acting corporation, and it was simply held that in that proceeding this was sufficient and conclusive. In this case there are no persons acting under the name. There are no directors or officers, and po acts in corporate form. As to the other proposition, it has been held in numerous cases that the board, when |