his claim to the board of supervisors of the city and county and demanded payment thereof on the 10th of July, 1882, two years and six months after the commencement of the action. Upon these pleadings the action was again tried and judgment was given for the defendants, and from which the plaintiff appeals.

Where a demand is necessary to fix the liability of sureties to an undertaking, it is parcel of the contract; and it must be made before the commencement of an action for the breach of the undertaking; and in the action itself it must be averred and proved. It cannot be made after the commencement of the action, except as the basis of a new action.

With the exception of the averments of a demand in the supplemental complaint, the pleadings upon which the case was tried are, substantially, what they were on the former appeal, and the questions at issue are the same; the decision then rendered must therefore be accepted as the law of the case.

Judgment affirmed.

MCKINSTRY, J., Ross, J., MYRICK, J., SHARPSTEIN, J., and THORNTON, J., concurred.

No. 7,846.

CITY OF SAN JOSE v. REED ET AL.

Department Two. Filed May 14, 1884.

CONDEMNATION OF LAND-PLEADING EVIDENCE.-In an action to condemn a parcel of land for a public street, when the comp'aint alleges that the defendants are the owners of the land sought to be condemned, the plaintiff cannot give evidence that the defendants had already dedicated such land as a street, for the purpose of affecting the question of damages.

APPEAL from a judgment of the superior court for Santa Clara county, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states the facts.

George F. Baker, for the appellants.

D. W. Herrington, for the respondent.

MYRICK, J. This is an action to condemn a parcel of land to the use of plaintiff as a public street. The complaint contains an averment that said defendants are the only owners or claimants of the premises hereinafter described and sought to be condemned." On the trial the court permitted the plaintiff to give evidence tending to show that the defendant, E. P. Reed, had dedicated the land to the public as a street, as affecting the question of damages or compensation. This was error. No question of dedication was involved in the pleadings for any purpose. If there had been a dedication, and defendants had unlawfully obstructed the street, an action of another character could have been maintained. Either the land had been dedicated and was a public street, or the defendants were the owners. The plaintiff alleged the latter to be the fact. For the purposes of this action then, it must stand on the allegation, and we must regard them as such. The jury gave the defendants a verdict of one dollar

No. 22-4.

for the lands taken. By the testimony the lowest estimate of value was $2,700; the highest $5,400. The verdict was not sustained by the evidence; it was evidently based on the idea of a former dedication.

Judgment and order reversed, and cause remanded for a new trial. THORNTON, J., and SHARPSTEIN, J., concurred.

No. 9,217.

ELLIS v. BENNET ET AL.

Department One. Filed May 14, 1884.

AN APPEAL IS INEFFECTUAL WHEN THE NOTICE THEREOF IS NOT SIGNED by the attorneys of record or by the counsel for the appellant, or when the transcript contains no proof that such notice was served upon the respondents.

MOTION to dismiss an appeal from an order of the superior court of the city and county of San Francisco. The opinion states the facts.

Cobb and Platt for the appellant.

Stanley, Stoney & Hayes, for the respondent.

MCKEE, J. This is an attempted appeal from an order made and entered May 29, 1883, restoring respondents to possession of a tract of land from which they had been dispossessed by the sheriff by the execution of a writ of possession, which had been issued upon a judgment in favor of the plaintiff (who is the appellant) against one Thomas J. Currey, for the recovery of said land, and costs.

In the transcript which has been filed there is a copy of notice of appeal, which is signed by attorneys, who, as appears by recitals in the order appealed from, were not the attorneys of record, or of counsel, for the appellant; and it contains no proof of service of the notice upon the respondents or either of them.

Besides, it contains no copy of an undertaking on appeal; no showing that such an undertaking was filed at any time, or that instead thereof a deposit in money had been made: Secs. 940-41, C. C. P.

Moreover, it contains no bill of exceptions, and no showing what papers were used on the hearing of the order to show cause, upon which the order appealed from was made: Sec. 951, id.

Furthermore, it is not certified by the clerk of the court or the attorneys in the case, as required by section 953, id.

Upon such a record the order appealed from cannot be reviewed. The certificates of the presiding judge and clerk, made after the service and filing of notice of motion to dismiss the appeal, did not supply the defects in the transcript. The appeal in itself was ineffectual because of the defective notice of appeal, and because the transcript contains no proof of its service. The motion to dismiss

must be sustained.

Appeal dismissed.

Ross, J. and MCKINSTRY, J., concurred.

No. 7,838.

WETMORE V PEOPLE.

Department One. Filed May 14, 1884.

ACTION FOR CLAIM AND DELIVERY JUDGMENT. Under the code, a defendant who recovers judgment in an action for the claim and delivery of personal property where the same has been delivered to the plaintiff, is entitled to a judgment for a return of the property; and if all the property cannot be returned, then to a judgment for the value of the whole. In such action, the wrong-doer cannot acquire the privilege of restoring to the owner a particular article of the property wrongfully detained, or of paying instead its value as found by the jury, nor can he complain that the alternative judgment is for less than the value of the property.

A FINDING THAT AN ACTION WAS COMMENCED AND THAT JUDGMENT therein was "duly given and made,” includes a finding of facts necessary to give the court jurisdiction.

APPEAL from a judgment of the superior court for Sonoma county, entered in favor of the defendant. The opinion states the facts. Porter & Rutledge and Frame, for the appellant.

George A. Johnson, for the respondent.

THE COURT. 1. The court below found there was not an immediate delivery and actual and continued change of possession to and in plaintiff of the goods demanded in this action, and this is not contradicted by the other findings.

2. Appellant contends the judgment should be reversed, because neither it nor any finding determines the value of each article sued for separately. In support of this contention appellant cites Wallace v. Hilliard, 7 Wise, 627; Farmers' Loan v. Commercial Bank, 15 id., 425; Whitfield v. Whitfield, 40 Miss., 369; and Hoeser v. Kraeka, 29 Texas, 455. The first of these cases only decides that the verdict should find the value of the property sued for, and the second that defendant may waive a return of the property and take a judgment for its value alone. In California it has been held that defendant may waive his right to the alternative judgment for value, and may rely on his judgment for the return of the property: Waldman v. Broder, 10 Cal., 379. Whitfield v. Whitfield, cited from the Mississippi reports, decided that a judgment in favor of a plaintiff, which did not follow a verdict, specifying the value of each article, but which required the defendant to deliver all the articles of property, or pay their aggregate value, was erroneous. Hoeser v. Kraeka -the Texas case-seems to uphold the view of the appellant. There the court held erroneous a verdict which did not find a separate value of each article recovered, saying: "The defendant should have the privilege of returning any one or more of the articles recovered, instead of paying its value, and vice versa; but this would be denied him unless the separate value of each article were found." We do not agree that the wrong-doer, may, through his wrongdoing, acquire a privilege of restoring to its owner a particular article, or paying instead its value, as found by a jury. Under our code the judgment is primarily for the return of all the property wrongfully taken or withheld, and the judgment for its value comes into operation only "in case a return cannot be had" C. C. P., 667

So by section 627, the jury are to find the value of any specific portion of the property only, "if so instructed." Error can therefore only arise in a case where such instruction would be pertinent and proper, and the instruction was asked and refused. In De Thomas v. Witherby 61 Cal. 92, this court held that where a plaintiff replevied goods from a defendant, and a judgment was rendered against him for a return of the property or its value, the plaintiff could not be excused from satisfying the judgment upon a plea that the property had been lost in his hands, even by act of God. In De Thomas v. Witherby, the language of the superior court of New York, in Suydam v. Jenkins, Sandf. 614, is cited with approval. "The undertaking of the plaintiff in the replevin bond, we conceive is absolute to return the goods, or pay their value at the time of the execution of the bonds. We do not think that a wrongdoer is ever to be treated as a mere bailee, and that the property in his possession is to any extent at the risk of the owner. It cannot be doubted that a plaintiff, who without right has seized the property of a defendant under a writ, is a wrong doer.

Under our code the defendant who recovers a judgment in an action like the present, where the property has been delivered to the plaintiff, is entitled to a judgment for a return of the property, and if the property-all of it-cannot be returned, then to a judgment for the value of the whole.

In the case at bar, the court found the value of the property to be $400, but ordered an alternative judgment for $155 45-100. Appellant cannot complain that the judgment was for less than the value of the property.

3. The answer alleges that defendant was a constable, and that in the action Glenn v. Ward, in the justice's court, an attachment issued upon an affidavit and undertaking the contents whereof, showing conformity to the code, are set forth-and that defendant as constable under the attachment levied on the property, it being in the possession of Ward. That in the action Glenn v. Ward a judgment was afterwards duly given, upon which execution issued to defendant, who levied the same on the attached property, etc. The findings are as full as the pleading, the finding with respect to the judgment being that it was duly given anl made." The facts constituted a defense for the constable: Thornburg v. Hand, 7 Cal 554. It is urged that there is no finding there was anything due from Ward to Glenn at the commencement of the attachment suit. But there is a statement in the answer that the suit was commenced on "an obligation incurred in Santa Rosa, said county," and if this was an imperfect averment of indebtedness, plaintiff did not demur generally or specifically. The court found: "All the other issues than those herein before specifically mentioned are found in favor of defendant."

4. It is said by appellant that the judgment in the attachment suit is void, because Ward was not served with summons. This must mean that it does not affirmatively appear he was served in

the finding herein. But the finding is that the action was commenced in the justices court, etc., judgment "duly given and made." This includes a finding of the facts necessary to give the court jurisdiction. Judgment affirmed.

No. 10,859.

PEOPLE V. BIGGINS.

Department One. Filed May 15, 1884.

FILING INFORMATION-CONFESSION OF DEMURRER. After a plea of not guilty has been entered in a prosecution for murder, upon which the case is set for trial, the court may set aside an order overruling a demurrer to the information, and allow the counsel for the people to confess the demurrer and to file a new information; and an order entered allowing such confession of the demurrer, and directing a new information to be filed, is equivalent to an order allowing the demurrer.

AN INFORMATION WHICH SUBSTANTIALLY complies with the provisions of the penal code, is sufficient on demurrer.

INVOLUNTARY MANSLAUGHTER. The testimony of the defendant showed that he knocked down the deceased for assaulting him while the latter was drunk. That after so doing, and while the deceased lay prone and helpless, he jumped with both feet upon his face, and that death ensued from such act. Held, that such killing was felonious, that it had none of the elements of involuntary manslaughter, and that the court could so instruct the jury.

INSTRUCTIONS Given at the REQUEST OF A PARTY cannot be afterwards complained of by

him.

INSTRUCTIONS TO A JURY SHOULD BE GIVEN WITH REFERENCE TO THE IMMINENT FACTS in a case. If the facts are controverted, the instructions upon them should be hypothetical. If uncontroverted, the court may assume them.

WHEN THE CHARGE AS A WHOLE STATES THE LAW CORRECTLY, the verdict will not be disturbed, although some part of the charge, standing alone, may contain some inaccuracy of expression which would be subject to criticism.

APPEAL from a judgment of the superior court of Fresno county, entered upon a verdict convicting the defendant of murder of the second degree, and from an order denying him a new trial. The opinion states the facts.

W. D. Tupper, for the appellant.

Attorney General, for the respondent.

MCKEE, J. On August 28, 1882, an information was filed in the superior court of Fresno county against Patrick Biggins, charging him with having committed the crime of murder. Upon de murrer it was held to be defective, and, by direction of the court, a new information was filed, to which a demurrer was interposed which was overruled, and the defendant then entered a plea of not guilty. But upon the day fixed for trial counsel for the people moved the court to set aside the order overruling the demurrer to the information, and to allow him to confess the same. The court granted the motion and entered an order setting aside the overruling of the demurrer, and, thereupon, as was recited in the order, counsel for the people confessed the demurrer and the court directed another information to be filed.

Upon the filing of the third information the defendant, after a demurrer to it had been overruled, entered two pleas, one not guilty