if it might seem to have been an improvident agreement. But where it appears that the parties intended the sum named to be a forfeiture or penalty, it has been generally held that the party in whose favor the penalty or forfeiture exists must prove his damage. In the case before us there is no claim of special damage. It might have been quite difficult for the defendant .to show any damage of a pecuniary nature for the non-completion of the monument at the time specified, though its completion might have been of great comfort and consolation to her affectionate remembrance.

Upon the subject of liquidated damages and a penalty, we quote from 1 Suth. Dam. 480, as a clear statement of the result of the various decisions:

"The intention of parties on this subject, under the artificial rules that have been adopted, is determined by very latitudinary construction. To be potential and controlling that a stated sum is liquidated damage, that sum must be fixed as the basis of compensation, and substantially limited to it; for just compensation is recognized as the universal measure of damages not punitory, parties may liquidate the amount by previous agreement. But when a stipulated sum is evidently not based on that principle, the intention to liquidate damages will either be found not to exist, or will be disregarded, and the stated sum treated as a penalty. Contracts are not made to be broken; and hence, when parties provide for consequences of a breach, they proceed with less caution than if that event was certain, and they were fixing a sum actually to be paid. The intention in all such cases is material, but to prevent a stated sum from being treated as a penalty, the intention should be apparent to liquidate damages in the sense of making just compensation; it is not enough that the parties express the intention that the stated sum shall be paid in case of a violation of the contract. A penalty is not converted into liquidated damages by the intention that it be paid; it is intrinsically a different thing, and the intention that it be paid cannot alter its nature. A bond, literally construed, imports an intention that the penalty shall be paid if there be default in the performance of the condition, and formerly that was the legal effect; courts of law now, however, administer the same equity to relieve from penalties in other forms of contract as from those in bonds. The evidence of an intention to measure the damages, therefore, is seldom satisfactory when the amount stated varies materially from a just estimate of the actual loss finally sustained."

For these reasons we are of opinion that the sum named is to be regarded as a penalty, and that the plaintiffs were entitled to recover the whole of the balance unpaid.

Judgment and order affirmed.

(2 Cal. Unrep. 455)

JONES V. DESMOND and others. (No. 8,602.)

Filed March 26, 1885.

FINDINGS NOT SUSTAINED BY THE EVIDENCE.

Where a finding is on a material issue, and there is no evidence to sustain it, the judgment will be reversed and a new trial ordered.

Department 2. Appeal from the superior court of the city and county of San Francisco.

M. Lynch, for appellant.

Clitus Barbour, for respondents.

BY THE COURT. The defendants allege and the court found that in the action of Brooks v. Swineford the plaintiff recovered a judgment for the sum demanded in his complaint. The allegation must be deemed to be denied by the plaintiff in this action; and it is assigned as error that the finding is not justified by the evidence. We are unable to find any evidence of the recovery of a judgment by the plaintiff in the action of Brooks v, Swineford. The finding is upon a material issue, and as there is no evidence to sustain it, there must be a new trial. No other material error is specified.

Judgment and order reversed.

(66 Cal. 541)

STANDLEY V. ST: PH INS. (No. 8,359.)

Filed Ma c 23, 1885.

LANDLORD AND TENANT-ADVERSE POSSESSION BY SUBTENANT.

One entering on land at the instance and with the consent of a tenant thereof, cannot, without first surrendering, acquire the right of possession adverse to the landlord, nor can he question the landlord's title.

Department 2. Appeal from the superior court of the county of Mendocino.

J. A. Cooper, for appellant.

J. T. Rogers, for respondent.

MYRICK, J. The court below found that at the time defendant entered upon the land in controversy (the same being part of a large tract) it was held by one L. R. Standley, under a lease from plaintiff, and that the defendant entered by the consent and inducement of said L. R. Standley, for the purpose of filing and claiming a homestead, but that plaintiff never ratified or acquiesced in the acts of L. R. Standley. The defendant knew that the land had been used by plaintiff as a pasture, and that plaintiff claimed it as being within. what he claimed to be his inclosures. If the premises were held by said L. R. Standley as tenant of plaintiff, the tenant must have entered and acquired the right to hold under the lease; he must have acquired that right from the plaintiff; and, having acquired it, he could not acquire the right of possession, antagonistic to his landlord, without first surrendering. The defendant having entered by the

consent and inducement of the tenant, and with knowledge of the tenancy, acquired no rights which the tenant could not have acquired. Therefore, neither the tenant nor the defendant were in position to question the sufficiency of the inclosures.

There is no error in the ruling of the court as to the cost bill. The judgment and order are reversed, and the cause is remanded for a new trial.

We concur:

(2 Cal. Unrep. 454)

SHARPSTEIN, J.; THORNTON, J.

DOGGETT V. BELLOWS and others. (No. 8,714.)

Filed March 24, 1885.

FORECLOSURE OF MECHANIC'S LIEN-PLEADING.

In an action for the foreclosure of a mechanic's lien, the complaint should aver the amount due under the contract to the contractor from the owner of the building on which the work was done.

Department 2. Appeal from the superior court of the county of Mendocino. Action to foreclose a mechanic's lien by plaintiff, who was a laborer employed by defendant to work on a flume, under a contract by defendant with the Mendocino Flume & Mining Company. E. T. Case, for appellant.

Gillespie & Hamilton, for respondent.

BY THE COURT. Action to foreclose a mechanic's lien. There is no averment in the complaint that any sum was due from the Mendocino Flume & Mining Company, the owner, to Bellows, the contractor; therefore the demurrer of the company to the complaint should have been sustained. Latson v. Nelson, 11 Pac. C. Law J. 589; Whittier v. Hollister, 64 Cal. 283.

The judgment, so far as it concerns the Mendocino Flume & Mining Company, is reversed, and the cause is remanded with directions to sustain the demurrer above referred to.

(2 Cal. Unrep. 455)

REYNOLDS v. SUPERIOR COURT. (No. 9,968.)

Filed March 26, 1885.

DIVORCE-JUDGMENT FOR ATTORNEY'S FEES-PROHIBITION TO RESTRAIN.

The enforcement of a provision in a judgment of divorce requiring defendant to pay counsel fees to plaintiff's attorneys cannot be restrained by, a writ of prohibition, although the judgment was one of dismissal entered by consent of the parties.

Application for a writ of prohibition.

The petitioner's wife sued for a divorce, but pending the action she condoned the husband's offenses and returned to live with him, and by consent of the parties a dismissal of the action was asked for, upon which the court rendered a judgment of dismissal, providing in the judgment, however, on motion of plaintiff's attorney, that defendant

should pay plaintiff's counsel fees, which the defendant, petitioner herein, failed to pay. Thereupon an order of contempt was issued, to prohibit which the application for this writ was made. Langhorn & Miller, for petitioner.

BY THE COURT. Application for writ of prohibition. We see no ground for granting the writ prayed for in this case. The application is therefore denied.

(2 Cal. Unrep. 459)

HOOK V. HALL. (No. 8,507.,

Filed April 1, 1885.

1. NEW TRIAL-TIME FOR FILING NOTICE OF INTENTION TO MOVE for. In jury cases, notice of intention to move for a new trial must be filed and served on the adverse party within 10 days after verdict, and the trial court or judge has no power to extend the time for filing such notice.

2. APPEAL FROM ORDER GRANTING NEW TRIAL-WHAT CONSIDERED ON.

The insufficiency of a complaint cannot be considered on an appeal from an order granting a new trial.

Department 1. Appeal from the superior court of Monterey county. W. S. Dodge and H. V. Morehouse, for appellant.

J. Lee and A. S. Kittredge, for respondent.

BY THE COURT. This is an appeal by plaintiff from an order granting a new trial. The action was tried by jury. Section 659 of the Code of Civil Procedure provides that the party intending to move for a new trial must, within 10 days after verdict, file with the clerk, and serve upon the adverse party, a notice of such intention. In the case before us, the notice of intention was filed more than 10 days after the verdict. It does not affirmatively appear that the court below attempted to extend the time for filing or serving the notice, and when he filed amendments to the proposed statement, on motion for new trial, the plaintiff reserved his objection that notice of intention was not filed within statutory time. But the right to move for a new trial is statutory, and there is no provision of the Code of Civil Procedure which gives to the superior court or to the judge power by order to extend the time for filing a notice of intention to move for a new trial. Section 1054 does not authorize such an order. With respect to ordinary notices the proof of the service is filed with the clerk for preservation, but with respect to notices of intention to move for new trial the statute specifically requires that they must be filed within the 10. days, as a prerequisite to any further proceedings towards obtaining a retrial. The insufficiency of the complaint cannot be considered on appeal from an order granting a new trial.

Order reversed.

OWENS v. HEYDENFELDT. (No. 7,551.)

Filed April 1, 1885.

STREET WORK IN SAN FRANCISCO-ILLEGAL EXTENSION OF TIME.

After the expiration of the contract time for the completion of work on the streets of the city and county of San Francisco, if the contractor fail to complete the same, neither the board of supervisors nor the superintendent of streets have power to grant an extension of time for the completion of such work.

In bank. Appeal from the superior court of the city and county of San Francisco.

Action to recover the amount of a street assessment. The plaintiff contracted to do certain street work in San Francisco, but failed. to complete the same within the contract time. Subsequent to the expiration of the time for completing such work, the superintendent of streets, at the instance of the board of supervisors, extended the time for completing such work. Thereafter the street assessment was levied which is the subject of this action. The trial court rendered judgment for defendant, on the principle that the assessment was invalid because the extension of time granted was neither in the power of the superintendent of streets nor in those of the board of supervisors. Plaintiff appealed.

J. M. Wood and J. C. Bates, for appellant.

D. H. Whittemore, for respondent.

BY THE COURT. On the authority of Turney v. Dougherty, 53 Cal. 619, and Beveridge v. Livingstone, 54 Cal. 54, the judgment is affirmed.

TORRENS v. TOWNSEND. (No. 7,261.)
Filed April 1, 1885.

STREET WORK IN SAN FRANCISCO-ILLEGAL EXTENSION OF TIME.

After the expiration of the contract time for the completion of work on the streets of the city and county of San Francisco, if the contractor fail to complete the same, neither the board of supervisors nor the superintendent of streets have power to grant an extension of time for the completion of such work.

In bank. Appeal from the superior court of the city and county of San Francisco.

Action to recover the amount of a street assessment. The plaintiff contracted to do certain street work in San Francisco, but failed to complete the same within the contract time. Subsequent to the expiration of the time for completing such work, the superintendent of streets, at the instance of the board of supervisors, extended the time. for completing such work. Thereafter the street assessment was levied which is the subject of this action. The trial court rendered judgment for plaintiff, but, after motion and hearing, a new trial was granted, on the principle that the assessment was invalid because