the law," says chief-justice Sharkey, "is rightly vigilant in guarding and preserving the purity of jury trials, yet it will not for light or trivial causes, impugn the integrity of juries, or question the solemnity and impartiality of verdicts:" Hare v. The State, 4 How., 369. It is the settled rule that, to warrant the setting aside of a verdict and granting of a new trial, upon the ground of irregularities and misconduct of a jury, it must be either shown as a fact, or presumed as a conclusion of law, that injury resulted from such misconduct. When it is clear that the party against whom the verdict has been found was not injured by the misconduct the verdict will not be disturbed.

There is nothing in The People v. Gray, 61 Cal., 164, which conflicts with this conclusion. In that case, the jury had, during the trial, drank freely if not grossly of liquors procured by themselves. Upon the submission of the case to them for their deliberation some of them took bottles of whiskey with them into the jury room, and there was evidence tending to show that one of them, while deliberating on the verdict, drank so much as to unfit him for the proper discharge of duty. There is no doubt that the actual drunkenness of a juror will always vitiate a verdict. But here there is no showing that any juror was under the influence of liquor while on duty, or that any liquor was drank at any time while on duty; and there is nothing in the acts charged from which the court could reasonably infer that they, in the slightest degree, influenced the result.

There is no basis for the charge that the sheriff improperly spoke to one of the jurors about the evidence in the case.

The alleged newly discovered evidence of a fact known at the trial as to a matter about which one of the witnesses testified, is no ground for a new trial. No diligence is shown for not using the fact as evidence. Besides, it merely tended to impeach the evidence of the witness on a former trial; and a new trial is not grantable for merely impeaching evidence.

There was no objection taken to the alleged transgression of the district attorney in the argument of the case. The court itself interposed to stop it, and the attorney desisted.

There was no error in the charge of the court.
Judgment and order affirmed.

MCKINSTRY, J., and Ross, J. We concur in the judgment, and in the conclusions reached in the foregoing opinion.

No. 8,334.

BANGS v. DUNN, AUDITOR, ETC., ET AL.

Department One. Filed October 31, 1884.

ASSIGNMENT OF OFFICIAL'S SALARY BEFORE IT BECOMES DUE. The assignment by a public official of his salary before it becomes due, is contrary to public policy and void. THE SAME DEMAND FOR SALARY-ESTOPPEL OF OFFICER.--A deputy of a public officer, who delivers to his superior a demand upon the treasury for his salary, before the same is due, and endorses thereon the words "received payment," subscribing the same with his name, is not estopped from disputing the authority of such superior officer to make an assignment of such demand, if the same is made before the salary becomes due.

ERRONEOUS ORDER CONSOLIDATING ACTIONS, WHEN NO GROUNDS FOR REVERSAL.-An erroneous order consolidating certain actions is not ground for reversal, if it appears from the findings that the appellant is not entitled to a judgment.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendant. The opinion states the fact.

Sidney V. Smith & Son, for the appellant.

Clitus Barbour, Cobb & Moore, Clarence Cook and J. V. Coffey, for the respondents.

MCKINSTRY, J. The respondents have not appeared nor filed any points in this court.

1. Appellant contends that the English rule, which holds that an assignment by an official of his salary before it becomes due is contrary to public policy and void, has no application in the condition of things in this country. It was It was so held in State Bank v. Hastings, 15 Wisc., 78. On the other hand, it was decided by the court of appeals of New York that such an assignment was against public policy and void: Bliss v. Lawrence, 58 N. Y., 442. We think the conclusion of the New York court is sustained by the more satisfactory reasoning.

2. Each of certain deputies and copyists in the office of the clerk of the city and county of San Francisco (in the early part of the month of July, 1881, or before the commencement of that month), delivered to the clerk a writing purporting to be a demand upon the treasury of said city for his compensation or salary as for said July, and having endorsed thereon the words "received payment," subscribed with the name of such deputy or copyist. The writing was immediately, and before the salary was due, delivered by the clerk to the petitioner for a valuable consideration.

It it contended by appellant that the defendant, Dunn, the Auditor, is estopped from setting up a want of authority on the part of the said clerk (Stuart). That if Stuart committed a fraud upon his deputies and copyists by negotiating or assigning the demands, it was a fraud which they gave him the power and helped him to commit, and they should suffer who conferred on the clerk the ostensible authority to deal with the demands. But the plaintiff received the demands in the early part of July," and before the respective salaries for that month were earned. He thus took part in a transaction contrary to public policy, and must be held to have knowingly contravened the law.

3. The orders of the court below, consolidating certain actions, and directing or providing for interventions, were irregular: C. C. P., 387, 1048. But appellant did not except to the orders. Even if it should be conceded that the court below had no jurisdiction to make the orders, appellant was not injured by them, if upon the findings he was not entitled to a judgment in his favor.

Judgment affirmed.

Ross and MCKEE concurred.

No. 8,500.

LEHN v. CITY AND COUNTY OF SAN FRANCISCO.

Department One. Filed October 31, 1884.

SAN FRANCISCO LIABLE FOR SEWAGE DISCHARGE. --The city and county of San Francisco is liable for damages caused by the discharge of a public sewer, even if it was part of a plan adopted by the board of supervisors, that such sewer shou'd be left open at the places through which its contents flowed.

PRESENTATION OF CLAIM AGAINST COUNTY-STATUTES REQUIRING NOT APPLICABLE TO SAN FRANCISCO.-Section 4.072 of the political code, req iring claims against counties to be presented to the board of supervisors before an action can be maintained thereon, has no application to the city and county of San Francisco The act of 1855 requiring such presentation, even if applicable to the city and county of San Francisco, has been repealed by the political code.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff. The opinion states the facts.

J. F. Cowdery, for the appellant.

M. G. Cobb and Saffold & Meux, for the respondent.

MCKINSTRY, J. 1. The defendant is responsible for damages caused as alleged in the complaint, even if it was part of a plan adopted by the board of supervisors, that the sewers mentioned in the complaint should be left open at places through which their contents flowed on to the plaintiff's land: Guerin v. San Francisco, No. 6,090; Jessup v. San Francisco, No. 6,842.

2. Section 4,072 of the political code is inapplicable to the city and county of San Francisco: Pol. C., 4,087. No section or clause of the statutes which constitute the charter of San Francisco requires a claim or demand against the municipality to be presented to the supervisors before suit can be brought upon it. In People v. Supervisors, 28 Cal., 431, it was intimated-(although the point was not involved in the determination of the case)-that the provisions of the act of 1855, which made the presentation of a claim against a county to the supervisors and its rejection by them, a prerequisite to a suit upon it, applied to the city and county of San Francisco. Even if that case could be held to be authoritative as to the point prior to the adoption of the codes, the act of 1855 was repealed by the political code, and, as we have seen, the clause of that code as to presentation, is expressly declared to be inapplicable to San Francisco. Judgment affirmed.

MCKEE, J., and Ross, J., concurred.

9,635.

CHAFFEY ET AL. v. DEXTER.

Department Two. Filed November 1, 1884.

COMPROMISE OF ACTION BY ATTORNEY-INSTRUCTIONS OF CLIENT.-A compromise of an action, entered into by an attorney in accordance with his understanding of his client's wishes, as expressed by the client himself, will not be set aside simply because the attorney misunderstood his client's wishes.

APPEAL from an order of the superior court for San Bernardino county. The opinion states the facts.

H. M. Willis, for the appellants.

Henry Goodcell, Jr., for the respondent.

SHARPSTEIN, J. The plaintiffs, Geo. and Wm. B. Chaffey, and the Pomona Land and Water Company, brought an action against the defendant for the diversion of a large portion of the water of San Antonio creek which flows over the plaintiffs' lands. The defendant denied the material allegations of the complaint and alleged that he was the owner of the exclusive right to use and control forty inches, measured under a four inch presure, of the water of said stream for the purpose of irrigation, etc. The answer was filed on the fifteenth of October, 1883. On the twelfth of February, 1884, a judgment was entered in accordance with a written stipulation of the attorneys of the several parties, by which it was adjudged and decreed that the plaintiffs were entitled to the use and control of all the water flowing in said creek with the exception of twenty inches measured under a four inch pressure, which the defendant was entitled to use and control.

On the twenty-eighth of March, 1884, plaintiffs' attorney gave defendant's attorney notice that the plaintiffs would move the court that said stipulation and said judgment entered in pursuance thereof, be set aside, "on the ground that the said stipulation was made under mistake, inadvertence and excusable neglect of attorney for plaintiffs, H. M. Willis, and upon representations upon which he relied made by one Towner, attorney for Pomona Land and Water company, one of the plaintiffs," and that the motion would be made. on the papers in the case and upon affidavits.

By the affidavit of Mr. Willis, it appears that at some time intermediate the date of the commencement of the action and the entry of the judgment, he had a conversation with the plaintiff, Geo. Chaffey, Jr., in regard to a compromise of the action, on terms, as Mr. Willis understood, expressed in the stipulation which he subseqently entered into with the defendant's attorney. We refer to the following clause in said affidavit: "That, in a previous conversation with his client, Geo. Chaffey, Jr., the proposition of allowing twenty inches of water to defendant was discussed between them, but defendant did not understand his client in the way said client, as he now informs him, intended to be understood, to wit: that they were willing to allow, as a compromise, the defendant to have the amount of a certain box or flume, leading from said creek mentioned

in the pleadings, to defendant's farm-said box or flume containing about twenty inches of water-to be used by him, defendant, on his land exclusively, adjacent to said stream, at stated periods, about once a week; that the deponent had no authority, in writing or verbal, from his client, in relation to said compromise, but acted solely in said matter on his understanding of his client's wishes, and upon representations made to him by said Turner."

From this it appears that the matter of a compromise was talked over between the client and his attorney, and that the attorney did. compromise on the very terms to which he supposed his client had assented. We think, upon this evidence, that the Court was justified in finding that the client authorized his attorney to compromise as he did. Whether the attorney correctly understood his client, is a question which is left in doubt, and that being so, we cannot disturb the order of the Court below. The attorney undoubtedly acted according to his understanding of his client's wishes, as expressed by the client himself.

Order affirmed,

THORNTON and MYRICK concurred.

8261,

HARRIS ET AL v. HILLEGASS, ADMINISTRATRIX, &C. ET AL.

Department One. Filed November 6, 1884.

STALE DEMANDS-EQUITY MAY REFUSE TO ENTERTAIN.-A court of equity may refuse to entertain a suit, brought after unreasonable delay, although the defendant has not in his answer alleged that the claim is stale. A delay of more than twenty years in bringing this action held unreasonable.

APPEAL from a judgment of the superior court for Alameda county, entered in favor of the defendants, and from an order denying the plaintiffs a new trial.

E. J. Pringle, for the appellants.

Sidney V. Smith & Son, for the respondents.

MCKINSTRY, J. There was evidence to sustain the finding that the partnership, created by the contract of June 26, 1849, was dissolved more than twenty years before the commencement of this action. As the dissolution occurred more than twenty years before the commencement of this action, the court below-a court of equitywas justified in refusing to entertain plaintiffs' application for relief. And as laches deprives a plaintiff of the right to appeal to a court of equity, the court may refuse to entertain a suit brought after unreasonable delay, although the defendant has not in his answer alleged that the claim is stale: Sullivan v. Portland, 94. U. S., 811. Judgment affirmed.

MCKEE, J., and Ross, J., concurred.