complies in this respect with the requirement of the Code of Civil Procedure, section 538, that it shall show "that the defendant is indebted to the plaintiff."

As said by this court in Bank of California v. Boyd, 86 Cal. 388: "The indebtedness to the plaintiff is the principal element required in the affidavit, and when that appears by direct statement, and there is nothing in the affidavit inconsistent with such direct statement of indebtedness, the affidavit as to such indebtedness should, in our judgment, be held sufficient." In that case it is further said: "The same particularity of statement. . . . is not required in the affidavit for the issuance of a writ of attachment as in the complaint." (See, also, Flagg v. Dare, 107 Cal. 482.)

2. It is contended that the affidavit is fatally defective in that the sum of indebtedness therein specified differs from the amount of plaintiff's demand as stated in the complaint and in the writ; the sum of indebtedness specified in the affidavit being seven thousand seven hundred and fifty dollars, whereas the amount of plaintiff's demand, as stated in the complaint and also in the writ, is seven thousand seven hundred and fifty dollars, "with interest thereon from November 25, 1893, at seven per cent per annum."

While section 540 of the Code of Civil Procedure requires the writ of attachment to command the sheriff to attach so much property "as may be sufficient to satisfy the plaintiff's demand," and to state the amount of such demand "in conformity with the complaint." there is no requirement that the affidavit shall specify the amount of the indebtedness in conformity with plaintiff's demand as stated in the complaint; nor that the writ shall state the amount of plaintiff's demand in conformity with the affidavit. Yet the nature of the indebtedness is sufficiently stated in the affidavit to show that it draws legal interest from the date of its maturity; so that, in legal effect, there is no substantial difference between the affidavit and the complaint in respect to interest. The indebtedness, the amount of

CVIII. Cal.-12

which the statute (parenthetically) requires to be specified in the affidavit is the principal thing, to which the right to legal interest pertains as a mere incident. An assignment of the principal debt, without reference to interest, would pass the incidental right to interest. However, I think it a sufficient answer to the objection under consideration that the statute requires the affidavit to specify only the amount of the indebtedness, and not the amount of plaintiff's demand in the complaint, which may be, and in this case is, for the principal debt, interest and costs. It is to be observed, however, that the amount of neither the interest nor the costs for which judgment is demanded is stated in the complaint; and that the amount of neither could have been estimated at the time the affidavit was made, since such amount of each depended upon future contingencies.

3. The statute requires the affidavit to specify the amount of the indebtedness, "over and above all legal setoffs or counterclaims." But the language of the affidavit in this case is, 'over and above all legal setoffs and counterclaims." And it is contended that the substitution of the conjunction and in the affidavit for that of or in the statute is such a departure from the statutory requirement as makes the affidavit ineffectual as the foundation for the writ of attachment. Counsel for appellant say: "There is a distinction between setoffs and counterclaims . . Counterclaim embraces both setoff and recoupment, and is more comprehensive than either." Conceding this, and that the word or, in the statute, is used in its ordinary disjunctive sense (which I do not admit), still the affidavit must be held sufficient; for, if it be sufficient to state that the amount of indebtedness is over and above either setoffs or counterclaims, it must be sufficient to state that the amount is over and above both setoffs and counterclaims. Where a statute authorizes an act to be done upon the existence

any one of several distinct conditions, the existence

of all such conditions would surely be sufficient to justify the act.

I think the order should be affirmed.

BRITT, C., and SEARLS, C., concurred.

For the reasons given in the foregoing opinion the order is affirmed.

HARRISON, J., Garoutte, J., Van Fleet, J.

[No. 15606. In Bank.-July 18, 1895.]

A. C. FREEMAN ET AL., RESPONDENTS, v. J. B. BELLEGARDE ET AL., APPELLANTS.

CONVEYANCE-DESCRIPTION-PHYSICAL BOUNDARY-CENTRAL POINT. -In the absence of any qualifying term, the designation in a conveyance of any physical object or monument as a boundary implies the middle or central point of such boundary. ID.-CONSTRUCTION OF PRIVATE GRANT-DESIGNATION OF TIDAL STREAM AS BOUNDARY-THREAD OF STREAM-PRESUMPTION.-A private grant is to be interpreted in favor of the grantee; and, where the grantor in a private conveyance is the owner of the bed of a tidal stream, which is designated as a boundary of land granted or mortgaged, the conveyance or mortgage will be held to extend to the middle line or thread of the stream, and the general presumption is that the title of a purchaser or mortgagee extends as far from the shore toward the thread of the stream as the grantor owns, in both tidal and fresh waters.

ID. MIDDLE LINE OF CREEK MUST PREVAIL OVER COURSES AND DISTANCES.-Where a creek is made the boundary of the land conveyed, and the calls of the conveyance ascend the creek, the line ascending the creek follows the thread of the stream, and the courses and distances must yield to the actual line of the creek. ID.-LINE ASCENDING AND CROSSING CREEK-CROSSING FROM THREAD OF STREAM.-A call for a line ascending a creek, and then crossing the creek to the end of an old wall, is not inconsistent with holding that the call ascending the creek follows the thread of the stream, and the next course will be deemed to cross the creek from the thread of the stream toward the end of the wall.

ID.-BOUNDARY BY SHORE OF STREAM-INTERSECTION OF DITCH WITH SHORE. In the absence of any qualification a grant bounded by the shore of a river or stream, when the grantor is the owner thereof, conveys the land up to the lowest point of the shore at any time; but it is competent for the grantor to so designate the line on the shore which shall constitute the boundary, that there shall be no uncertainty in its location, and, where the starting point of the description is the intersection of a ditch with the shore line, the starting point is susceptible of exact location, and the term "shore" must be construed in the same meaning wherever used in the conveyance.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J. C. B. HEBBARD, Judge.

The facts are stated in the opinion.

Warren Olney, Harding & Forbes, William Grant, C. S. Cushing, and Charles F. Hanlon, for Appellants.

The deed referring to the survey by N. Schofield, incorporated the survey into the deed, and it is part of the, deed. (Hudson v. Irwin, 50 Cal. 450.) The description taken in connection with the Schofield survey and the call for the crossing of the creek show an in tention to make the south bank of the creek a boundary and not to make the line run down the center of the creek; and the intention of the parties must prevail. (Dexter v. Riverside and Oswego Mills, 15 N. Y. Supp. 374; 61 Hun, 619; Kimball v. Semple, 25 Cal. 449; Mott v. Mott, 68 N. Y. 253; People v. Jones, 112 N. Y. 604; Severy v. Central Pac. R. R. Co., 51 Cal. 197; Maynard v. Weeks, 41 Vt. 617; Tyler v. Hammond, 11 Pick. 193; Holloway v. Delano, 18 N. Y. Supp. 704; 64 Hun, 34.) Where the boundary is upon tide water the owner takes only to high-water mark. (Civ. Code, sec. 830; Code Civ. Proc., sec. 2077; 3 Washburn on Real Property, 5th ed., 440; Ex parte Jennings, 6 Cow. 518; 16 Am. Dec. 447; Chapman v. Kimball, 9 Conn. 38; 21 Am. Dec. 707; Hagan v. Campbell, 8 Porter, 9; 33 Am. Dec. 267.) Islais creek, being a stream in which the tide

ebbs and flows, is navigable at common law.

(Ex

parte Jennings, 6 Cow. 518; 16 Am. Dec. 447; McCullough v. Wall, 4 Rich. 68; 53 Am. Dec. 715; Rhodes v. Otis, 33 Ala. 578; 73 Am. Dec. 439.) A lot bounded on a navigable river extends only to low-water mark. (Child v. Starr, 4 Hill, 369; Dunlap v. Stetson, 4 Mason, 349; Hatch v. Dwight, 17 Mass. 298; 9 Am. Dec. 145; Howard v. Ingersoll, 13 How. 381; Alabama v. Georgia, 23 How. 505; Murphy v. Copeland, 58 Iowa, 409; 43 Am. Rep. 118.)

Freeman & Bates, for Respondents.

The thread of the creek was the true boundary. (Spring v. Hewston, 52 Cal. 444.) The mortgagors under whom the title was taken owned the whole creek,. and, when a private grantor owns both the bed and bank of the stream by which the grant is bounded, the purchaser's title extends to the thread of the stream, or as far into the stream as the grantor owns in both tidal and fresh waters. (Gould on Waters, secs. 194, 195; Morrison v. Keen, 3 Greenl. 474; Berry v. Snyder, 3 Bush, 283; 96 Am. Dec. 219; Sleeper v. Laconia, 60 N. H. 201; 49 Am. Rep. 311; Lunt v. Holland, 14 Mass. 150; Williamsburg etc. Co. v. Smith, 84 Ky. 375, 376; Norcross v. Griffiths, 65 Wis. 610, 615; 56 Am. Rep. 642; Jones v. Soulard, 24 How. 65; Watson v. Peters, 26 Mich. 508, 517; Winslow v. Patten, 34 Me. 25; Lapish v. Bangor Bank, 8 Greenl. 85, 92; Doane v. Willcutt, 5 Gray, 328; 66 Am. Dec. 369; Boston v. Richardson, 105 Mass. 351, 355-57; Boston v. Richardson, 13 Allen, 155; Harlow v. Fisk, 12 Cush. 302, 305.) The fact that the courses and distances mentioned in the deed run along the bank of the stream, or that a survey was made which does not include land under water, does not limit the effect of the deed as conveying the land under water owned by the grantor. (Yates v. Van De Bogert. 56 N. Y. 526, 531; Brown Oil Co. v. Caldwell, 35 W. Va. 95; 29 Am. St.