necessary disbursements incurred up to the time of the rendition of judgment, and a failure to claim such costs, or any item thereof, in the manner required by the statute is deemed to be a waiver of such costs, and precludes a recovery thereof. (Riddell v. Harrell, 71 Cal. 260, 261; Sellick v. De Carlow, 95 Cal. 644; Chapin v. Broder, 16 Cal. 403.) The sheriff's charge for keeper's fees and expenses was a part of the necessary disbursements incurred by plaintiff in the action, and which she would have been entitled to recover against defendant; but, being costs and disbursements incurred before judgment, it was incumbent upon plaintiff to include and claim them in her cost bill, or they were waived. The statute makes no distinction between such disbursements and any other items of cost or expense incurred before judgment. The sheriff, judging from his return on the execution, seems to have proceeded upon the assumption that the keeper's fees and expenses were a part of his "accruing costs," under section 691 of the Code of Civil Procedure, and so chargeable against defendant without being included in the judgment; and such would seem to be the theory adopted by plaintiff, so far as his brief tends to enlighten us. But that theory is entirely erroneous. Such items are in no sense "accruing costs," as that term is used in the statute, the latter being such fees and expenses only as are incurred in executing the judgment. The item for keeper's fees constituting no part of the judgment against defendant, the sheriff was not authorized to charge or deduct the amount thereof against defendant in applying the proceeds of sale to the satisfaction of the judgment. It appears that, exclusive of that item, the property sold under the execution brought more than enough, when properly applied, to satisfy plaintiff's judgment, including the amount of costs claimed in her cost bill, to which she was entitled, and the accruing costs; and, this being so, the defendant was entitled to have the proceeds so applied and to have the judgment satisfied. The order is reversed and the court below directed to grant the motion. HARRISON, J., and GAROUTTE, J., concurred. [No. 18442. Department One.-July 31, 1895.] FRANCIS W. FRATT, APPELLANT, v. EMMA L. HUNT, EXECUTRIX, ETC., RESPONDENT. ESTATES OF DECEASED PERSONS-GUARANTY OF LEASE ALLOWED CLAIM FOR RENT ACTION-DEMURRER.-Where a claim presented against the estate of a decedent, as the guarantor of the faithful performance of the covenants of a lease, was approved by the executrix for rent due and to become due under the lease, no cause of action could arise or be based upon the lease in respect of rent due or to become due, and that portion of a complaint in which it is sought to recover a judgment for rents against the estate is subject to a general demurrer. ID. COVENANT TO RETURN PROPERTY IN GOOD CONDITION-PREMATURE ACTION.-Where the lessee of a hotel with furniture, fixtures, and bedding covenanted to return the property leased in as good condition as when leased, an action by the lessor against the guarantor of the lease to recover a sum of money as damages for broken panes of glass and an additional sum of money as damages for injury to the personal property leased, brought prior to the expiration of the lease, is premature; and no cause of action for a breach of the covenant to return the property in good condition could arise until the time came for a return of the property. ID. DAMAGE TO PROPERTY DESTROYED-MATURITY OF CAUSE OF ACTION-PRESENTATION OF CLAIM-PLEADING.-A claim of damages against the guarantor, for personal property destroyed and lost by the lessee, arises at the date of the destruction of the property regardless of the time of the expiration of the lease, the lessee having placed it out of his power to return the destroyed property at the expiration of the lease and became liable immediately upon its destruction; but where the complaint for such damages does not show either that the claim for damages for the destruction of the property was presented against the estate of the deceased guarantor, or that the breach of the contract was made subsequent to the presentation and rejection of a contingent claim for damages to the personal property leased, the complaint does not state a cause of action to recover such damages, nor show a present liability of the guarantor. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. SEAWELL, Judge. The facts are stated in the opinion of the court. The original action was properly commenced, so far, at least, as the rent then due was concerned, and thereby the court acquired jurisdiction to determine the whole matter involved in that suit. (Monreal v. Bush, 46 Cal. 79; Pond v. Davenport, 45 Cal. 225; Code Civ. Proc., sec. 1500.) The action, so far as the claim for damages for loss and injury to the personal property was concerned was properly commenced, as the plaintiff was not permitted to divide or split up his claim and bring several actions. (Code Civ. Proc., 728, 1498; Marziou v. Pioche, 8 Cal. 536; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423; Agard v. Valencia, 39 Cal. 292; Thomas v. Rock Island etc. Co., 54 Cal. 578; De la Guerra v. Newhall, 53 Cal. 141; Bostwick v. McEvoy, 62 Cal. 496; Wolf v. Marsh, 54 Cal. 232; Bishop on Contracts, sec. 690.) The demurrer is general, and a cause of action being stated, the demurrer must be overruled. (McPherson v. Wes ton, 64 Cal. 275; White v. Lyons, 42 Cal. 279; Grain v. Aldrich, supra; Cassidy v. Cassidy, 63 Cal. 352; Griffiths v. Henderson, 49 Cal. 566; Spanagel v. Reay, 47 Cal. 608; Cox v. Western Pac. R. R. Co., 47 Cal. 87.) Mastick, Belcher & Mastick, for Respondent. The complaint states no cause of action upon the covenants in the lease. (Chipman v. Emeric, 5 Cal 49; 63 Am. Dec. 80; Lawrence v. Knight, 11 Cal. 298; Hestres v. Brennan, 37 Cal. 385; Doyle v. Phoenix Ins. Co., 44 Cal. 264; Parnell v. Hancock, 48 Cal. 452; Wittenbrock v. Bellmer, 57 Cal. 12; Harmon v. Ashmead, 60 Cal. 439; Morgan v. Menzies, 65 Cal. 243.) No liability on the part of the guarantor could attach until the time for performance of the covenants had arrived. (Donahue v. Gift, 7 Cal. 242; Code Civ. Proc., secs. 1498, 1504, 1582; Verdier v. Roach, 96 Cal. 467.) The complaint alleges no facts which would constitute a cause of action even against the lessee. (Robinson v. Exempt Fire Co., 103 Cal. 1; 42 Am. St. Rep. 93.) CVIII. Cal.-19 GAROUTTE, J.-Francis W. Fratt, as the owner of certain hotel property situated in the city of Sacramento, leased the same, including furniture, etc., to one Sherwood for the term of five years, at a stipulated rental per month. This contract of lease contains the following provision: "And it is agreed by the party of the second part that, at the expiration of said term, or the sooner termination thereof, he will return to the party of the first part all the furniture, fixtures, bedding, gas fixtures, and all other articles described in said inventory A, according to the inventory therein mentioned, in as good condition as said articles now are. Any window glass that may be broken must be replaced by said second party, with glass of equal quality, at his expense, and at the expiration of said term the said party of the second part will quit and surrender the said premises in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted." Inventory "A" contained a statement in detail of the personal property aforesaid. Hunt, the defendant's testator, in writing, guaranteed the faithful performance of the covenants of the lease upon the part of Sherwood. Prior to the expiration of the five-year term, Hunt, the guarantor, died, and thereupon Fratt presented a claim to the defendant as executrix of his estate, for: 1. Balance due for rent already accrued; 2. Amount of rent hereafter to become due prior to the expiration of the lease; 3. A contingent liability, to wit, "For any damage claimant may sustain by reason of any injury which may be done to any of the personal property described in said inventory or schedule B, hereto attached, and also for any damage which claimant may sustain by reason of the nondelivery or return to him of any of the property described in said schedule B, but the amount of such damage this claimant is at this time unable to state." The aforesaid claim set out the guaranty of Hunt and the facts in detail concerning the transaction. Both the absolute and contingent claim for rent were allowed by the exec utrix, but the contingent claim for damages for loss and injury to furniture, etc., was rejected. Thereupon this action was brought upon the claim as presented, and a general demurrer to the complaint was interposed, and sustained by the trial court. The sole purpose of this appeal appears to be to test the ruling of the court in sustaining that demurrer. In so far as the claim was for rent due and to become due it was approved by the executrix; hence, no cause of action could be based upon it in those particulars; and that portion of the complaint wherein it is sought to recover a judgment for rents was clearly susceptible to a general demurrer. Plaintiff also sued to recover a sum of money as damages for broken panes of glass, but, inasmuch as Sherwood agreed to replace all such glass upon the expiration of the lease, an action for such damage prior to that time was clearly premature. The complaint contains the following allegation: "Plaintiff alleges that, before the filing of the complaint to which this is amendatory, the said T. J. Sherwood had carelessly and negligently permitted a large amount of personal property, furniture, and fixtures leased with said hotel, and described in exhibit B, attached to said complaint, to become utterly lost and destroyed; that said personal property, furniture, and fixtures, so lost and destroyed, was, at the time of said loss and destruction, of the value of $1,000, as this plaintiff is informed and believes; that, by reason of said loss and destruction, of said personal property, this plaintiff was damaged in the sum of $1,000, as he is informed and believes. The plaintiff further alleges that the personal property, furniture, and fixtures described in said exhibit B, which was at the date of filing said complaint and still is in the said Union Hotel, and which consists of all of said personal property, furniture, and fixtures in said exhibit described, except such as has been lost or destroyed as aforesaid, was during the continuance of said lease, and while the same was in the possession of said T. J. Sherwood, by his carelessness and negligence greatly injured |