husband to a wife, pending an action for a divorce, | tiff. These affidavits filed by and on behalf when necessary to the support of herself or chil- of the defendant, including his cross-comdren, or the prosecution or defense of the action, plaint, may be altogether false, but they invests the court with nothing but a legal discretion, reviewable on appeal, and an order granting contain many specific statements of fact such alimony will be reversed when it appears that which, if false, would sustain charges of the wife occupies the homestead, which yields a perjury, and which, in the absence of any good income; that she is in no immediate need of denial or rebutting evidence, must be acmoney; that the property enjoyed by her is more cepted as true. So regarded they show valuable and productive than that held by the hus- that the defendant's burdens and necessiband; and that he is maintaining the greater num-ties are greater, and his means and ability ber of their children. In bank. Appeals from superior court, to sustain them less, than are the plaintiff's. The court, however, without any findings of fact, ordered the defendant to pay to the plaintiff $50 a month for her support pending the action, and made a further order that he pay to her attorneys $500 counsel fees within 10 days from the date thereof, and rendered judgment there for. From this order the defendant appealed. Two days after service of his notice of appeal the court amended or modified the order so appealed from by directing payment of the $500 to the plaintiff, to enable her to prosecute the action. This amendment seems to have been made to meet the objection to a similar order in the case of Sharon v. Sharon, 75 Cal. 1, 16 Pac. Rep. 345. From the order so amended the defendant again appealed, and these are the two appeals which we are considering together. A number of points are made and fully argued by appellant in support of his appeals. The respondent has offered no argument in reply. Under the circumstances we feel indisposed to discuss or to decide any point a decision of which is unnecessary, and, as the whole matter may be disposed of upon the ground that the showing on the part of the plaintiff was insufficient to justify the original order, we shall rest our decision upon that ground alone. It is provided by section 137 of the Civil Code that "when an action for divorce is pend BEATTY, C. J. These are appeals from orders granting the plaintiff alimony and counsel fees, pending a suit for divorce. Her action is upon the ground of cruelty, and there is a cross-action by the defendant upon grounds of cruelty and desertion. The motion for alimony was based upon the pleadings, and upon an affidavit of the plaintiff in which she alleges, in the most general terms, that she is in bad health, unable to labor and earn a living, in indigent circumstances, and without money or other means to support herself and carry on her suit. On information and belief she charges that the defendant is possessed of large means. All her allegations are so vague and general as to render it very doubtful if perjury could be assigned upon any one of them, however false they may be. In opposition to her motion the defendant filed his own affidavit, supported by those of seven witnesses,-apparently disinterested and well informed as to the matters in dispute,-from which and from the pleadings it is made to appear that the plaintiff is in good health; that there are six children of the marriage, the eldest be-ing the court may, in its discretion, require ing thirteen and the youngest three years the husband to pay as alimony any money of age; that before commencing her action necessary to enable the wife to support herfor divorce she induced the defendant to self or her children, or to prosecute or deconvey to her the quarter section of land fend the action." There is nothing new in upon which they had their family residence; this provision of the Code, and the discrethat she thereupon turned the defendant tion with which it invests the court is not and four of the children out of doors, al- an arbitrary power, but is the same legal lowing only two of the younger ones to discretion exercised by courts having jurisremain with her; that she has since been in diction of the action of divorce antecedent receipt of an income of from $800 to $1,000 to, and independent of, express statutory per annum rents of said quarter section, authority. It is a discretion to be exercised exclusive of the dwelling-house, which she in view of the circumstances of the parties, retains for her own use. One of the affiants their several necessities, and the pecuniary swears that he has recently purchased from ability of the husband. A sum absolutely plaintiff hay to the value of $324, of which small may be relatively excessive, and sum $174 remain due, which he has been where, as in this case, the wife is plaintiff, and is willing to pay, but the plaintiff has where she has possession of the homestead, frequently told him she does not need it. where she has burdened herself with but The defendant sets out a list of all his per- two out of six young children, where her sonal property, consisting of stock of the property, or that which she enjoys the use value of $700, and farming implements of of, is more valuable and productive than the value of $500, and $50 in money, all ab- the husband's, and where, as above stated, solutely necessary to enable him to carry it appears that his burdens and necessities on his farm and support himself and the are greater, and his means less, than hers, four children under his care. The affidavits it is an excess of any discretionary power of the other witnesses show that the land of the court to award temporary alimony. owned by defendant, and in his possession, | The orders appealed from are reversed. is much less valuable and productive than the homestead quarter section which is in the possession of and claimed by the plain We concur: WORKS, J.; PATERSON, J.; SHARPSTEIN, J.; Fʊx, J.; THORNTON, J. 74 80 Cal. 132 PACIFIC REPORTER, VOL. 22. (Cal RODRIGUEZ DE CAZARA V. ORENA. (No. 12,- | profits, is bound to account for them, or 933.) (Supreme Court of California. Aug. 1, 1889.) QUIETING TITLE. 1. Where land is conveyed by a deed absolute in form, to secure an indebtedness, the owner of the equitable title cannot have the same quieted without a payment of the debt, though it be barred by the statute of limitations. 2. In such case defendant, who had been in possession of the land or in receipt of the rents and profits, must account for the same, to be credited on the original debt. In bank. Appeal from superior court, Santa Barbara county; R. M. DILLARD, Judge. R. B. Canfield, for appellant. ton, for respondent. W.C.Strat the value of the use and occupation, to be credited upon the amount of his note, the judgment must be reversed. It is therefore the cause remanded for further proceedordered that the judgment be reversed, and ings, with leave to the defendant to amend his answer or to file a cross-complaint, and with leave to plaintiff also to amend if she be so advised." We concur: WORKS, J.; PATERSON, J.; SHARPSTEIN, J.; THORNTON, J. 80 Cal. 57 CITY AND COUNTY OF SAN FRANCISCO V. ITSELL et al. (No. 12,952.) (Supreme Court of California. Aug. 1, 1889.) MUNICIPAL CORPORATIONS-DEED3. 2. A judgment in an action by T.'s grantee against the city, quieting plaintiff's title to the land in controversy, bars a recovery of the land in ejectment by the city against the grantees of said plaintiff; the city having no other title than San Francisco v. Holladay, 17 Pac. Rep. 942. that held by it before the judgment. Following 3. When a complaint by a city is unverified, the answer need not be verified, under Code Civil Proc. Cal. § 446, providing that an answer shall be sworn to when the complaint is verified, or the plaintiff is the state or any state officer suing officially. by going to trial without objection. 4. Want of verification of an answer is waived BEATTY, C. J. This is a suit to quiet title. The complaint is in the usual form, land claims by ordinance passed in 1855, authorized 1. The city of San Francisco, to settle private unverified. The answer is a general denial the mayor to enter the land at the land-office, and of all the allegations of the complaint, ex- to hold it in trust for those in actual possession. cept that defendant claims an interest in It was also provided that part of the land should the property adverse to the plaintiff, fol- be laid out as public squares, and this was done, lowed by a plea of the statute of limita- one of the squares being called "Hamilton Square.' tions. The finding of the superior court but no entry was ever made. Act Cong. July 1, Act Cal. March 11, 1858, ratified this ordinance, was against the defendant as to his claim 1864, relinquished to the city the land within its under the statute, but the court found as limits for the uses specified in the ordinance menfollows concerning the title: On January tioned. T. had a claim to the land included in 16, 1877, the lot in controversy was the Hamilton square, and compromised with the city property of Bernarda Rodriguez, who on by conveying part of the land to it, and receiving that day mortgaged it to the defendant, in return a conveyance for another part thereof. Orena, to secure the payment of her prom-nance, and were ratified by an act of the legislature. These deeds were made in pursuance of an ordiissory note of even date, payable in one Held, that the conveyance by the city was void, as year. On August 17, 1878, her note being it held the land in trust for the public. unpaid, Bernarda Rodriguez executed, acknowledged, and delivered to Orena a deed in the form of an absolute conveyance of said lot, but this was only intended as security, it being orally agreed at the time that Orena might sell the lot, pay himself out of the proceeds, and that any balance over should be paid to the plaintiff in this action. Orena has never sold the lot, and no part of the note has been paid. He has no title to the lot except such as he may have acquired by said deed of Bernarda Rodriguez, and the plaintiff has succeeded to all the title remaining in Bernarda after her deed to Orena. Upon these findings the superior court decreed a reconveyance of the lot upon payment by plaintiff to de- Ejectment by the city and county of San fendant of the amount due him on account Francisco against Andrew J. Itsell and othof said note of Bernarda Rodriguez. The ers. In 1855 the city of San Francisco passed plaintiff appeals from the judgment, con- an ordinance intended to assist in the settending that she is entitled to a reconvey- tlement of private land claims within its ance, and to have her title quieted without municipal limits. By it the mayor was dipayment. She asks us to direct a modifi- rected to enter all the land in the city at cation of the decree in accordance with this the land-office, and the grant, when obcontention. We do not think this case can tained, was to inure to the benefit of those be distinguished, on the facts found, from in actual possession of the land. Certain that of Booth v. Hoskins, 75 Cal. 271, 17 public squares were to be laid out in the Pac. Rep. 225, where it was held that the land so granted. No entry was made, but plaintiff could not have his title quieted ex- the council passed another ordinance, uncept upon condition of payment of the debt der which it proceeded to lay out squares, to secure which he had mortgaged the among which was Hamilton square, the land, notwithstanding the debt was barred land in controversy. March 11, 1858, the by the statute of limitations. The decree legislature ratified these two ordinances, here follows that decision, the correctness reciting them literally. Act Cong. July 1, of which we see no reason to question, but 1864, relinquished to the city all the land the facts found, and upon which this de- within its corporate limits, for the uses and cree rests, are outside the issues made by purposes specified in the ordinance of 1855. the pleadings, and wholly unsupported by It was contended that more land was them. For this reason alone, and because taken for Hamilton square than was authe defendant, if he had been in possession | thorized by the ordinance. One Edward of the lot or in reception of the rents and Tompkins claimed land including that now Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; F. W. LAWLER, Judge. in controversy, and he compromised with and cannot convey it, must be considered the city by conveying to it certain parts of as settled. HAYNE, C. This was an action of ejectment brought by the city against numerous defendants for a tract of land known as "Hamilton Square.' ." As to a number of the defendants, it was found that they "are not and were not, at the commencement of this action, in the occupation or possession of the premises described in the complaint, or any part thereof." No question is made as to the correctness of the judgment in favor of these defendants. Judgment passed in favor of the other defendants upon two grounds, which are set forth in the findings. The plaintiff does not bring up any of the evidence, but contends that the judgment should be reversed upon the findings. the land, and receiving a conveyance of 2. The defendants, however, pleaded and other parts; these conveyances being pur-proved a judgment brought by their prede suant to an ordinance of the city. This or-cessor in interest against the city, and rely dinance, as stated in the opinion, was after- upon such judgment as a bar to the action. wards ratified by the legislature. Defend- And this position must be sustained. It ants claimed under Tompkins, and Tomp- appears that Tompkins conveyed to one kins under the deed from the city. Judg- Edward F. Palmer, and it is found that on ment for defendants, and plaintiff appeals. September 11, 1869, Palmer commenced an Flournoy & Mhoon, and Geo. Flournoy, action against the city in the late Fifteenth Jr., for appellant. Wm. & Geo. Leviston, district court to quiet his title; that the Thos. D. Riordan, Geo. A. Knight, Jarboe, city appeared and contested said action, Harrison & Goodfellow, P. F. Dunne, A. H. and that the issue was whether Palmer or Loughborough, H. A. Powell, Tobin & To- the city had the title; that this issue was bin, Stanley, Stoney & Hayes, H. C. Camp- determined in favor of Palmer; and that bell and Thos. F. Barry, for respondents. judgment was thereupon entered, by which it was ordered, adjudged, and decreed that the plaintiff, Edward F. Palmer, was at the commencement of said action, and still was, the lawful owner, in fee-simple absolute, of the premises described in the complaint therein, and that the said defendant, the city and county of San Francisco, had not any estate, right, title, or interest therein; and that said defendant, the city and county of San Francisco, be, and by said judgment was, forever thereafter enjoined, restrained, and debarred from asserting or claiming any estate, right, title, or interest in said premises, or any part thereof." It does not appear whether any appeal was taken from this judgment, but it is found that it "still remains in full force and effect, 1. In July, 1869, a compromise was agreed not reversed or otherwise vacated," and upon between the city and one Edward that the city" has no other or different title Tompkins, who claimed a tract including or claim of title to the premises in controthe premises in controversy. By this com- versy than it had at the time of the com. promise the officers of the city, under an or- mencement of said action of Edward F. dinance of the board of supervisors, exe- Palmer." The defendants are successors cuted to Tompkins a conveyance of the in interest of Palmer. Upon these findings premises in controversy, and in considera- we think it clear that the Palmer judgment tion thereof Tompkins conveyed to the city is a bar to the action. This precise ques the other portion of the tract claimed by tion was decided in San Francisco v. Holhim. The ordinance and deeds were sub-laday, 76 Cal. 18, 17 Pac. Rep. 942, and that sequently ratified by act of the legislature. decision is conclusive of this branch of the The defendants claim through Tompkins. case. We think that this defense cannot be sustained. The city held the square in trust for the public, and had no power to dispose of it by way of compromise or in any other manner; nor could the legislature ratify such a disposition of the trust property. In Hoadley v. San Francisco, 50 Cal. 275, the court said, with reference to this same square: "The title was granted to the city in trust for public use, and the city had no authority by virtue either of the statute of March 11, 1858, or of the act of congress of July 1, 1864, to alienate or in any manner dispose of it, but only to hold it for the purposes expressed in the statute. It was granted to the city for public use, and is held for that purpose only. It cannot be conveyed to private persons, and is effectually withdrawn from commerce; and, the city having no authority to convey the title, private persons are virtually precluded from acquiring it." This case was approved and followed in Sawyer v. San Francisco, Id. 875, and in Hoadley v. San Francisco, 70 Cal. 324, 12 Pac. Rep. 125, which was affirmed by the supreme court of the United States upon writ of error. 124 U. S. 646, 8 Sup. Ct. Rep. 659. The rule, therefore, that the city holds property like this in trust, 3. It is argued for the appellant, however, that the answers of the defendants herein were required to be verified, and, not having been so, should be disregarded. But, in the first place, the answers were not required to be verified. The only statute to which counsel for the city refer in support of their position is section 446 of the Code of Civil Procedure, which provides, among other things, that the answer must be verified "when the complaint is verified, or when the state, or any officer of the state, in his official capacity, is plaintiff." The complaint was not verified, and the city is not the state, or an officer thereof. The case of Stockton v. Dahl, 66 Cal. 378, 5 Pac. Rep. 682, is not in point. In that case there was a statute which expressly required the answer to be verified. In the second place, it appears from the findings that the case "was tried upon the issues raised by the complaint and the answers of the defendants," (specifying them;) and the plaintiff cannot go to trial without objection for the want of a verification, and raise the point for the first time after the decision has gone against him, (see Arrington v. Tupper, 10 Cal. 465; McCullough v. Clark, 41 Cal. 302.) We therefore advise that the judgment be affirmed. RECOVERY OF TAXES PAID. 1. A complaint in an action to recover taxes paid under protest, which alleges that the assessment did not show the number, kind, amount, and quality" of the personal property assessed, is demurrable; it being sufficient if the assessment shows generally the character of the property, under Pol. Code Cal. § 3650, providing that a failure to enumerate personal property in detail shall not invalidate the assessment. 2. Such complaint does not show payment of the tax under duress or coercion, where there is an ment, nor does it disclose the contents of the written statement furnished by plaintiff to the assessor, nor allege that the assessment did not conform, in its descriptained in the statement furnished by plaintion of property, to the description contiff, nor show wherein it differed therefrom. Assuming the statement furnished to have been such as the law required, it must be presumed, in support of the assessment, unless the contrary is alleged, that the description in the assessment was identical with that contained in the statement. But whether the statement was correct or not, if the assessor adopted the description fur nished by the plaintiff, the latter will not be heard to complain of its indefiniteness. San Francisco v. Flood, 64 Cal. 504, 2 Pac. Rep. 264; Cadwalader v. Nash, 73 Cal. 43, 14 Pac. Rep. 385. allegation that the delinquent list had been pub-ly Commissioners' decision. In bank. Appeal from superior court, San Diego county; J. R. AITKIN, Judge. J. E. Deakin, for appellant. J. L. Cope land, for respondent. The Political Code (section 3650) expressprovides that a failure to enumerate personal property in detail does not invalidate the assessment thereof. The complaint, without describing the assessment, merely alleges conjunctively that the assessment did not show "the number, kind, amount, and quality" of the personal property. This negative allegation is pregnant with the affirmative admission that the assesssites, and is not a positive allegation that ment did show at least three of these requithe assessment failed to show any particuVANCLIEF, C. This is an action to re-lar one of the four; yet, under the proviscover back certain taxes upon personal ions of the Code, the assessment is suffiproperty paid by the plaintiff to the defend- cient if it shows generally the kind or qualant as tax collector of San Diego county, un-ity of personal property, so that the taxder protest. The complaint alleges, in sub-payer may know for what property he is stance, that the assessment of plaintiff's taxed. San Francisco v. Flood, supra. personal property for taxes for the fiscal The complaint is further insufficient, in year ending June 30, 1887, was illegal and that it fails to show that the payment of void, for the reason that it did not show the personal taxes was made under duress the "number, kind, amount, and quality" or coercion. The complaint merely alleges of the personal property attempted to be that the delinquent list was being pubassessed; that on or about the 16th day of lished, but does not allege that any real February, 1888, the delinquent tax-list for property was assessed to or owned by the the preceding fiscal year had come into the plaintiff upon which the assessment of perhands of the defendant as tax collector, sonal property became a lien. Therefore and the publication thereof had been com- the allegation as to the publication of the menced; and that on said day plaintiff delinquent list has no relevancy to the quespaid to the defendant the amount of per- tion of coercion. There is no allegation of sonal taxes demanded of him, to-wit, the any seizure of, or of any threat or attempt sum of $238.15, and 5 per cent. penalty and to seize, plaintiff's property. In the abcosts, and at the same time protested sence of acts amounting to duress or coeragainst the payment thereof, upon the cion, the payment of the tax was volunground that the assessment thereof was tary; and the mere protest made at the illegal and void for the reason above stat-time of payment does not divest it of its ed. An amendment to the original com- voluntary character. Where there is no leplaint averred, in substance, that prior to the assessment plaintiff furnished to the assessor, in conformity to section 3629 of the Political Code, a written statement under oath, setting forth specifically all the real and personal property owned by plaintiff, or in his possession, or under his control, at 12 o'clock M. on the first Monday in March, 1887, and that the assessment was made in an assessment book prepared by the assessor, with appropriate head- the foregoing opinion the judgment is afings, alphabetically arranged. To the amended complaint the defendant interposed a general demurrer, which was sustained, and upon failure of plaintiff to further amend his complaint judgment was rendered for the defendant, from which the plaintiff brings this appeal. The complaint gal compulsion, the legal effect of the payment is not impaired by a protest. McMillan v. Richards, 9 Cal. 417; Bucknall v. Story, 46 Cal. 597; Bank v. Webber, 52 Cal. 73; Wills v. Austin, 53 Cal. 152; Brumagim v. Tillinghast, 18 Cal. 266. We think the judgment should be affirmed. We concur: FOOTE, C.; HAYNE, C. PER CURIAM. For the reasons given in firmed. (80 Cal. 181) LAKESIDE DITCH Co. v. CRANE et al. (No. 12,296.) (Supreme Court of California. Aug. 5, 1889.) does not set forth a copy of the assess-priators to determine who has the superior right to divert the water of the stream, a finding that plaintiff has adversely appropriated the waters of the stream, "the waters so diverted and used being sufficient to fill its ditch, whenever there was water in the stream to fill it, and when there was not sufficient water to fill the plaintiff's said ditch it took what water came down the creek in its natural flow," is indefinite and uncertain. If plaintiff diverted only the water that defendants allowed to pass plaintiff acquired no right as against defendants to a supply of water sufficient to fill its ditch. 2. As the defendants had no interest by virtue of prior appropriation, it was immaterial that plainiff had not obtained permission to construct its ditch from the water commissioners, in compliance with St. Cal. 1858, p. 112, which provides that "no ditch shall hereafter be taken out of any stream in the waters of which different persons have an interest by virtue of prior appropriation, without leave of said commissioners." Nor does the fact that defendants had obtained the consent of the commissioners give them any right against plaintiff, the prior appropriator. the plaintiff's, it may be true, as stated by the court, that the plaintiff has continuously, since 1874, diverted water sufficient to fill its ditch whenever there was water in the stream to fill it, and, when there was not sufficient water to fill it, that it took what water came down the creek in its natural flow, and yet plaintiff might not have acquired any right, as against defendants, to a supply of water sufficient to fill its ditch. If the plaintiff's ditch was simply diverting water which the defendants allowed to pass down the stream while the head-gate of their ditch was closed, the act of the plaintiff in diverting the water thus permitted to pass down the stream could not, in the nature of things, be adverse to the right of the defendants. The latter could not complain, and title by prescription cannot be acquired, unless the acts constituting the adverse use are of such a nature as to give a cause of action in favor of the person against whom those acts are performed. Title by prescription is created in such cases only where the conduct of the party who submits to the use by another cannot be accounted for on any other hypothesis than that which raises the presumption of the grant of an ease5. Where it appears that plaintiff was recognized ment. The conduct of the party claiming in the community as a corporation, and its records the benefit of the presumption must in all show that it was acting as a corporation, and in all its dealings was styled as a corporation, and that cases have been such in itself as to give it had held corporate meetings, and pursued cor- the other party the right to complain. The porate forms of action, sufficient is shown to bring defendants having no right to complain in it within the provisions of Civil Code Cal. § 355, the first instance, we are not driven to which declares that "the due incorporation of any the presumption of the grant of an easecompany claiming in good faith to be a corpora- ment to account for why they did not comtion, and doing business as such, shall not be in-plain." Hanson v. McCue, 42 Cal. 310. If quired into collaterally in any private suit, to which this finding is material, therefore, and persuch de facto corporation may be a party." haps it is not, because plaintiff's right seems to be based upon prior appropriation,-it should be made more definite. 3. The defendants not having denied that they diverted the water, evidence of diversion by other ditches above defendant's, which other ditches were later in time of diversion than both plaintiff's and defendants', was properly excluded. 4. The findings should state the quantity of water the plaintiff is entitled to have flow past the defendant's ditch in inches or gallons, and not merely by fixing the width, depth, and grade of the ditch. 66 The court found that" neither the defend In bank. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge. Brown & Daggett and Mich. Mullany, for appellants. Atwell & Bradley, M. S. Bab-ants nor their ancestors or grantors have cock, and Jarboe, Harrison & Goodfellow, for respondent. at any time prior to the construction of the ditch complained of, to-wit, the month of May, 1884, claimed or asserted any right to PATERSON, J. This is an action between the waters of Cross creek adversely to the rival appropriators to determine who has plaintiff," and that the defendants' ditch the superior right to divert water from from the time of its construction in 1876 Cross creek, a natural water-course flow- until May, 1884, "carried away no appreing through Tulare county. Plaintiff ciable quantity of water," but these findclaims that the defendants have no right to ings are not supported by the evidence. any water until its ditch has been first sup- The evidence shows without substantial plied to its full capacity, and the court so conflict that the Hyde ditch, owned by dedecided. The findings of the court are in fendants, was finished and commenced to several respects quite uncertain. It is divert water in the spring of 1876, and that found that on the 1st day of May, 1874, those who have owned and controlled it plaintiff took out and diverted through its have ever since continuously, uninterruptditch, under a claim of right, openly and edly, and under a claim of right, adverse to adversely to the whole world, water "suf- all the world, during the irrigating season ficient to fill its ditch, which was and is of each year, diverted water through the thirty feet wide on the bottom, and forty- same from Cross creek for the purposes of six feet wide on top, and four feet deep, irrigation. There is evidence tending to with a fall of one foot to the mile. And show an interference with the Hyde ditch, from the 1st day of May, 1874, so openly, but it is so slight that those who perpeaceably, notoriously, and adversely con- formed the acts of interruption may be retinued to appropriate and use the waters garded simply as trespassers, and the inof said stream, the waters so diverted and trusions not long enough to raise a preused being sufficient to fill its ditch when- sumption that those in possession of the ver there was water in the stream [Cross ditch knew of the trespass, or sufficient to creek] to fill it, and when there was not show a break in the continuity of the adsufficient water to fill the plaintiff's said verse use. As between the parties hereto ditch it took what water came down the there is no question of r.parian rights, and, creek in its natural flow." In view of the in view of the evidence as to the uninterfect that the defendants' ditches divert wa-rupted use by defendants of their ditch, it ter at points higher on the stream than is immaterial, so far as the quantity of wa Cal. Rep. 20-22 P.-42 |