Ross, J. It is thoroughly and well settled that the relief awarded a plaintiff must be consistent with the case made by his complaint. The complaint in the present instance is a bill in equity to reopen a settlement and sale between partners, and to obtain an accounting of the partnership affairs, on the ground of fraud alleged to have been practiced by the defendant. On the trial in the court below, no accounting of the affairs of the partnership between plaintiffs and defendant was taken, but certain evidence was introduced, from which the court found these facts: That in April, 1877, plaintiffs and defendant entered into a copartnership, for the purpose of manufacturing and vending brick in Alameda county, of this state; that defendant became the managing partner of the firm in Oakland, where the principal place of vending the brick was carried on, plaintiffs having more immediate charge of manufacturing the brick; that books of account were kept at Oakland by the son of defendant, purporting to contain all of the business transactions of the firm in Oakland, to which books plaintiff Black had access at all times, and which books were examined from time to time from December, 1877, to the time next hereinafter mentioned, by an expert appointed by Black and paid by the firm; that on the thirtieth day of October, 1878, there stood upon said books, among other things, accounts against certain persons, aggregating eight hundred and thirty-one dollars and fifty-two cents; that on said thirtieth day of October, defendant sold his interest in the firm and its assets to the plaintiff Black for the sum of nine thousand one hundred and twenty-seven dollars and one cent, plaintiff Merrill consenting thereto, and agreeing with Black, as a part of the consideration of the sale, and of the retirement of the defendant from the firm, to assume and pay the debts due from the firm as the same appeared upon the books; that Black paid defendant the sum of nine thousand one hundred and twenty-seven dollars and one cent, defendant retired from the firm, and plaintiffs afterwards paid its debts; that the aforesaid purchase of defendant's interest was made "upon the faith and belief that said books of account exhibited the true state and condition of the business transacted by him in behalf of the firm, and especially a true statement of the balance due from the various debtors of said firm, and a true statement of the various persons indebted to said firm;" that the accounts referred to as aggregating eight hundred and thirty-one dollars and fiftytwo cents had, previously to the aforesaid sale, been paid by the persons against whom they stood, and the money received by the defendant, and by him appropriated to his own use; and for this sum the court below gave the plaintiffs judgment, with costs.

The difficulty in the way of affirming the judgment is that it is not warranted by the complaint. That, as was stated at the outset, is a bill in equity to reopen a settlement and sale made between partners, and to obtain an accounting of the partnership affairs, on the ground of fraud alleged to have been practiced by the defendant. The court did not set aside the sale and take an accounting, but in rendering its judgment evidently proceeded upon the theory either of a warranty on the part of the defendant of the accounts referred to as aggregating eight hundred and thirty-one dollars and fifty-one cents, or else considered that the action might be treated as one for deceit. But it was not for a breach of a warranty or for damages for deceit that plaintiffs sued. A party can not allege one cause of action and recover upon another.

Judgment and order reversed, and cause remanded for a new trial.
MCKEE and MCKINSTRY, JJ., concurred.

No. 8,123.

McCor v. BYRD ET ALS.

Department One. Filed February 28, 1884.

THE AFFIDAVIT OF AN APPLICANT FOR THE PURCHASE OF STATE LANDS must set out the facts required by the statute to be stated therein. An affidavit which fails to state whether there are or are not settlers on the land which is sought to be purchased is insufficient.

MATTERS WHICH THE STATUTE REQUIRES TO BE STATED IN SUCH AFFIDAVIT can not be held immaterial.

APPEAL from a judgment of the superior court for Tulare county, entered in favor of the defendants. This action was brought upon an alleged contest originating in the state land office, touching the rights of the parties to purchase a certain tract of swamp and overflowed land in Tulare county. It appears from the complaint, that from the first of January, 1873, until the first of January, 1874, the defendant Byrd was the duly elected, qualified, and acting county treasurer of Tulare county; that on the third day of January, 1873, he made and filed in the office of the county surveyor of Tulare county his affidavit and application to purchase the land in question as swamp and overflowed land; that thereafter the county surveyor made a survey of the land for Byrd, under and in pursuance of his (Byrd's) said affidavit and application; that after the land was surveyed by the county surveyor, Byrd's affidavit and application, together with the survey, were forwarded to and filed in the office of the surveyor general, and thereupon the application and survey were approved by the surveyor general, and on the eighth day of April, 1873, the register issued to Byrd a certificate of purchase for the land, which said certificate was in the form prescribed by law. On the thirteenth day of November, 1875, one M. Hart, who is made a party defendant in this case, filed in the office of the surveyor general an application to purchase the land. On the fourth day of August, 1881, the plaintiff procured the county surveyor of Tulare county to survey the land, and on the tenth day of August, 1881, he made an affidavit and application to purchase the land, and on the thirteenth day of August, 1881, his affidavit and application, with a certificate of the survey, were filed in the office of the surveyor general. The surveyor general refused to approve the application of plaintiff to purchase the land, for the reason that a certificate of purchase for said land had been issued to defendant Byrd. Thereupon plaintiff filed in the office of the register a protest to the issuance of any further evidence of title to said defendant Byrd, on the ground that Byrd was the county treasurer of Tulare county when he applied to purchase the land, and at the time the certificate of purchase was issued to him. The defendant Byrd filed a demurrer to the complaint, which was sustained. Plaintiff declined to amend, and final judgment was entered in Byrd's favor, for costs, from which plaintiff prosecutes this appeal. The further facts appear in the opinion.

W. H. H. Hart, McNamara, and Atwell, for the appellant.
Brown & Daggett, Edwards, and Dubrutz, for the respondent.

Ross, J. It is well settled that an applicant seeking to purchase land from the state must set out in his affidavit the facts required by the statute to be stated therein: Botsford v. Howell, 52 Cal. 158; Hildebrand v. Stewart, 41 Id. 387; Woods v. Sawtelle, 46 Id. 389. The stat

ute under which the plaintiff's application is made, political code, sec. 3443, requires the affiant to state, among other things, "that he knows the land applied for and the exterior bounds thereof, and knows of his own knowledge that there are no settlers thereon; or, if there are, that the land has been segregated more than six months by authority of the United States." From the affidavit of the plaintiff it does not appear whether there are or are not settlers on the land which he seeks to purchase. The courts can not hold immaterial matters which the statute declares must be stated.

Judgment affirmed.

MCKINSTRY and MCKEE, JJ., concurred.

No. 9,151.

MONTGOMERY V. MERRILL ET AL.

Department One. Filed February 28, 1884.

ORDER SETTLING A RECEIVER'S ACCOUNT WILL BE AFFIRMED when no error appears. OBJECTIONS AND EXCEPTIONS TO THE ALLOWANCE OF A VERIFIED ACCOUNT of a receiver appointed in an action for the foreclosure of a mortgage need not be verified.

APPEAL from an order of the superior court for Colusa county settling the verified account of a receiver appointed in an action for the foreclosure of a mortgage. After such account had been presented for settlement, the defendant filed written objections and exceptions to certain items thereof. Such objections and exceptions were not verified. On the hearing the receiver objected to the court's considering them on the ground that they were unverified. The objection was overruled, testimony heard, and certain items of the account reduced. The receiver appealed.

Albery and Hurlburt, for the appellant.

John T. Harrington, for the respondent.

By the COURT. This is an appeal by the receiver from the order of the court below settling his accounts. We have examined the rulings as to the items of the account to which our attention is called, and find no error in them. It would serve no useful purpose to go over the items in detail.

Order affirmed,

No. 9,112.

PEOPLE ex rel. HARRIS v. BLAKE ET AL.

In Bank. Filed February 28, 1884.

DEDICATION OF STREET-FINDINGS.-In an action to obtain a decree adjudging certain premises to be a public street, a finding that on a certain day such premises were dedicated by the owners as a public street is sufficient, without finding who such owners were, when it appears that neither the defendants nor their grantors have or had any interest in the premises or any title thereto.

A FINDING THAT THE DEFENDANTS have and had no right or title to the land in controversy reviewed, and held supported by the evidence.

APPEAL from a judgment of the superior court for Alameda county,

entered in favor of the plaintiff, and from an order denying the defendants a new trial. This was an action to obtain a decree adjudging certain premises in the city of Oakland to be a public street, that the defendants be directed to remove certain buildings and obstructions therefrom, and be enjoined from erecting any building or obstructions thereon. The further facts appear in the opinion, and in the opinion rendered on a former appeal, reported in 60 Cal. 497.

Tutile & Tuttle, and Jarboe & Harrison, for the appellant.

George E. Whitney, for the respondent.

MYRICK, J. The court below found that the land in controversy constitutes a portion of a public street, which had been wrongfully and unlawfully obstructed by the defendants, and that the defendants had and have no right or title thereto. In arriving at the conclusion that the land was a portion of a street, the court found that the same had been dedicated as a public street, by the owners, and had been, with the permission of the owners, used by the public as a public street and highway from the beginning of the year 1853 to the end of the year 1859. The defendants object to the sufficiency of the findings, in that the court did not find who were the owners who thus made the dedication. If the defendants or their grautors have and had no interest in the premises, and no title thereto, it is an immaterial fact to them who were the

owners.

The finding that the defendants had and have no right or title to the land is sustained by evidence, viz.: the evidence of surveyors tending to show that the quantity of land specified in the subdivisions of tract D, as per map of the subdivisions, is contained in the tract, placing the southern line of the tract eighty feet north of the northern tier of blocks as delineated on the Kellersberger map; there is evidence tending to show that from the fence built along the southern line of subdivision No. 9 to the northern line of the so-called Fourteenth street, the distance is found as delineated on the map of tract D; there is evidence tending to show that the persons who caused the Kellersberger map and survey to be made caused a street of the width of eighty feet to be laid out, surveyed, and staked, over and upon the premises in controversy; there is evidence tending to show that the northern tier of blocks, as delineated on the Kellersberger map, does not reach within eighty feet of the southern line of tract D, and if that be true, the partition deed between the original owners did not include the premises, and they were not included in the deed from J. K. Irving to Goggin of subdivision No. 1 of tract D, and therefore not included in any deed conveying or purporting to convey the title of the original owners. The Kellersberger map delineates blocks and streets from the water front to the north line of the northern tier of blocks, giving the distance as three thousand eight hundred and fifteen feet; the partition map gives the westerly line of the space marked thereon" Oakland" as sixty-three chains-i. e., four thousand one hundred and fifty-eight feet; this westerly line is considerably less than the distance, as shown on the map, from the water front to the northerly line of the space marked "Oakland"-thus showing (at least sufficiently certain to sustain the finding) that the Kellersberger map did not embrace all the land between the water front and the tract D as partitioned to J. K. Irving.

In this view of the case the other matters assigned as error become im

material. This case was here on a former appeal, at which time a new trial was granted: 60 Cal. 497. In the consideration of that appeal, it was assumed that the north line of the blocks as delineated on the Kellersberger map corresponded with the south line of tract D; the discrepancy now apparent was not considered. This is mentioned to explain what would otherwise appear to be an inconsistency between the facts appearing on that appeal and on this. In the partition map, "Oakland" is delineated as lying immediately south of tract D; and probably this fact led to the supposition that "Oakland" of the partition map corresponded with the Kellersberger map.

The judgment and order are affirmed.

THORNTON and SHARPSTEIN, JJ., concurred.
MORRISON, C. J., concurred in the judgment.

No. 9,175.

OHLEYER, Assignee, etc., v. BUNCE.

Department Two. Filed February 28, 1884.

FINDINGS SUFFICIENCY OF.-In an action to set aside a sale on the ground of fraud, where the court finds enough to avoid the sale, it is unnecessary to find more, although everything alleged in regard to such transfer is not found on.

JURISDICTION IN A PROCEEDING OF INVOLUNTARY INSOLVENCY is acquired by the service of a copy of the petition of the creditors and the order of the court on the debtor. In such case no notice to creditors is required to be published.

IN SUCH PROCEEDING, WHEN IT DOES NOT APPEAR FROM THE RECORD Whether or not the debts of the petitioning creditors were created after the act of 1880 took effect, the appellate court will presume that they were, in support of a finding that the order appointing an assignee was duly made and given.

APPEAL from a judgment of the superior court for Sutter county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. This was an action by the assignee of one Marcuse, an involuntary insolvent, to recover a stock of goods or its value, the sale and transfer of which by the insolvent to the defendant was alleged to be fraudulent and void, as having been made with intent to prefer the defendant, as a creditor of the insolvent, within the provisions of section 55 of the insolvent act of 1880. The further facts appear in the

opinion.

J. H. Craddock and I. S. Belcher, for the appellant.

Stabler & Bayne, for the respondent.

SHARPSTEIN, J. The court found, among other things, that at the date of said transfer said Marcuse was insolvent, and in contemplation of insolvency, and to prevent his property from being distributed ratably among his creditors, lie made said sale and transfer of said goods, wares, and merchandise; that said sale and transfer were not made in the usual and ordinary course of business of said Marcuse, and for that reason— there being no evidence sufficient to overcome the legal presumption raised by that fact-the defendant had reasonable cause to believe that said Marcuse was insolvent, and that said sale and transfer were made with a view to prevent the said property from being ratably distributed among the creditors of said Marcuse.

The court did not find everything alleged in regard to said transfer,