viously paid on the lease. The fact that Barth promptly refused to pay it back when it was then and there demanded by Jones, indicates strongly that a repayment of this money was not contemplated by the defendants, in the announcement that they had agreed to cancel the lease.

The foregoing circumstances, coupled with the subsequent conduct of the parties, as detailed by the witnesses of the plaintiffs, show a default on the part of Barth & Bro., to comply with the terms of the lease on their part. They show a compliance and a demand of possession by the plaintiffs, and a subsequent abandonment, but not cancellation, of the lease by the mutual consent of both parties. They likewise show that no agreement was reached concerning the money advanced by the plaintiffs.

There was no discharge from all the terms and conditious of the contract as in the case of Winton v. Spring, 18 Cal., 452, cited by defendant's counsel. On the contrary, the legal effect of the plaintiff's testimony is that the negotiations for cancellation were abruptly terminated by the demand and refusal to pay the two hundred and forty dollars.

Upon this testimony, there was a good cause of action against the defendants, for which reason the motion for nonsuit was properly denied. Respecting the other errors assigned, we discover no sufficient ground for reversing the judgment.

If the case was to be considered on the testimony of the defendants and their witnesses only, there would be no cause of action; but their testimony being in direct conflict with that of the plaintiffs', it was the province of the jury to determine to whom credit should be given.

The jury determined the conflict in favor of the plaintiffs below, and returned a verdict in their favor. We cannot say that this verdict is clearly opposed to the weight of the evidence. It was found under proper instructions as to the law governing the case, and this court would not be warranted, under the circumstances, in disturbing it. The judgment is affirmed. Judgment affirmed.

PEOPLE EX REL. BARNES ET AL. v. DISTRICT COURT, ETC., et al.

Filed October 1, 1884.

PETITION FOR WRIT OF PROHIBITION DENIED, for the reason that the relief asked had already been granted on appeal.

PETITION for a writ of prohibition. The opinion states the facts. L. M. Hulburd, for the petitioners.

Charles H. Wenzell, for the respondents.

STONE, J. This is an original application to this court, by petition, for a writ of prohibition, to restrain the further action of the

district court, of the fourth judicial district, and others, from further proceeding in the matter of a temporary injunction, issued by the judge of said court, and to prevent the appointment of a receiver by said court, in respect to certain property and matters in litigation, in a certain suit, then pending in the court, entitled R. L. De Lay, and others, appellants, against The Leadville Improvement Company, appellee, numbered 1,091 on the docket of this court, and to restrain all further proceedings, under and by virtue of the order of the judge of the district court aforesaid, in granting the said temporary writ of injunction, etc.

An inspection of the records of this court discloses the fact that, subsequent to the filing of the petition for the said writ of prohibition, and the answer thereto, to wit, on the fourth day of December, 1883, an order was entered in this court in the words following, to wit:

"R. L. De Lay et al., appellants, v. The Leadville Improvement Company, appellee.

"Appeal from district court of Lake county: At this day, this cause coming on to be heard upon the motion of said appellee and written stipulation of parties filed herein, it is ordered by the court, in pursuance of said stipulation, that the injunction heretofore issued in this cause be and the same is hereby dissolved without prejudice; and that the judgment of said district court be and the same is hereby affirmed at the cost of said appellants. It is further ordered by the court that both parties have leave to withdraw from the files the abstract of title and other title papers heretofore filed herein."

The judgment of the district court above referred to as affirmed by the foregoing order, is the judgment of the district court of Lake county, from which the appeal was taken to this court, but the injunction in question was issued by the judge of the fourth judicial district upon an application therefor by reason that the judge of the Lake district court who was presiding at the time of the making of the application for injunction had previously been of counsel in the case, and therefore said application was made to the judge of the fourth district, who thereafter allowed the temporary writ to go, and the petition to this court for the writ of prohibition was based upon the ground of want of jurisdiction in the district court or judge thereof to interfere in the case while the same was pending on appeal in the supreme court.

From this state of facts it is obvious that the order of this court dissolving the injunction, and determining the principal case by affirming the judgment therein of the Lake county court, from which the case was appealed to this court, has also accomplished all that was sought by the petition in the case now before us, and the said petition will therefore be ordered dismissed at the cost of the relators.

SUPREME COURT OF CALIFORNIA.

No. 9.375.

LUKES v. LOGAN, SUPERIOR Judge.

Department Two. Filed October 21, 1884.

PAYMENT OF JURY FEES-SETTLEMENT OF BILL OF EXCEPTIONS.-After a judgment of non-suit, in a civil action tried by a jury, the court may, by virtue of section 17 of the act of March 28, 1868, refuse to settle the plaintiff's bill of exceptions, until the plaintiff has paid the jury fees. The settlement of a bill of exceptions is a proceeding in the action within the meaning of such section.

APPLICATION for a writ of manda mus. The opinion states the facts.
Tyler & Tyler for the petitioner,
J. M. Lesser for the respondent.

THE COURT. The return shows that a jury was duly impaneled and sworn to try the case of Lukes v. Bernheim, et al., and that, after the plaintiff had introduced evidence and rested, the defendants moved for a non-suit, which was granted; and the jury was discharged by the court, which made an order that the fees of the jury be paid by the plaintiff. The plaintiff refused to comply with that order, and the court thereupon ordered that no further proceedings be allowed in the action until said fees were paid. The plaintiff prepared and presented to the respondent for settlement a bill of exceptions, which respondent refused to settle, on the ground that plaintiff had not paid said jury fees.

Section 17 of an act entitled "an act to regulate fees of office,' approved March 28, 1868 (Stats., 1867-8, p. 436), provides, "If, in any trial, in a civil case, the jury be for any cause discharged without finding a verdict, the fees of the jury shall be paid by the plaintiff * *and until they are paid no further proceedings shall be allowed in the case."

If the settlement of a bill of exceptions was a proceeding in the action, respondent was clearly justified in refusing to act. We do not doubt that the settlement of a bill of exceptions, is a proceeding in an action, within the meaning of the statute.

Writ dismissed.

No. 7,666.

HARNEY V. MCLERAN ET AL.

Department Two. Filed October 21, 1884.

STREET ASSESSMENT-DENIAL OF OWNERSHIP -NON-SUIT-DEMURRER.-In an action to enforce a street assessment, if the answer denies the allegations of the complaint as to the defendants' ownership of the property assessed, and the plaintiff introduces no evidence in support thereof, a non-suit should be granted. A denial of such allegation, on information and belief, if not sufficiently certain, should be objected to by demurrer.

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

J. M. Wood, for the appellant.

William Leviston, for the respondents.

THE COURT. There is no evidence to support the allegation of the complaint that the defendants, McLeran and Porter, were owners of the premises assessed for street work, and if that allegation was denied in their answer, the motion for a non-suit, as to them, was properly granted. The denial that McLeran was the owner of the premises or any part thereof is explicit. The ownership of Porter is not positively denied, but while admitting that he claims to be the owner of an interest in the premises, the defendants allege that they have not any information or belief on the subject sufficient to enable them to answer the allegation of his ownership and on that ground, solely, deny it.

No motion was made to have this matter stricken out of the answer. But the appellant insists that the decision of the court on the motion for a non-suit must be viewed as it would be if no attempt had been made to deny the ownership of Porter.

None of the cases cited go to that length. Harney v. Corcoran, 60 Cal., 318, decides that if objection had been made to the filing of an amended answer with this clause in it, the court might, in its discretion, have sustained the objection.

The denial of the ownership of Porter is not irrelevent. If not sufficiently certain, it might have been demurred to. And we think this was the plaintiff's proper and only remedy in this case.

Where a plaintiff is nonsuited findings are not required: Reynolds v. Brumagim, 54 Cal., 254. Judgment and order affirmed.

No. 8,224.

NICOLL V. NICOLL.

Department Two. Filed October 21, 1884.

CHANGE OF VENUE-TIME FOR FILING AFFIDAVIT OF MERITS AND DEMAND. -In an applica tion for a change of venue the affidavit of merits and demand that the trial be had in the proper manner, filed by the defendant before he answers or demurs, are of no avail. Such affidavit and demand must be filed when the defendant appears and answers or demurs. THE SAME AFFIDAVIT OF MERITS MADE BY ATTORNEY.-Such affi lavit may be male by the attorney for the defendant if it states a sufficient reason for the defendant's not making it. APPEAL from an order of the superior court granting the defendant a change of the place of trial. The opinion states the facts.

Eyre & Frank, for the appellant.

J. W. Freeman, and Flournoy & Mhoon, for the respondent.

THE COURT. The affidavit of merits and demand that the trial be had in the proper county, which were filed before defendant answered or demurred, were wholly inconsequential. To be of

any avail, such affidavit and demand must be filed when the defendant appears and answers or demurs: C. C. P., 396.

In this case, we can only consider the order made on the motion which was based upon the affidavit and demand filed at the time the defendant appeared and demurred. And if the affidavit of merits is sufficient, the order must be affirmed. The affidavit was made by one of defendant's attorneys.

In Johnson v. Lynch, 15 How. Pr., 199, Bacon, J., after reviewing cases decided before and since the adoption of the code, said: "In view of these cases, I think it must be conceded that the affidavit of the attorney of a party will be sufficient where it swears to merits, and shows an adequate excuse for its not being made by the party; absence beyond seas or out of the state will usually be deemed sufficient." An examination of the cases has brought us to the same conclusion. Bailey v. Taaffe, 29 Cal., 422, does not hold the contrary. In that case the affidavit of the attorney was held to be insufficient in several respects, one of which was that no reason was given why the defendant himself did not make it. That, of itself, was sufficient objection.

In this case, the affidavit states a sufficient reason for defendant's not making it. The attorney who made it bases his belief that that the defendant has a good and substantial defense to the action upon the merits, on a statement of the case in writing made by defendant to said attorney and on "the affidavit of the defendant filed in this cause." Under the New York rule it would have been sufficient on that point to have said, "from a statement of the case in this action, made to deponent by defendant, deponent believes,

etc.

On the whole, we think the affidavit of merits sufficient.
Order affirmed.

No. 9,115.

IN RE LASWELL, IN INSOLVENCY.

JUDGMENT AFFIRMED.

Department Two. Filed October 21, 1884.

APPEAL from a judgment of the superior court for San Joaquin county.

George E. McStay for the appellant.

Joshua B. Webster for the respondent.

THE COURT. We have not been aided by any brief or points and authorities on behalf of appellant. We see no error in the judgment appealed from; the judgment is therefore affirmed.