implication is involved, but a question of enforcing the will of the legislature last expressed on the very same subject.

The view expressed by one of the members of this court at the oral presentation of this cause, that the Sidewalk Act should, if possible, be considered as an alternative method for constructing sidewalks, is fully met by the application of the rule "expressio unius“, etc., to section 19 of the act. By this section the legislature expressly provides that the act may at the election of the council be used in the construction of curbing also. The absence of any such provision as to sidewalks clearly indicates that a distinction is drawn in this respect between the construction of curbing and the construction of sidewalks.

We do not think the other acts mentioned operate to repeal the Sidewalk Act, or to restore to the list of improvements authorized to be made under the Vrooman Act the street work which is included in the term "construction of sidewalks". The application of the rule that repeals by implication are not favored, invoked by the petitioner with respect to the Sidewalk Act, makes the more strongly against its position here, in that it relies upon the repeal of a special act by the amendment of a general one. As said by Judge Cooley: The repugnancy between two statutes should be very clear to warrant a court holding that the later in time repeals the other when it does not in terms purport to do so. This rule has peculiar force in case of laws of special application which are never to be deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect. (Const. Lims., 7th Ed., 216.) Clearly, in this connection it is proper to consider the Vrooman Act as a general law relating to street work and the Sidewalk Act as a special act providing a special method of construction for only such particular street work as is connected with sidewalks.

This principle was applied by the supreme court in People v. Pacific Imp. Co., 130 Cal. 442. While the facts of that case were such that it may be said the rule adopted supported the position here taken only so far as the question of the repeal of the Sidewalk Act is to be considered, yet the reasoning upon which the decision was based also sustains our view that the amendment of section 2 by the act of April 21st did not operate to restore sidewalk construction to the improvements authorized to be made under the Vrooman Act. Here, as in the case cited, it is apparent that in so far as the amendment to the general law is concerned the fact that it in any manner mentions the subject-matter of the special act is due to a matter of copying. In the case at bar this may be attributed either to inadvertence or to an oversight on the part of the judiciary committee to which the amendment was referred, who failed to eliminate the word "sidewalks" from the section and thus make it conform to the other legislation on the same subject at the same session of the legislature.

The evident and apparently sole purpose of the amendment was to strike from the section the clause relating to change of grades. which had been elsewhere and otherwise provided for. Compliance with the constitutional mandate that the amended section must be re-enacted and published at length as amended (Const., art. IV, sec.

24) made it necessary to restate the entire section, leaving out only the part relating to the change of grade, and, as the repeal of the Vrooman Act in relation to sidewalks was of such a character that the phraseology of the act remained unchanged, it would be a strained construction of the section to say that by copying the section as it stood the legislature intended to restore sidewalks to the operation of the act merely because this word was not stricken out. The subject of sidewalks was not in any way germane to the purpose of the amendment. Certainly the theory of repeal by inadvertence is not to be considered if by the application of any rule of construction another result may be arrived at. We think the intent with which the act of April 21st was passed is too apparent to require such a construction. The rule declared by section 325 of the Political Code, that where a section or part of one is re-enacted for the purpose of amending it the unamended parts deemed not to have been changed but to retain the status it occupied prior to the amendment, also makes for the same interpretation.

We do not lay much stress upon the act of March 18th adding a new section to the Vrooman Act. It appears to be conceded that the act is unconstitutional and that being so it cannot be considered as affecting the law as it stood prior to its enactment (Ex parte Sohncke, 148 Cal. 262; Sutherland, Stat. Cons.. 2nd ed.. vol. I, p. 458), but petitioner contends, nevertheless, that it indicates that at the time of its passage and adoption the legislature still thought the Vrooman Act included the construction of sidewalks in its provisions. Treated as evidence of this, it is not entitled to much weight. If constitutional its enactment would not be entirely idle, as it may be applied to the matter of curbing which it includes as well as sidewalks.

We are of opinion that respondent was justified in refusing to certify the ordinance, and, therefore, the writ is denied.

Civil No. 541. Third Appellate District. September 11, 1909. MARIA V. BALLARD, Plaintiff and Appellant, v. LOUIS TITUS, CLAREMONT HOTEL COMPANY and CLAREMONT LAND COMPANY, Defendants and Respondents.

ACTION FOR RIGHT OF WAY-SELECTION UNDER RESERVATION CLAUSE OF DEED-PLEADING-ANSWER-MATTERS IN DEFENSE ABSENCE OF CROSS-COMPLAINT PRAYER FOR AWARD OF ALLEGED EQUALLY FEASIBLE ROUTE JUDGMENT FOR LATTER WITHOUT SUPPORT.--An answer in an action to establish a right of way selected by the plaintiff over the land of the defendant under a "roving" reservation in a deed, which concludes with a prayer that the plaintiff be awarded the right of way alleged in such answer instead of the selected way, will not support a judgment establishing such alleged way upon a finding of its equal feasibility, where only matters in defense of such action are pleaded therein.

ID. PLEADING CROSS-COMPLAINT - ANSWER MATTERS OF DEFENSE PRAYER FOR AFFIRMATIVE RELIEF EFFECT OF.-Matters which are proper as a defense will not be turned into a cross-complaint merely by a prayer for affirmative relief.

ID.-ID.-ID.-DESIGNATION

OF CROSS-COMPLAINT ESSENTIAL-A defendant must in some unmistakable manner so frame his answer as that the plaintiff and the court may recognize it at once as a

cross-complaint, and not as a defense, whenever he seeks affirmative

relief.

ID.-ID.-ID.ID.-STATEMENT OF FACTS FOR AFFIRMATIVE RELIEF INSUFFICIENT.-It is not enough that the defendant state facts, which, if true, would constitute a cause of action against the plain. tiff, but must also state his intention to regard such facts as constituting an affirmative cause of action.

Appeal from the Superior Court of Alameda County-John Ellsworth, Judge.

For Appellant-Hewlett, Bancroft & Ballentine.

For Respondents-Titus, Wright & Creed.

ON REHEARING.

Respondents petitioned for a rehearing of the case upon two questions involved in the appeal, namely, the question of gates at the termini of the right of way and the question of the necessity of a cross-complaint to support the judgment. In making the order opening the case for re-argument the court said: “A rehearing is granted upon all the propositions involved in the cause." In her reply brief on rehearing plaintiff asks for a revision of the decision which "confines the plaintiff to a strip of land', when plaintiff reserved a right of way or passage 30 feet wide, and where there was nothing to indicate that plaintiff was limited to the use of part of it only"; also that there should be a trial de novo upon the finding that the route proposed by defendants is equally accessible and feasible with that proposed by plaintiff and that the evidence does not warrant the rejection of the selection made by plaintiff.

Respondents have filed a written waiver stating that the judg ment may be modified by eliminating that portion which gives to defendant the right to erect gates and that plaintiff "be awarded an open way unobstructed by gates." That feature of the case need not be further noticed.

Frankly, it was hoped by the court that, on rehearing, a way might be found to affirm the judgment, in view of the waiver of respondents, without violating established rules of procedure and consequent invasion of plaintiff's rights. But we find ourselves unable to do so. We can discover no escape from the requirement that the defendant must in some unmistakable manner so frame his answer as that the plaintiff and the court may recognize it at once as a cross-complaint, and not as a defense. "It is not enough", says Professor Pomeroy, "that the defendant state facts, which, if true, would constitute a cause of action against the plaintiff; he must also state his intention to regard those facts as constituting the affirmative cause of action, and not to regard them as a defense. This intention must be indicated either by naming the matter thus pleaded ‘a counter-claim- that is, by declaring that it is pleaded as such—or by concluding it with a prayer for a judgment granting the desired relief. The better practice is--and it should be universal-to use both of these characteristic marks; to commence the particular allegations with the formal statement that they are pleaded as a counter-claim, and to end them with the usual prayer for relief as in a complaint or petition. This practical rule

of pleading is fully sustained by the decided cases. (Citing a large number.) There is one controlling reason why the defendant should so designate, in a certain and obvious manner, the special character of the pleading. In all the states but one or two, the plaintiff must reply to a counter-claim, or its averinents of fact are admitted to be true. He ought not to be subjected to this penalty unless he is told in the most express terms that the pleading is a counter-claim." (Pomeroy on Code Remedies. 4th ed., see. 748; earlier ed., sec. 624.) Section 442 of the Code of Civil Procedure reads: "Whenever the defendant seeks affirmative relief against any party to the action, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which it relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint.

It was held in Herold v. Smith, 34 Cal. 122. that under section 50 of the Practice Act, when an answer contains a cross-complaint it must be replied to so far as the cross-complaint is concerned, or the matters therein alleged will be taken as confessed. Held, in Murphy v. Murphy, 141 Cal. 471, that plaintiff having failed to answer the facts set up in the answer by way of cross-complaint, no proof in their support was required.

It was said in Shain v. Belvin, 79 Cal. 262: "If a defendant has any cause of cross-complaint, he should plead it as such. Matters which are proper as a defense will not be turned into a counterclaim or cross-complaint merely by a prayer for affirmative relief. (Doyle v. Franklin, 40 Cal. 110; Brannan v. Paty, 58 Cal. 331; Carpenter v. Hewel, 67 Cal. 590.) And if a party calls his pleading a counter-claim, he will not afterwards be allowed to maintain that it was really a cross-complaint, and required an answer. (McAbee v. Randall, 41 Cal. 136.) Upon the same principle a party will not be allowed to gain any advantage by giving his pleading two inconsistent characters. If matter is pleaded as a defense, it is denied by force of the statute; if it constitutes a cross-complaint, and is pleaded as such, it requires an answer from the plaintiff. It is inconsistent to say that the same matter does and does not require to be answered. The pleader should take one ground or the other, so that his adversary may know how to proceed. If he, as here, 'for further and separate answer and defense to the "omplaint, avers by way of cross-complaint', etc., the rule that a pleading must be construed against the pleader applies, and as against him it may be treated merely as a defense. The words by way of crosscomplaint' may be treated as surplusage. (Meeker v. Dalton, 75 Cal. 154.)" This view of the rule of pleading was followed in Goldman v. Bashore, 80 Cal. 146. There the language used was: "And for a further and separate answer, the defendant files her cross-complaint, and alleges." The same rule was adhered to in Cohn v. Kelly, 132 Cal. 468, and Shain v. Belvin and other cases cited in support thereof.

In the present case the answer did not purport to be a cross

complaint, was not so treated at the trial and cannot now be so regarded. The facts were put forward as means of defeating the route prayed for in the complaint. Defendants' prayer is "that if this court should decide that said plaintiff is entitled to any right of way over the said lands, . . this court decree that she is entitled to a right of way running directly from the old Ballard Bridge to the lands of plaintiff, and that said plaintiff is not entitled to the right of way as described in said Exhibit A," (plaintiff's exhibit showing the right of way asked by her). This was not a prayer for definite affirmative relief, and even if it can be regarded as praying for affirmative relief it cannot have the effect to turn the answer into a cross-complaint. (Shain v. Belvin, supra.)

It is well settled that a cross-complaint should contain facts sufficient in themselves to constitute a cause of action or as ground for the relief prayed for. The answer here contains practically no averments except in the form of denials and certain admissions of fact. There is not even a pretended statement of facts such as would in themselves support a judgment in defendants' favor other than to defeat plaintiff's action. Upon this and other points also we adopt the former opinion and adhere to the decision heretofore given.

The judgment and order are reversed with leave to defendants to amend their answer as they may be advised.

We concur:
HART, J.
BURNETT, J.

CHIPMAN, P. J.

Civil No. 659. Second Appellate District. September 11, 1909. CHARLES LA DOW, Plaintiff and Respondent, V. NATIONAL BUILDING & PAVING BRICK COMPANY (a Corporation), Defendant and Appellant.

ATTACHMENT-UNDERTAKING-EXCEPTION

TO SURETIES-FAILURE

TO JUSTIFY-PRESENTATION OF NEW SURETY-FAILURE TO QUESTION SUFFICIENCY-WAIVER.-Where the record on appeal from an order denying a motion to vacate an attachment on the ground of the failure of the sureties on the undertaking to appear and justify, shows that at the time and place fixed for such justification a new undertaking was presented, and that the defendant did not question the sufficiency of such new surety and was not denied the right to make such examination, the right to other than the prima facie Justification made by such presentation is waived.

ID.-ID.-ID.-ID.—ID.—ID.-EFFECT OF PRESENTATION OF NEW SURETY.-The presentation of a new undertaking at the time fixed for the justification of sureties on an original attachment bond, is in effect the offering of a new surety as to whom the defendant is entitled to examine as to its sufficiency.

Appeal from the Superior Court of Los Angeles County-N. P. Conrey, Judge.

For Appellant-Woodruff & McClure.

For Respondent-Walter, Pratt & Ball; Stephen L. Sullivan.

Defendant appeals from an order of court denying its motion to vacate and set aside a writ of attachment.