homestead; that thereafter he filed with the clerk of the superior court of the county of Santa Cruz a petition duly verified, setting forth the facts above stated, and the further fact that the homestead claim by Mrs. Card exceeds in value the sum of five thousand dollars, and praying for the appointment of appraisers to appraise the value of the property and determine whether or not the land claimed as a homestead could be divided without material injury; that due notice was given the homestead claimant of the filing of said petition and the time of hearing thereon; that on the day appointed for the hearing, the court allowed the homestead claimant five days in which to answer the petition, and refused to hear any testimony until such answer was filed. Upon these facts, and the provisions of sections 1245 to 1254 of the Civil Code, petitioner asks for a writ of mandate commanding the respondent to immediately proceed to a hearing of the petition for the appointment of appraisers.

Under the provisions of the Civil Code for the appraise ment of a homestead, no demurrer or answer to the petition is authorized. If the petition sets forth the facts required by the provisions of section 1246, and a copy thereof, with notice of the time and place of the hearing, has been served upon the homestead claimant at least two days before the hearing, it is the duty of the judge, upon proof thereof, to appoint three disinterested residents of the county to appraise the value of the homestead. We do not perceive, therefore, the object of the court in allowing time to answer the petition. In such cases, if the petition does not state the facts required by the statute, the court should refuse to entertain it; but if it does state the requisite facts, no plea should be allowed, -the court should proceed as directed by the statute. The court and counsel for the homestead claimant seem to have proceeded upon the theory that an issue of fact might be framed and tried as in an action at law. This

would lead to delays not contemplated by the statute,findings, motion for a new trial, etc. No such procedure is authorized by the Code. Of course, the homestead claimant is entitled to a hearing; that is the object of the statute in requiring a notice, but no pleadings on the part of the claimant are necessary. If there is a judg ment valid on its face, and the court finds that the execution has been levied on a homestead which appears to be of a greater value than five thousand dollars, he cannot be injured until the court acts upon the report of the appraisers. When that report is filed, a time should be fixed for the hearing, due notice thereof given to the claimant, and the questions whether the homestead exceeds in value the sum of five thousand dollars, and whether it can be divided without material injury, should be determined upon the evidence produced by the parties. These two questions are the only ones involved in the inquiry. They are the issues, and the only issues, and they are provided for by statute; no answer is necessary to raise them. They are the same in all cases under the provisions of the statute.

Treating the order of the court allowing five days to answer as a mere continuance of the hearing, however,and so it may be considered,--the writ herein prayed for should not be issued. The court was not compelled to hear the application of the petitioner immediately. The claimant was entitled to a hearing as well as the petitioner, and the court was clothed with the discretion to allow a reasonable time in which to prepare for the hearing. Five days was not an unreasonable delay. Furthermore, the time granted-the five days' time in which to answer has expired. We must presume that the court will now, unless there be reason for further delay, proceed to a hearing. The writ, therefore, should not issue.

We place our refusal to issue the writ prayed for upon the ground that the court did not abuse its discretion in

continuing the hearing for five days, and regard the order allowing an answer to be filed as of no consequence. Application for the writ denied.

MCFARLAND, J., SHARPSTEIN, J., BEATTY, C. J., WORKS, J., and THORNTON, J., concurred.

[No. 11625. Department Two.-June 13, 1889.]

THE BANK OF BRITISH NORTH AMERICA, APPELLANT, v. ISRAEL CAHN, RESPONDENT.

BANKING CORPORATION-PUBLICATION AND RECORD OF SWORN STATEMENT-DEFENSE TO ACTION BY BANK.-It is a sufficient defense to an action by a banking corporation that it has not complied with the requirement of the act of April 1, 1876, in regard to the publication and record in the recorder's office of a sworn statement as to its capital, assets, and liabilities. Those requirements were not repealed by the subsequent act creating a board of bank commissioners, not being inconsistent with the provisions of that act, and no substitute being contained therein for the local publication and record required by the act of 1876. STATUTES-REPEAL BY IMPLICATION.-A second act will operate as a repeal of a former act only to the extent of repugnancy between them, and not merely because it may repeat some provisions of the first act and omit others or add new provisions, unless it plainly appears that it was intended as a substitute for the first act. When an act expresses a repeal of former acts only so far as they are inconsistent with its provisions, such provision expresses and limits the extent of the repeal.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion.

Sidney V. Smith, for Appellant.

A statute is impliedly repealed, not only by mere repugnancy and contradiction in a later statute, but also by a subsequent statute revising the whole subject-matter. (Sedgwick on Statutory Law, 126; United States v. Barr, 4 Saw. 256; United States v. Tynen, 11 Wall. 95;

Lefevre v. Lefevre, 59 N. Y. 446; Bartlett v. King, 12 Mass. 536; 7 Am. Dec. 99; Murdock v. Memphis, 20 Wall. 590; Rogers v. Watrous, 8 Tex. 62; 58 Am. Dec. 100.)

Jarboe. Harrison & Goodfellow, for Respondent.

The two statutes can stand together, and there is no repeal by implication or substitution. (Pomeroy's Sedgwick's Construction of Statutes, 98; Matter of Yick Wo, 68 Cal. 294; Chew Heong v. United States, 112 U. S. 536; Chicago Railway v. United States, 127 U. S. 406; Wood v. United States, 16 Pet. 342, 363.)

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FOOTE, C.-The plaintiff, a banking corporation, loaned a large sum of money to another corporation, in which the defedant was a stockholder. A portion of that sum remaining unpaid, the plaintiff brought this action to recover from the defendant, as a stockholder in the corporation which had borrowed the money, his proportionate share of the indebtedness.

An answer was filed, alleging, by way of defense, that the plaintiff had not complied with the provisions of an act of the legislature of the state of California, approved April 1, 1876, entitled "An act concerning corporations and persons engaged in the business of banking." The delinquency of the plaintiff being stated to consist in its failure "to publish in a newspaper, or any newspaper, or to file in the recorder's office of the city and county of San Francisco, or in the office of any recorder, a sworn statement or any statement of the amount of capital actually paid into said corporation or into such banking business." And that at all those times the plaintiff had further failed to so publish or file for record "a sworn statement, or any statement, of the actual condition and value of its assets and liabilities, or where said assets are situated."

The plaintiff demurred to the answer as not showing facts sufficient to constitute a defense. The demurrer

was overruled, and a trial had by the court without a jury. The findings of fact are to the effect that all the allegations of the complaint and answer are true. The conclusion of law is, that defendant is entitled to judg ment in his favor. From the judgment made and entered in the premises, this appeal is taken.

The appellant contends for a reversal of the judgment, on the ground that the act of April 1, 1876, with which the plaintiff did not confessedly comply, and by section 3 of which it was debarred from the right to maintain its action, is repealed by the act creating a board of bank commissioners. (Stats. 1877-78, p. 740.)

The point made on this contention being that "when a later statute covers the whole ground of a former one, the latter repeals the former.”

In Chicago Railway Co. v. United States, 127 U. S. 409, Mr. Justice Field says: "When there are two acts or provisions of law relating to the same subject, effect is to be given to both, if that be practicable. If the two are repugnant, the latter will operate as a repeal of the former to the extent of the repugnancy. But the second act will not operate as such repeal merely because it may repeat some of the provisions of the first one and omit others, or add new provisions. In such cases the later act will operate as a repeal only where it plainly appears that it was intended as a substitute for the first act. As Mr. Justice Story says, it may be merely affirmative, or cumulative, or auxiliary.' (Wood v. United States, 16 Pet. 342-363.)"

The legislature, in passing the later act, evidently had the question of repeal under consideration, and gave expression to the extent of its intention in that regard in section 21 of the act, which shows the repeal of the former acts only to be "in so far as they are inconsis tent" with the provisions of the later act.

The provision for publication in each particular county, provided for in the act of 1876, is not inconsistent with

LXXIX. CAL.-30