or property, concerning matters or transactions which already exist and have transpired ere the judicial power is invoked to pass on them. As said by WOODBURY, J., in Merrill v. Sherburne, 1 N. H. 204: "The former [judicial tribunals] decide upon the legality of claims and conduct, and the latter [legislative tribunals] make rules upon which, in connection with the constitution, those decisions should be founded. the province of judges to determine what is the law upon existing cases. fine, the law is applied by the one and made by the other." It is The legislature makes a general rule for the regulation of conduct and the admeasurement of right; the judiciary makes a special rule regarding a state of facts which have occurred after the enactment of the general rule by the former, by applying such general rule to the state of facts. The former defines rights and wrongs by a rule laid down in advance. The latter enforces rights and redresses wrongs in cases arising on past occurrences. We have found no more accurate statement of the difference between a legislative and a judicial act than that expressed by Justice FIELD in his opinion in the Sinking Fund Cases. "The distinction," says the learned justice, "between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other provides what the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation, or of property, as the foundation on which it proceeds, such act is, to that extent, a judicial one, and not the proper exercise of legislative functions." 99 U. S. 761. The foregoing remarks are thus forcibly illustrated by reference to the cases, one (Lane v. Doe, 3 Scam. 238) decided by the supreme court of Illinois, and the other (Jones v. Perry, 10 Yerg. 59) by the supreme court of Tennessee, of which it is said: "Thus an act of the legislature of Illinois authorizing the sale of the lands of an intestate, to raise a specific sum, to pay certain parties their claims against the estate of the deceased for moneys advanced and liabilities incurred, was held unconstitutional, on the ground that it involved a judicial determination that the estate was indebted to those parties for the moneys advanced and liabilities incurred. The ascertainment of indebtedness from one party to another, and a direction for its payment, the court considered to be judicial acts which could not be performed by the legislature. 3 Scam. 238. So, also, an act of the legislature of Tennessee authorizing a guardian of infant heirs to sell certain lands of which their ancestor died seized, and directing the proceeds to be applied to the payment of the ancestor's debts, was, on similar grounds, held to be unconstitutional." 99 U. S. 761. See, also, Ex parte Shrader, 33 Cal. 279; Cooley, Const. Lim. 110-112, et seq., and cases cited in notes. Tested by the foregoing, we are of opinion that the fixing of the salary of a reporter by the judge, in advance of services rendered, to be paid to him monthly, such salary to continue until changed by the order of the judge, and to be paid where, as in the recess of the court, no services are rendered, would be an exercise of legislative power. In doing this the judge would be determining no right or obligation pertaining to person or property on facts already existing, but would be laying down a rule to be applied to a case, the facts of which must afterwards transpire. As this would be an exercise of legislative power not expressly directed or permitted by the constitution to a court or judicial officer, the act must be declared unconstitutional. The act of 1885 amending section 274, Code Civil Proc., is different from the section as it stood before amended. Under the section as it stood before it was amended, the amount to be paid the reporter was fixed on valuation of the services rendered by the court or judge after they have been rendered. The court or judge, under that section, acted on a case which had transpired before any action was taken. The difference between the two is plain and palpable. However, it is not necessary nor do we intend to hold that the latter mode is constitutional. The order made by the judge in this case, it seems to us, is not in accord with either the amended or unamended section. The order in this case did not fix the salary to be paid monthly. It fixes the compensation of Smith, the petitioner, for two days (the thirtieth and thirty-first days of March, 1885) at $9.50 per day. This is not an allowance of a monthly salary, as required by the act of 1885, and it differs from the section prior to its amendment because it is fixed with a view to be paid out of the county treasury, and not by the parties as the act stood before amendment. We find no error. Judgment affirmed. We concur: MYRICK, J.; MORRISON, C. J.; MCKEE, J.; SHARPSTEIN, J. 68 Cal. 199 RHODES v. SPENCER. (No. 8,870.) Filed December 18, 1885. MANDAMUS ORDER STAYING PROCEEDINGS TILL PAYMENT OF JURY'S And RePORTER'S FEES. On the trial of an action in equity, after special issues have been framed and submitted to the jury, and findings returned thereon in favor of the plairtiff, the superior court has power to order that the plaintiff pay the jury's fees and fees of the reporter, and that all proceedings be stayed until the making of such payments. Therefore, the superior court, having the power to make such order, will not be compelled by mandamus to proceed with the trial of the cause until the order is complied with. In bank. Application for mandamus. Ross, J. In an action in equity, to be tried in the superior court of Santa Clara county, certain special issues were framed and submitted to a jury, which returned its findings thereon, claimed by the petitioner here, who was the plaintiff in the action, to have been favorable to him. The court ordered the plaintiff to pay the fees of the jury, amounting to $140, and the fees of the reporter, amounting to $40, and further ordered that all proceedings be stayed until the mak ing of such payments. If the court had the power to make such order, it is quite obvious that it should not be compelled by mandamus to proceed with the trial of the cause until the order is complied with. Statutory authority for the action of the court in the particular mentioned is found in section 274 of the Code of Civil Procedure, and in the act approved March 1, 1872, (St. 1871-72, p. 188.) Writ denied and proceedings dismissed. We concur: MYRICK, J.; MCKEE, J.; MORRISON, C. J.; THORNTON, J. 68 Cal. 343 LITTLE v. JACKS. (No. 9,839.) Filed December 18, 1885. UNDERTAKING ON APPEAL-TIME FOR FILING. Under the statute providing that an "appeal shall be ineffectual for any purpose, unless within five days a ter service of the notice of appeal an undertaking be filed, " (Code Civil Proc. Cal. § 940,) it is not sufficient, to make the appeal effectual, that the undertaking be filed before service of the notice of appeal. In bank. Appeal from superior court, county of Monterey. S. O. Houghton, for appellant. D. M. Delmas, for respondent. Ross, J. The question on this motion is whether, under the provision of the statute which declares that "the appeal shall be ineffectual for any purpose unless, within five days after service of the notice of appeal, an undertaking be filed," etc., (section 940, Code Civil Proc.,) an appeal is effectual when the undertaking is filed before service of the notice of appeal. If the statute is to be given effect, which must be done, we do not see how the question can be answered in any other way than in the negative. The statute expressly declares the appeal to be ineffectual for any purpose unless, within five days after service of the notice of appeal, the required undertaking be filed. After service does not mean, and cannot be held to mean, before service. The undertaking relates to the notice, but without the notice there is nothing to which it can apply. We must grant the motion. Appeal dismissed. We concur: MYRICK, J.; MORRISON, C. J.; THORNTON, J.; SHARPSTEIN, J. 2 Cal. Unrep. 590 MCDOWELL v. LEVY. (No. 20,156.) Filed December 18, 1885. BIAS OF JUDGE EFFECT AS DISQUALIFICATION. Bias or prejudice on the part of a trial judge constitutes no legal incapac ity to sit on the trial of a cause. On authority of People v. Williams, 24 Cal. 33. In bank. Application for a writ of prohibition. On the trial in the court below, (one of the departments of the superior court of the city and county of San Francisco,) in an action of criminal libel against petitioner, he objected to the cause being tried by the judge then sitting, on the ground of bias and prejudice of such judge, and set out in affidavits the facts claimed to constitute such bias, and moved that the cause be postponed or transferred to another department of the same court on that ground. The motion was denied, and the petitioner then made this application. S. W. & E. B. Holladay, for petitioner. BY THE COURT. The application is denied, on the authority of People v. Williams, 24 Cal. 33. See People v. Mahoney, 18 Cal. 185; People v. Shuler, 28 Cal, 494. 68 Cal. 192 MCKINNEY v. ROBERTS. (No. 9,342.) 1. SLANDER-ALLEGATIONS OF COMPLAINT. In an action for slander, an allegation in the complaint that "on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defendant, addressing William Walker, spoke, in the presence of said William Walker and George M. Dewel, the following words, towit," is in effect a statement that, according to the information and belief of the plaintiff, the defendant did in fact speak the words set out in the complaint at the time and place and under the circumstances stated; and the allegation is sufficient. 2. SAME-IMPUTING WANT OF CHASTITY TO WOMAN. To speak of a married woman as the paramour of a man not her husband is, of itself, to impute to her a want of chastity. In bank. Appeal from superior court, county of Stanislaus. W. E. Turner, for respondent. Ross, J. It is a mistake to say that the allegation of the complaint is, in effect, that "plaintiffs are informed and believe defendants spoke certain words," etc. The allegation is: "That on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defendant, addressing William Walker, spoke in the presence of said William Walker and George M. Dewel the following words, to-wit." The effect of this is that, according to the information and belief of the plaintiff, the defendant did, in fact, speak the words set out in the complaint at the time and place and under the circumstances stated. The allegation is sufficient, although it might and should have been made more definite and certain. Section 46 of the Civil Code declares: "Slander is a false and unprivileged publication other than libel, which (1) charges any person with crime, or with having been indicted, convicted, or punished for crime; *(4) imputes to him impotence or a want of chastity; or (5) which, by natural consequence, causes actual damage.” * * It does not admit of doubt, we think, that to speak of a married woman as the paramour of a man not her husband is, of itself, to impute to her a want of chastity. Judgment reversed, and cause remanded, with directions to the court below to overrule the demurrer to the complaint, with leave to the defendant to answer. We concur: STEIN, J. MCKEE, J.; MORRISON, C. J.; MYRICK, J.; SHARP 68 Cal. 190 PEOPLE v. BRICK. (No. 20,127 1. VERDICT EVIDENCE. Filed December 18, 1885. Verdict held sustained by the evidence. 2. MURDER-INSTRUCTIONS-SUFFICIENCY OF. There is no error in an instruction that "if the jury find the defendant guilty of murder in the first degree, and they also find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a jury, in a criminal case, for murder, with that discretion, but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment." Nor is the last clause of this instruction erroneous. In bank. Appeal from superior court, county of Colusa. T. J. Hart, for appellant. The Attorney General, for respondent. Ross, J. 1. We would not be justified in disturbing the verdict on the ground that the evidence is insufficient to warrant it. 2. Appellant contends that the court below erred in instructing the jury: "If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of guilty of murder in the first degree, and leave with the law the responsibility of fixing the punishment." The words quoted are found in the concluding clause of an instruction which reads: "If the jury find the defendant guilty of murder in the first degree, and they also find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a jury, in a criminal case, for murder, with that discretion, but |