if such proceedings were countenanced." (Keller v. Berry, 6 P. C. L. J. 864.)

The finding that the plaintiffs have been seised in fee and the owners of the premises since the sixth day of April, 1870 the action having been brought in 1873 — is a sufficient finding on the issues of the statute of limitations. (C. C. P. § 321; 8. F. v. Fulde, 37 Cal. 349.)

It will be noticed that the answer only pleads the provisions of Sections 318 and 319 of the Code of Civil Procedure, which in no way refer to any possession by the defendants; and in the absence of any allegation on that point, it was unnecessary to find thereon.

Ross, J.:

The lands in controversy in this action, and in a number of other actions now pending before us, form a part of what was known as the "outside lands" of the City and County of San Francisco. After the passage of the Act of Congress of March 8, 1866, in relation to those lands, the Board of Supervisors passed, among other orders, Order No. 866, by which provision was made for the presentation of petitions by the respective claimants, the making of proofs, the making and publication of awards of the land, to be followed by deeds by the Mayor. It is contended on behalf of the appellants that this Order No. 866-was never authorized or ratified by the Legislature, and that, as a result, the deeds issued by the Mayor pursuant to its provisions were unauthorized and void.

In effect Order 866 was ratified and re-enacted by the Act of the Legislature approved March 14, 1870. (Statutes 1869-70, p. 353.) By the first, second, third, fourth and fifth sections of that Act the order was substantially re-enacted, and by the sixth section the Legislature repealed all Orders and parts of Orders of the Board of Supervisors conflicting with Order 866, accompanying the repeal, however, with the proviso that such repeal should not invalidate any of the proceedings instituted under the Order of which Order 866 was amendatory, and expressly authorized such proceedings to be continued under the provisions of said Order 866. This was in effect a legislative ratification of the provi

sions of Order 866, for it can not be held that the Legislature intended to authorize any proceedings to be conducted under an unauthorized or invalid Order. Besides the whole scope of the Act of March 14, 1870, manifests the intent on the part of the Legislature to ratify and continue the provisions of Order 866. The intent is manifested, in the first place, by the repeal of all Orders and parts of Orders in conflict with it, with the saving clause that all proceedings instituted under the Order of which it was amendatory should be unaffected by the repeal and be continued under its provisions; and, in the second place, by the re-enactment in statutory form of the provisions of the said Order.

Our conclusion is, that the deeds under which the plaintiff claims were not unauthorized, and that they were properly admitted in evidence. (McCreery v. Sawyer, 52 Cal. 257; Le Roy v. Cunningham, 44 id. 609; Kraft v. Driscoll, 1 P. C. L. J. 24.) We have looked into the evidence, and cannot say the findings of the Court of possession of the premises by the appellants at the time of the commencement of the action, was not justified. As respects the finding in relation to the statute of limitations, it is sufficient to say that if there was a plea of the statute, the finding covered it.

Judgment and order affirmed.

MCKINSTRY and MCKEE, JJ., concurred.

Paul Rousset et al. v. J. W. Reay et al., No. 6984; Theodore Lieberman ▼. J. W. Reay et al., No. 6983; Simon Held v. J. W. Reay et al., No. 6984; William Thurmauer v. J. W. Reay et al., No. 6895; E. S. Freeman v. J. W. Reay et al., No. 6986; William J. Adams v. J. W. Reay et al., No. 6987; J. M. Forrest v. J. W. Reay et al., No. 6988; Patrick F. Butler v. J. W. Reay et al., No. 7282; presenting the same points and argued by the same counsel as Rousset v. Reay (No. 6891) supra, were affirmed on the authority of that case,

[No. 8,059.

In Bank.]

March 30, 1882.

NEWTON MORGAN v. STEWART MENZIES ET AL.

UNDERTAKING ON ATTACHMENT CITY AND COUNTY CITY. Section 1058, C. C. P.-providing that no bond, written undertaking or surety can be required of the State or the people of the State, or any stare officer in his official capacity, or any County, City or Town" in any civil action or proceeding in which they are parties, etc.- applies to the City and County of San Francisco.

ID.— ID.— ID.— DEFINITION.- The term City includes in its signification City and County.

- ILLEGAL CONSIDERATION

LD. ID. ID. COMMON LAW BOND POLICY OF THE LAW. An attachment undertaking given by the City and County in a suit in which it is plaintiff, is in contravention of the policy of the law, and therefore void as a common law bond.

ID.

BREACH OF CONDITION In an action against the sureties in an undertaking, the condition of the undertaking was that if the defendant recovered judgment the plaintiff would pay all costs that might be awarded to the said defendant, and all damages which he might sustain by reason of said attachment, not exceeding, etc.; but there was no averment in the complaint that the plaintiff had not paid, or even that a demand had been made.

Held:

The complaint was fatally defective. The breach of the contract being obviously an essential part of the cause of action must in all cases be stated in the declaration; and the omission to allege a breach can not be aided or cured even by verdict.

APPEAL from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of the City and County of San Francisco. WILSON, J.

W. C. Burnett and E. E. Haft, for Appellants.

The language of the undertaking is, that the City and County of San Francisco shall pay all damages, and is in effect but a conditional contract to pay if the city does not. As the able counsel for respondent said, upon the argument, "they agreed to pay if the city didn't."

It therefore imposes necessary precedent obligations upon the plaintiff

1. That the city shall be placed in such a condition that it can lawfully pay.

2. That such obligation being fulfilled, it be requested to pay or its refusal alleged.

3. That it shall appear by the complaint that it has not been paid.

By the Statutes of 1863-64, pages 152, 153, all demands against the city and county must be presented to the Board of Supervisors within one year, and until such presentation is made the city can not pay. Such claim could only be presented by Newton Morgan, the plaintiff. His neglect to do so is a neglect to put either principal or surety in default. The principal, because it prevented him from paying, and the surety because he was only obligated in default of the principal. His failure to do so for one year operated as a bar in favor of the city and put it out of its power to make default, and as a logical consequence operated as a bar in favor of the sureties.

The principal not having been in default, the guaranty was not broken, and an action could not be maintained against the sureties. (De Colyer on Guaranties and Principal and S. 215, 216; Brandt on Sureties and Guaranties, Secs. 1, 82 and 83.)

The principal was never put in default. The time had expired before the commencement of the action in which the principal could have been put in default or proceedings taken against it, and the claim was barred against the principal. (Parnell v. Hancock, 48 Cal. 452; Pinney v. Hershfield, 1 Montana, 367; Holcomb v. Foxworth, 34 Miss. 266; Sledge v. Lee, 19 Ga. 411; Goodman v. Allen, 8 La. Ann. 381; Ferry v. Burchard, 21 Conn. 597; Ohio v. Blake, 2 Ohio State Rep. 147; Farmers' etc. Bank v. Kingsley, 2 Doug. (Mich.) 379; Stull v. Davidson, 12 Bush, (Ky.) 167; Evans v. Raper, 74 N. C. 639; Blackburn v. Beall's Exect'r., 21 Md. 208; Burge on Suretyship, 3, 6.)

The undertaking on attachment on which this action is based was taken without authority and contrary to law, no undertaking being required of the City and County. (C. C. P. § 1058.) We therefore claim that the undertaking is void. (Benedict v. Bray, 2 Cal. 251; Caffrey v. Dudgeon, 38 Ind. 512; Byers v. The State ex rel. Hutchison, 20 Ind. 47; Thompson v. Lockwood, 15 Johns. 256.)

Although Sec. 1058 does not in exact language exempt the

City and County, yet by a reasonable and fair construction it must be intended to include it.

We admit, that where the statutes authorize the taking of a bond upon attachment, though the formalities in the preparation of the bond may not have been pursued, the bond may be good as a common law bond. But we maintain that if a bond is unauthorized or forbidden by law, the bond taken will be void as to the sureties. The cases with perhaps one exception cited by the respondent, only go to the effect that a bond authorized by law will be good as a common law bond, though the formalities of the statutes are not pursued in the preparation thereof. This exception is the case of Barnes v. Webster, 16 Mo. 259.

This old case may be construed to maintain that a bond not authorized by law is yet good as a common law bond. It seems to stand alone on this question. That it was an ill considered case is evident from the language quoted from it by the counsel for the respondent: "It was needless to cite authorities to support that proposition."

G. F. & Wm. H. Sharp, for Respondents.

Appellants are undoubtedly sureties as to the City and County of San Francisco, but as to respondents, they are principals. The undertaking as between the parties to it is an original contract. (Frankel v. Stern, 44 Cal. 168; Curtis v. Richards, 9 id. 33; Murdock v. Brooks, 38 id. 604; Aud v. Magruder, 10 id. 288-9; City of Sacramento v. Dunlap, 14 id. 423 (last section.)

Independent of authority, this must necessarily be so, on principle. Before the relation of guarantor or surety could exist as to Morgan, he must have a cause of action alike against both principal and guarantor or surety, and his cause of action must be identical, involving equal right and equal damages, with the right or election to proceed against the one or the other.

The City and County not being a party to the undertaking, is not obliged to respond under it, and could not be sued by respondent on it.

Hence we say, that a cause of action arises at once against appellants, as principals, on their undertaking upon a recov