"6. That the said strip of land above described has never been laid out or erected as a road or public highway by order of the board of supervisors, and has never become a public road by use or dedication by any owner of said land or otherwise; nor has any part or portion of plaintiff's land described in his complaint in this action and in the findings become a public road by order of the board of supervisors, or by use or by dedication or otherwise.

"7. That the said defendant will carry out and perform the acts so threatened by him, unless restrained by the process of this court, and plaintiff will be irreparably injured thereby.

"8. That A. G. Toomes, mentioned in defendant's answer, never, as owner or otherwise, on or about the year 1873, or at any other time, dedicated said strip of land, or any part thereof, to the public and for a public highway, either by spoken words of said A. G. Toomes or by his conduct.

"9. That the said strip of land was never accepted by the public as a highway, and the public since 1873, or since any other date, have not traveled upon or over said strip of land or any part thereof, or used the same continuously or at all as a public highway."

Appellant attacks these findings numbered 6, 7, 8, and 9, upon the ground that they are not supported by the evidence, and are contrary thereto.

There is a substantial conflict in the testimony, and upon well-settled principles we are not at liberty to disturb the findings under such circumstances.

The findings cover all the issues in the cause necessary to a determination of the case.

The allegation of the answer that A. G. Toomes was the owner of the land in 1870 was wholly immaterial, except as a predicate for showing that as such owner he dedicated the land to the purposes of a highway, and the eighth finding negatives the fact of such dedication.

The court having found that no highway ever existed over the land, and that plaintiff was the owner thereof, the further allegation of the answer that plaintiff built a fence thereon and across the highway became immaterial.

Manifestly, if he owned the land and the public had no easement in it or right to it, he could build as many fences as he chose upon it without incurring any liability thereby. So, too, if it was never a highway, there was no right in the public to be abandoned.

The question of highway or no highway was one of fact, to be passed upon as such by the court, and was properly determined as such. (Harding v. Jasper, 14 Cal. 642.)

There was no error in permitting the witness A. J. Clark to testify as to the declarations of Toomes (deceased), made while he was having the land surveyed, to the effect that he was not going to have a road on the west line of the land he was surveying.

The declarations of a party while engaged in the performance of an act, and illustrating the object and intent of its performance, are admissible in evidence.

The evidence was admissible in rebuttal of the declarations introduced by defendant, tending to show that Toomes had said about the same time that he would open a road at the point indicated.

The action of the court in ruling out the testimony of the witness Healy, so far as he proposed to give his impressions, was proper.

The witness had stated that in surveying off the west line of the land sold to Simpson by Toomes, he had run the western boundary on a line with the east side of Second Street.

The witness was then asked if he knew what the object of Toomes was in making the lines thus correspond; to which he replied that he did not recollect what Toomes said about it, and then was about to give his impression as to the object.

The inference to be drawn from the acts of Toomes was for the court to draw from his acts, and the impressions or opinions of the witness were not admissible as aids to the deductions to be made by the court.

We find no error in the record calling for a reversal, and are of opinion the judgment and order appealed from I should be affirmed.

BELCHER, C. C., and FOOTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

[No 8823. In Bank.- September 28, 1886.]

CITY AND COUNTY OF SAN FRANCISCO, APPELLANT, V. HERMAN HEYNEMANN ET AL., RE

SPONDENTS.

TAX COLLECTOR CITY AND COUNTY OF SAN FRANCISCO

FAILURE TO

The tax

PAY OVER MONEY COLLECTED - STATUTE OF LIMITATIONS.
collector of the city and county of San Francisco is legally bound
to pay over the moneys collected by him in his official capacity
upon the expiration of his term of office, without any demand
being made upon him for payment. If he fails so to do, the
statute of limitations commences to run from that time against
the right of the city and county to maintain an action on his
official bond to recover for his default.

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

The facts are stated in the opinion of the court.

John L. Love, for Appellant.

The liability of the sureties on the official bond of the tax collector continues so long as any money remains in his hands belonging to the city. (United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 Wheat. 184; United States v. Nicholl, 12 Wheat. 505; Ex parte Christian, 23 Ark. 541.)

A. Heynemann, and W. C. Belcher, for Respondents.

The right of the city and county to maintain the action was barred. (2 Hittell's Dig., sec. 6297; Consolidation Act., sec. 78; San Francisco v. Ford, 52 Cal. 198; Code Civ. Proc., sec. 337; Tynan v. Walker, 35 Cal. 634.) No demand was necessary to set the statute of limitations in motion. (State v. Poulterer, 16 Cal. 515; Middlebury v. Nixon, 1 Vt. 232; Little v. Richardson, 6 Jones L. 305; State v. McIntosh, 9 Ired. 307; Catterlin v. Somerville, 22 Ind. 482; Ferguson v. Dunn, 28 Ind. 58; Stacy v. Graham, 14 N. Y. 492.)

Ross, J. -The respondent, Heynemann, became surety on the official bond of Alexander Austin as tax collector of the city and county of San Francisco for the two years. commencing the first Monday of December, 1870, and ending the first Monday of December, 1872, when Austin's term of office expired. During his term, the latter as tax collector received certain moneys which he failed to pay over or to account for. Nearly five years afterwards, to wit, April 26, 1877, plaintiff demanded of Austin the money which he failed and refused to pay, and nine years from the expiration of of Austin's term of office that is to say, January 6, 1881, plaintiff commenced this action upon the official bond of the delinquent. To the action a plea of the statute of limitations was interposed, which was sustained by the court below, and must be sustained here. It is attempted to be avoided on behalf of the city and county by saying that the statute did not commence to run until the demand was made on Austin in 1877. But to so hold would be to hold that the tax collector was not bound to pay over the moneys collected by him in his official capacity until the city and county made demand upon him for them. Clearly this was not so. The money was not received by the tax collector as an ordinary deposit. He received it in his official capacity, and was legally bound to pay it

over to the proper custodian in accordance with the requirements of the law; and the contract of the sureties was, that in the event of his failure to do so, they should be held liable. Whether the law in force at the time required him to pay the moneys collected to the treasurer of the city and county the first Monday of each month, or not, there can be no doubt that he was legally bound to pay them over upon the expiration of his term of office. In such a case, no necessity for any demand existed. The party was in default by his own act, and a debtor to the city and county for the amount due. (State v. Poulterer, 16 Cal. 514.)

It results that the court below was right in holding the action barred by the statute of limitations.

The facts in the case of San Luis Obispo v. King, 69 Cal. 531, were unlike the facts here, and besides, what was there said in respect to the statute of limitations was unnecessary to the decision.

Judgment affirmed.

SHARPSTEIN, J., and MCKINSTRY, J., concurred.

THORNTON, J., concurred in the judgment.

Rehearing denied.

[No. 11289. Department Two.- September 29, 1886.] WILLIAM HARNISH ET AL., APPELLANTS, V. R. H. BRAMER ET AL., RESPONDENTS.

-

APPEAL TRANSCRIPT STIPULATION TO CORRECTNESS OF. Where the correctness of the transcript on appeal is stipulated to by the respondent, he cannot afterwards impeach it by showing that the judgment was entered at a later date than that shown on the face of the record.

ID.

PLEADING

COMPLAINT

GENERAL AND SPECIAL DEMURRER. If a complaint fails to state a fact essential to the cause of action, the defendant may take advantage of the defect by a general demurrer. If, however, the complaint avers all the essential facts, but states them defectively or improperly, the defect can only be reached by a special demurrer, particularly designating the specific point at which it is aimed.