of ten dollars for every day the nuisance remained after notice to remove it.

The defendants demurred to the complaint, upon the ground, — 1. That the action was improperly brought in the name of the road overseer; 2. That the complaint was ambiguous and uncertain in the description of the alleged highway; and 3. That several causes of action were improperly united, and not separately stated; viz., one to abate a nuisance, another to recover a statutory penalty, and another to recover damages for a willful and malicious injury.

The court below sustained the demurrer, and the plaintiff declining to amend, judgment was entered in favor of the defendants, from which the plaintiff appealed.

The action was brought under the supposed authority of section 2734 of the Political Code, as amended in 1883, which reads as follows: "If the encroachment is denied, and the owner, occupant, or person controlling the matter or thing charged with being an encroachment refuses either to remove or permit the removal thereof, the road overseer must commence in the proper court an action to abate the same as a nuisance; and if he recovers judgment, he may, in addition to having the same abated, recover ten dollars for every day such nuisance remained after notice, and also his costs in said action."

The respondents insist that said action should have been in the name of the county, and in support of this position cite section 2743 of the same code. That section reads:

"All penalties or forfeitures given in this chapter, and not otherwise provided for, must be recovered by the road overseer or commissioners of the respective road districts by suit in the name of the county in which said road district is situated, and be paid into the road fund of his district."

In San Benito County v. Whitesides, 51 Cal. 416, the same question was involved, and the court there said:

"The action is by the county to abate a nuisance, caused by the obstruction of a public highway, and was commenced in March, 1875. We have been referred to no provision of the statute, nor to any rule of law which authorizes an action of this character in the name of or on behalf of a county. On the contrary, it would appear from section 2746 of the Political Code, as amended in 1873-74, that the action must be in the name of the road overseer; we think the action in the name of the county cannot be supported."

Section 2746, upon which the decision is rested, read then precisely as section 2734, above quoted, now reads. It is true, the case did not involve the ten-dollar penalty; but it is clear that if the plaintiff here can maintain the action to abate the nuisance in his own name, he may, if he recovers judgment, also "recover ten dollars for every day such nuisance remained after notice."

Section 2743 relates to penalties and forfeitures "not otherwise provided for," and does not affect the question. The point that the highway is not described in the complaint with sufficient certainty is not well taken. There can be no difficulty in locating the road and in determining the exact position of the alleged obstruction.

So the objection that three causes of action are improperly united cannot, we think, be maintained. The complaint prays for a judgment "for exemplary damages in the sum of five thousand dollars, for the unlawful and malicious maintenance of said nuisance"; but no facts are stated showing that the plaintiff is entitled to recover that sum, or any sum, for the cause named. The prayer is bad, but a demurrer does not lie to that. (Rollins v. Forbes, 10 Cal. 299; Althof v. Conheim, 38 Cal. 234.)

The facts showing that the defendants have become

liable to pay the ten-dollar penalty for not removing the obstruction are separately stated, and that cause of action is properly united with the one to abate the nuisance.

There is nothing in the suggestion that if the plaintiff recovers, the money collected will belong to him. As he sues in the performance of his official duties, any money collected on the judgment will belong to the road district of which he is overseer.

It follows that the judgment should be reversed and cause remanded, with directions to the court below to overrule the demurrer.

FOOTE, C., and SEARLS, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is reversed and cause remanded, with directions to the court below to overrule the de

murrer.

[No. 11428. Department Two. September 21, 1886.] ROSINA BERNIAUD, APPELLANT, V. J. L. BEECHER,

RESPONDENT.

STATUTE OF LIMITATIONS

TITLE UNDER

POSSESSION AND PAYMENT OF TAXES ESSENTIAL. Title to land cannot be acquired under the statute of limitations by a person who has never been in the actual possession thereof, and has never paid any taxes assessed against it.

WRITTEN INSTRUMENT USE OF MASCULINE PRONOUN EVIDENCE TO IDENTIFY PERSON INTENDED. The use of the pronouns "he" and "his" in a written instrument, in referring to a person whose christian name is designated therein by a mere initial, is not conclusive that the person referred to is a male; and in an action 1ounded on such instrument, parol evidence is admissible to show that the person intended is a female.

EVIDENCE

PARTY OBJECTING TO MAY USE. An instrument admitted in evidence may be used by the party against whom it is offered to prove any fact which it legitimately tends to prove, notwithstanding he objected to its introduction.

APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.

The facts are stated in the opinion.

J. C. Byers, and L. W. Elliott, for Appellant.

J. A. Louttit, for Respondent.

BELCHER, C. C. - This is an action to quiet the plaintiff's title to the west half of a block of land in the city of Stockton. The plaintiff is an insane woman, and sues by her duly appointed guardian ad litem. The answer denies that the plaintiff is the owner of the premises described in the complaint, or of any part thereof, or has or ever had any interest therein; and it alleges, among other things, that the plaintiff died many years before the commencement of the action, and that the cause of action is barred by the provisions of section 319 of the Code of Civil Procedure.

To establish her title, the plaintiff offered in evidence a decree of foreclosure of mortgage and a sheriff's deed of the land to R. Berniaud, made in pursuance of a sale under the decree.

The note, to secure the payment of which the mortgage was given, was made payable to R. Berniaud or his duly appointed agent. The mortgage granted and conveyed the property "unto the said R. Berniaud, and unto his heirs and assigns forever." The sheriff's return of sale showed that the property sold was struck off to R. Berniaud, . . . . and he, the and he, the said R. Berniaud, was then and there declared the purchaser thereof. It further showed that a certificate of sale was issued to the purchaser, "in consideration of which certificate given the said R. Berniaud, by his agent, A. C. Bradford, has given and executed to the undersigned his receipt, which is hereto attached, for the amount of said purchase-money," etc. The receipt referred to was signed "R. Berniaud, by A. C. Bradford, attorney in fact."

The complaint in the foreclosure proceeding alleged

that the plaintiff was a resident of Philadelphia, Pennsylvania, and was verified by the partner of the attorney who filed it. The verification, among other things, stated: "That the reason that this affidavit is not made by the plaintiff is that she is not a resident of the county of San Joaquin, but resides in the city of Philadelphia."

A. C. Bradford was called as a witness for plaintiff, and testified: "I was the agent for Mrs. Berniaud; her first name was Rosina. I was appointed her agent in 1858. I employed J. B. Hall to foreclose this mortgage held by Mrs. Berniaud against one Ward. I corresponded with her husband. He said she had become insane and was in an asylum. He said she owned the property. In 1858 Mr. Berniaud employed me. He said he had been authorized to act for her. I think he sent me his power of attorney as such guardian."

This testimony was objected to by the defendant, though upon what ground is not stated, and his objection was overruled. Plaintiff then proved by the witness Cutting, without objection, that he knew R. Berniaud by reputation, and that she was the same party that owned other property conveyed by the sheriff's deed, and that he had heard she was a woman and insane. Plaintiff then offered to prove that it was a matter of general notoriety that R. Berniaud, named as purchaser in the sheriff's deed, was an insane woman living in Philadelphia.

The defendant objected to this testimony on the ground of incompetency, and the court sustained the objection, the plaintiff reserving an exception.

The plaintiff then rested, and the defendant moved for a nonsuit, upon the ground that it did not appear that the plaintiff was the R. Berniaud to whom the property in controversy was sold. The motion was taken under advisement by the court, to be decided after hearing all the evidence.