amount thereof with the county clerk or treasurer, payable to the order of the mortgagee.

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Section 3338. One having a mere lien on personal property cannot recover greater damages for its conversion from one having a right thereto superior to his after his lien is discharged than the amount secured by the lien, and the compensation allowed by section 3336 for loss of time and expenses."

With respect to the property mortgaged, the instructions did not permit any compensation to the plaintiffs for loss of time and expenses, but confined the damage occasioned by the conversion of that property, if conversion should be found, to the amount secured by the lien. If the plaintiffs should also have been allowed compensation for the time and money properly expended in pursuit of that property, the error, if any, was favorable to the appellant, who cannot therefore be heard to complain. In other respects, the instructions in regard to the mortgaged property were in conformity to the provisions of the code cited and with the ruling of this court in the case of Wood v. Franks, 56 Cal. 217.

The first instruction given at plaintiff's request to the effect that the damage caused by the wrongful conversion of the property in the event it was found to have been wrongfully converted was presumed to be, first, the value of the property at the time of the conversion, with interest from that time, and second, a fair compensation for the time and money properly expended in pursuit thereof, only applied and in view of the instructions in respect to the mortgaged property could only have been understood by the jury to apply to that portion of the property not embraced in the chattel mortgage.

But the evidence the court permitted the plaintiffs to give for the purpose of entitling them to compensation for time and money expended in pursuit of the property was not proper, and defendant's motion to strike the same out should have been granted. It was altogether too in

definite and uncertain. To entitle a party to such compensation the testimony should tend to show that money was properly paid out and time properly lost in pursuit of the property, and how much. And when that is done, it is for the court or the jury, as the case may be, to allow a fair compensation therefor. In the present case it is impossible to say to what extent the verdict was affected by the testimony erroneously admitted.

Judgment and order reversed, and cause remanded for a new trial.

THORNTON, J., MCKINSTRY, J., MYRICK, J., SHARPSTEIN, J., MCKEE, J., and MORRISON, C. J., concurred.

[No. 11253. Department Two.

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September 23, 1886.]

THE PEOPLE ET AL., APPELLANTS, v. HIRAM HULBERT ET AL., RESPONDENTS.

SWAMP AND OVERFLOWED LAND

ACTION ΤΟ ENFORCE ASSESSMENT STATUTE OF LIMITATIONS. - An assessment for the reclamation of swamp and overflowed lands is a liability created by statute, within the meaning of subdivision 1, section 338 of the Code of Civil Procedure, and an action to enforce it is barred if not commenced within three years after the cause of action accrued.

APPEAL from a judgment of the Superior Court of Yolo County.

The facts are stated in the opinion.

A. C. Adams, for Appellants.

George P. Harding, and John W. Goin, for Respond

ents.

BELCHER, C. C. In December, 1870, an assessment for reclamation purposes was levied upon the lands situate in reclamation district number 108, and on the

fifth day of May, 1871, it became delinquent. On the ninth day of August, 1884, this action was commenced to enforce payment of the assessment against certain lands in the district owned by defendant. The defendant demurred to the complaint upon the ground that the cause of action was barred by subdivisions 1 of sections 338 and 339, and by sections 343 and 345 of the Code of Civil Procedure. The court below sustained the demurrer, and we think properly.

Under subdivision 1 of section 338, "an action upon a liability created by statute, other than a penalty or forfeiture," is barred if not commenced within three years after the cause of action accrues.

In Perry v. Washburn, 20 Cal. 318, it was held that taxes are not debts, nor founded upon contract, but charges upon persons or property to raise money for public purposes. In People v. McCreery, 34 Cal. 454, it is said that taxes are charges, imposed by or under the authority of the legislature, upon persons or property subject to its jurisdiction."

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A swamp land assessment is a charge imposed upon property by authority of the legislature, and is thus clearly a "liability created by statute." The fact that it is only a lien upon the property assessed and not a direct charge against the owner is immaterial. "A lien is a charge imposed upon specific property, by which it is made security for the performance of an act." (Code Civ. Proc., sec. 1180.)

The act here, for the performance of which the land was made security, was the payment of the assessment. An action was required to enforce the performance of the act, and it could only be brought within the time prescribed by statute. (San Francisco v. Jones, 10 Saw. 151; State v. Yellow Jacket S. M. Co., 14 Nev. 226.)

The special act of the legislature referred to by the appellant (Stats. 1871-72, p. 696), has no application

to the case. It provides only that warrants and assessments, while they remain unpaid, shall bear interest. The judgment should be affirmed.

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

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 11133. Department Two.

September 23, 1886.]

In the Matter of the EstATE OF JOHN BALDWIN, AN INSOLVENT.

PROPERTY EXEMPT FROM EXECUTION

THRASH

INSOLVENCY ING MACHINERY FARMER. An expensive thrashing outfit, consisting of a thrashing-engine, water-tanks, a thrasher, a derrick and forks, a seed-cleaner, a feeding-machine, a feeding-rack, and a cookhouse, which is owned in common by several farmers, and used by them to a limited extent on their own lands, but principally in doing work for others for hire, is not exempt from execution under subdivision 3 of section 690 of the Code of Civil Procedure, and upon the insolvency of one of the co-owners, his interest therein cannot be set apart for his use and benefit.

ID.

ID.

SEVERAL IMPLEMENTS OF SAME CHARACTER CANNOT BE SET APART. - An insolvent farmer, for whose benefit a particular implement of husbandry has been set aside as exempt from execution, cannot have another implement of the same general character, although operated in a different manner, set aside for his benefit, unless it appears that the former implement is insufficient for his purposes.

APPLICATION ΤΟ SET APART. CREDITORS MAY OPPOSE WITHOUT FILING WRITTEN OBJECTIONS. - On an application by an insolvent debtor to have certain property set aside to him as exempt from execution, the creditors may appear and object to the property being set aside, without filing any paper setting forth their objections.

APPEAL from an order of the Superior Court of San Joaquin County refusing to set apart certain property for the benefit of an insolvent debtor.

The facts are stated in the opinion.

J. B. Webster, and L. M. Elliott, for Appellant.

F. T. Baldwin, Ansel Smith, and J. C. Campbell, for Respondents.

BELCHER, C. C. - John Baldwin was a farmer, and was adjudged an insolvent debtor, under the provisions of the Insolvent Act of 1880. After the order After the order adjudging him an insolvent was entered, he petitioned the court to set aside to him certain personal property as exempt from execution and among other things, a Cahoon seed-sower, and a "thrashing rig," consisting of a thrashing-engine, three tanks to hold water for the engine, a thrasher, a derrick and forks, a seed-cleaner, a feeding-machine, a feedingrack, and a cook-house.

S. P. Bailey, one of the creditors of the petitioner, filed a paper objecting to the property being set aside on the ground that it was not by law exempt from execution.

The petitioner moved that the paper be stricken out on the ground that it was not verified, and no copy of it was served on him or his attorney. The court denied the motion, and an exception was reserved to the ruling.

The matter was then heard, and from the evidence introduced, it appeared that Baldwin owned and farmed two hundred acres of land in San Joaquin County, and that he rented other lands, and usually cultivated about 320 acres in grain annually. He owned the Cahoon seed-sower, which was worth ten dollars, and another seed-sower, which was set apart to him, worth ninety dollars. The two seed-sowers were used for sowing grain broadcast, but were operated in a different manner. He and his son, who was also a farmer, owned jointly the thrashing rig. The engine was used to furnish motive-power for the thrasher, and it required sixteen men and six horses in addition to the steam-power to operate it. The thrashing rig was used to thrash the grain of its owners, but it was used principally for the purpose of thrashing grain for others.

It was also shown that the implements above described were all necessary implements to enable a farmer to profitably carry on the business of farming, and to harvest and prepare his crops for market; that it was of