ing this statute, we have no power to determine any other question than the jurisdictional one. It is plain that under the provisions of section 582, above quoted, and under which the court evidently acted, it had jurisdiction of the question of costs, and if it erred in allowing any costs that were not taxable against the relator, it was not an excess of jurisdiction, and its action cannot be reviewed upon certiorari. In re Wixom, 12 Nev. 219; State v. District Court of Second Judicial Dist., 16 Nev. 76. The writ, therefore, should be dismissed, and it is so ordered. BIGELOW, C. J., and BONNIFIELD, J., concur. (113 Cal. 312) BEATTY. MILLS. (S. F. 62.)1 (Supreme Court of California. June 23, 1896.) MECHANICS' LIENS-TIME OF FILING. Where a building contract provides that the work shall be done "to the satisfaction of the superintendent of public streets of said city and county," the 60 days within which the contractor may file a lien begin to run from the completion of the work, and not from the time a certificate is made by such superintendent that the work was done to his satisfaction. Department 2. Appeal from superior court, city and county of San Francisco; James E. Murphy, Judge. Action by George W. Beatty against C. J. Mills to establish and enforce a mechanic's lien. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. Chadburne & Herrin, for appellant. Reddy, Campbell & Metson, for respondent. MCFARLAND, J. This is an action to enforce a lien under the provisions of the Code relating to liens of mechanics and others. Judgment went for defendant, and plaintiff appeals. The premises against which the lien is sought to be enforced are situated in the city and county of San Francisco, and are the property of the estate of Warren F. Mills, deceased; and the respondent, Cecil J. Mills, is executrix-jointly with one Holland Smith, who is executor-of said estate. The lien is based on an alleged written contract for certain street work in front of said premises made by Mrs. Mills alone, and without the concurrence of her co-executor, with Hogan & Burns, contractors, and an assignment of the lien by said contractors to the appellant. The court found (1) that the contract was void because one of said contractors had falsely represented to the respondent, when she was quite sick in bed, that her co-executor, Smith, to whom she intrusted the management of the estate, had sent, by said contractor, a direction that she should sign said contract; (2) that the assignment to appellant was made 1 Rehearing denied. before the filing of the lien, and therefore of no legal value, as held in Mills v. Land Co., 97 Cal. 254, 32 Pac. 169; and (3) that the lien was not filed within 60 days after the completion of the work. The last of the three findings above stated was clearly right, and therefore we need not discuss the other two. It is beyond doubt that, as a fact, the lien was not filed until more than 60 days after the completion of the work. Appellant contends that this defect in his lien is obviated by a certain certificate of a deputy superintendent of streets. The contract provided, among other things, that the work should be done "to the satisfaction of the superintendent of public streets of said city and county"; and appellant offered in evidence a certificate of the superintendent, by a deputy, that the work "has been done to my satisfaction." Respondent objected, on several grounds, to the admission of this certificate in evidence, and the objection was sustained. Appellant contends that this ruling was erroneous, and that, as the lien was filed within 60 days after the date of said certificate, therefore it was filed in time. But this contention cannot be maintained. Assuming that, as evidence of the work having been done to the satisfaction of the superintendent as provided in the contract, the certificate or written declaration of the superintendent was admissible, and not mere hearsay, and assuming, further, that for the purposes of the contract a certificate of a deputy was a certificate of the superintendent, still such certificate could not change, or in any way affect, the statutory period within which a lien must be filed, and that period commences at the date of the completion of the work. By the contract the superintendent was arbiter, at most, of only the quality of the work; and his certificate only purports to state that the work which had been done was done well, and to his satisfaction. If it had contained a statement of the date of the completion of the work, such statement would have been of no value. The judgment and order denying a motion for a new trial are affirmed. We concur: TEMPLE, J.; HENSHAW, J. (113 Cal. 307) CENTER v. DAVIS et al. (S. F. 42.)1 (Supreme Court of California. June 23, 1896.) PARTITION-DEED BY TENANTS IN COMMONVALIDITY. A deed by tenants in common which recites that it is made to the grantee "for the sole purpose of dividing the pieces or parcels of land hereinafter described, that deeds may come direct from the party of the second part to the parties of the first part, according to their respective interests," is binding on none of the grantors unless executed by all. Department 2. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge. Action by George L. Center against Samuel Rehearing denied. Davis and others to quiet title to land. From a judgment in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. J. H. Moore, W. B. Sharp, and James T. Boyd, for appellant. Freeman & Bates and Jos. W. Nougues, for respondents. MCFARLAND, J. This is an action brought by plaintiff against a large number of defendants for the purpose of quieting plaintiff's title, as against said defendants, to a certain piece of land, covered by water, in the city and county of San Francisco. From the answers, and statements and admissions which appear in the statement on motion for a new trial, it appears that the defendants do not deny the quantity of plaintiff's undivided interest as a tenant in common with the defendants of a large tract of land, of which the tract described in the complaint is a part. But plaintiff contends, and his complaint goes upon the theory, that he is the owner in severalty of the premises described in the complaint, and this defendants deny. The court granted a nonsuit, and entered judgment in favor of defendants; and from the judgment, and from an order denying a new trial, the plaintiff appeals. It appears that in 1854 the grantors of the parties plaintiff and defendant were the owners of a certain tract of land, consisting of certain beach and water lots, in the city and county of San Francisco; and it is contended by plaintiff that there has been a partition of said tract of land by which plaintiff has become the owner in severalty of that part of said tract which is described in the complaint. The first step in the process by which said plaintiff claims that said partita was effected is a trust deed made June 7, 1854. In that deed some 15 different persons are named as parties of the first part, or grantors, and one Joseph E. Gary is named as party of the second part. It is shown by the parol testimony introduced by plaintiff that the purpose of said deed was to effect a partition, through the process of all the co-tenants conveying to said Gary with the understanding that said Gary was to reconvey to each of the co-tenants, in severalty, the share to which he was entitled. The deed itself contains this clause: "The object of this conveyance to the party of the second part is for the sole purpose of dividing the pieces or parcels of land hereinafter described, that deeds may come direct from the party of the second part to the parties of the first part, according to their respective interests." The defendants make several objections to the validity of this deed. They say, in the first place, that it was net signed and executed by all of the persons named therein as parties of the first part and co-tenants. It is a fact that several of said parties did not sign said deed. It is claimed, however, by plaintiff, that some of those not signing had no interest in the property; but this question is not necessary to be discussed here, because it is admitted that Samuel Todd was one of the tenants in common of the land of which that mentioned in the complaint is a part, and that he refused to sign the deed, and did not sign it. It is contended also by defendants that this deed to Gary included other lands, to which, as it appeared afterwards, none of the parties to said deed had any title; and it is contended that this vitiated the whole deed, upon the authority of Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418. It is also contended that the deed was void because it did not describe the quantity of interest of the various parties, and presented no basis upon which a partition could be effected. We deem it necessary to notice only the first objection above stated to the validity of said deed. Todd not having signed the deed, and having refused to sign it, it was, as a deed contemplating partition, void. Gates v. Salmon, 46 Cal. 361; Hill v. Den, 54 Cal. 7; Sutter v. San Francisco, 36 Cal. 112. "A contract which is entered into by several parties for the purpose of effecting a partition of land which they hold in common must be binding upon all the parties, or it binds none." Gates v. Salmon, supra. The plaintiff contends that this difficulty was obviated by the fact that both Gary and Todd afterwards deeded their interest to the grantor of plaintiff; but, waiving all other considerations, the deed to Gary, for the reason above given, was inoperative, and did not confer upon Gary the right to convey the interests of the parties who had signed the trust deed. There is no pretense here that there was any partition of the tract, by actual occupation of different parts of it by the tenants in common, respectively, in accordance with any parol agreement. The whole tract was covered by water, and there was no separate possession of particular parts of it taken by the individual tenants in common. Neither was there any partition by mutual conveyance between all the tenants in common. For the reasons above stated, the court below was warranted in holding that the plaintiff had made out no case for the relief asked in his complaint, as a tenant in severalty of the tract of land therein described, and the nonsuit was therefore properly granted. These views make it unnecessary to particularly notice other positions taken by the respective counsel. The judgment and order denying a new trial are affirmed. We concur: HENSHAW, J.; TEMPLE, J. (113 Cal. 310) LOUI SOY WING v. CHUNG YICK et al. (S. F. 120.) (Supreme Court of California. June 23, 1896.) APPEAL-REVIEW-WEIGHT AND SUFFICIENCY OF EVIDENCE. Where, in malicious prosecution, the evidence as to want of probable cause, and malice, is conflicting, the verdict will not be disturbed on appeal. Department 2. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge. Action by Loui Soy Wing against Chung Yick and others for malicious prosecution. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed. Lyman I. Mowry and Thos. T. Reardon, for appellants. Smith & O'Keefe and F. E. Stranahan, for respondent. The MCFARLAND, J. This is an action brought by plaintiff to recover damages for an alleged malicious prosecution of plaintiff by defendants upon a criminal charge made by defendants against plaintiff in the police court of the city and county of San Francisco. jury returned a verdict for plaintiff in the sum of $500, for which amount judgment was rendered. Defendants appeal from the judgment, and from an order denying their motion for a new trial. The record presents no error of law committed by the court below. There are no exceptions to the rulings of the court respecting the admissibility of evidence, or the instructions given to the jury. There is no doubt that the law is as claimed by counsel for appellant,-that in a suit for malicious prosecution the plaintiff must show both a want of probable cause, and malice,-but the instructions of the court were in accordance with this principle. Neither is there any question of law presented as to the proposition that the advice of respectable counsel, given upon a full and fair statement of the facts upon which the prosecution was instituted, and a bona fide acting upon such advice, constitute a defense to the action for malicious prosecution. The appeal in this case therefore rests entirely upon the proposition that the evidence fails to show a want of probable cause, and malice. We have examined the testimony in the case very fully, and while it does not make an exceedingly strong case in favor of the plaintiff, as to want of probable cause and malice, still there is not such a defect in the evidence as to those two points as would warrant us in setting aside the verdict. Nor is the evidence such as would fairly preclude the jury from finding that there was not a full and fair statement of the facts made to counsel of defendants at the time the prosecution was instituted, or from finding that the defendants did not act in good faith upon his advice. We are not called upon to determine whether or not the verdict of the jury was in accordance with the correct balance of closely-conflicting evidence, but whether the character of the evidence was such as to leave the question within the province of the jury. The judgment and order denying a new trial are affirmed. We concur: TEMPLE, J.; HENSHAW, J. (113 Cal. 302) VOORMAN 7. LI PO TAI et al. (No. 15,927.)1 June 23, 1896.) (Supreme Court of California. 1. In foreclosure, summons was issued and served in 1877, but not returned till 1893. Defendant entered into no stipulation in regard to the case, but plaintiff granted him certain privileges, reserving the right to enter default and judgment in case defeudant failed to comply with the conditions. Defendant made payments from time to time, and died in 1893. His administrator urged that the action was barred by limitations under Code Civ. Proc. § 581, subd. 7 (as amended St. 1889, p. 398), which requires that an action in which summons shall not have been issued within one year and served, and return thereon made within three years after the commencement of said action, shall be dismissed, "and no further proceedings shall be had therein." Held, that the statute is mandatory, and that plaintiff's right of action was lost by the failure to return the summons. 2. Code Civ. Proc. § 1014, defining an appearance, is exclusive, and defendant can appear only by an answer, a demurrer, or by written notice of his appearance, or by an attorney giving notice of appearance for him, as therein providea. 3. Where a claim against an estate has been barred by limitations, the administrator cannot bind the estate by waiving the defense. Department 2. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge. Action of foreclosure by Henry Voorman against Li Po Tai, and by substitution against A. C. Freese, administrator of the estate of Li Po Tai, deceased. From a judgment in favor of plaintiff, defendant appeals. Revers ed. J. G. Sullivan and Alexander D. Keyes, for appellant. R. H. Countryman and W. M. Willett, for respondent. TEMPLE, J. This appeal is from a judgment of foreclosure. The action was commenced July 23, 1877, in the district court. Summons was issued and served on the same day, but was not returned or filed until September 26, 1893 The only question involved in the appeal is whether the right to prosecute the action has been lost under the provisions of section 581, Code Civ. Proc. Li Po Tai never formally appeared in the action, but July 31, 1877, Messrs. Howe & Rosenbaum procured a stipulation from plaintiff's attorney granting an extension of time, which was filed August 6, 1877. Upon this was indorsed, "Howe & Rosenbaum, Attorneys of Rehearing denied. Defendant Li Po Tal." By whom this indorsement was made was not shown, but, as It is the custom of lawyers to have all papers filed similarly indorsed, it is presumed that it was done by the consent and direction of the persons named. The same custom demonstrates that it was not intended as a signature in any sense. It was shown that the same firm negotiated with plaintiff's attorneys for a stay of proceedings, and procured a stipulation signed only by the attorneys for the plaintiff, whereby plaintiff acknowledged the receipt of all interest due and costs which had accrued, including the fees of plaintiff's attorneys and $1,000 of the principal sum due, in consideration of which an extension of 30 days was granted; and it was stipulated that another extension of 30 days would be given if defendant then paid $1,000 and interest; and, if defendant thereafter paid the interest monthly, monthly extensions would be granted for one year, but if the defendant "shall fail to make any of the payments aforesaid at the time above specified, the plaintiff may take his default in the action, and enter judgment therein for the amount unpaid," etc. Thereupon defendant made payments from time to time,-the last being $500, on the 5th day of December, 1892. And it was doubtless in consideration of these payments that plaintiff delayed his action. On the 3d day of April, 1893, Li Po Tai died. An administrator having been appointed, plaintiff presented his claim against the estate, and procured a substitution of the administrator in the action. He then filed a supplemental complaint setting up the death of defendant and the presentation and rejection of his claim. To the supplemental complaint defendant interposed a general demurrer, which was overruled. He then answered, and in his answer de nied that summons had ever been issued or was served on Li Po Tai, and denied that the summons had been returned, or that Li Po Tai had made default. Plaintiff recovered judgment. On the 19th day of March, 1889; section 581 of the Code of Civil Procedure was amended by adding subdivision 7. St. 1889, p. 398. It reads as follows: "And no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and served, and return thereon made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years." This provision is very sweeping, and is expressly made applicable to pending suits. It is mandatory; otherwise it would have no force at all. The courts were already authorized and required to dismiss suits upon motion when there had been culpable failure to prosecute. To hold this statute directory would, therefore, be to repeal it. Then the language could hardly indicate more plainly the intent that it shall be mandatory. Besides being absolute in form, it contains a prohibitory clause,-"and no further proceedings shall be had therein." Such a negative cannot be, and never has been, considered as directory mere ly. I see no point in the suggestion, as applied to this case, that such a statute is unconstitutional, so far as made applicable to pending suits. The most that could be claimed would be that in such case a party would be allowed the entire period of three years after the law took effect. Here three years was allowed to pass after the statute took effect before the summons was filed. As authority for this construction we have the following cases in regard to the representative effect of statutes of limitation: Nelson v. Nelson, 6 Cal. 430; Lehmaier v. King, 10 Cal. 373; Scarborough v. Dugan, Id. 305. But it is contended by respondent that by taking and filing the stipulation extending the time to answer, and by accepting and acting upon the agreement to grant successive extensions in consideration of certain payments made, defendant appeared in the action. Section 1014, Code Civ. Proc., defines what shall constitute an appearance. A defendant appears in an action when he answers, demurs, or gives written notice of his appearance, or when an attorney gives notice of an appearance for him; and he can appear in no other way. This statute was intended to settle all disputes upon the subject. There can be no chance for argument about unequivocal acts. State v. McCullough, 3 Nev. 202, seems to be the other way, but the reasoning is far from satisfactory. There was no need of a statute to tell us that the acts specified would constitute appearance. The occasion for a rule was to dispose of questions upon which there might be dispute. There was no such appearance in this case. The defendant entered into no stipulation in regard to the case. Plaintiff granted him certain privileges, reserving the right to enter default and judgment in case defendant failed to comply with the conditions. These facts would constitute a good showing against a motion to dismiss for lack of prosecution if it were not for the mandatory statute. In the case of Kreiss v. Hotaling, 99 Cal. 383, 33 Pac. 1125, the question was whether the amendment to section 581 of the Code of Civil Procedure, above referred to, prohibited the court from an exercise of its discretion in dismissing a case for want of prosecution before the expiration of three years. It was held that the new statute did not interfere with the discretion of the court in that respect. It is next contended that when the administrator appeared and answered the supplemental complaint he waived the objection. It is unnecessary to decide the point made that the court lost all jurisdiction in the case, and that no further proceedings could be had, even by consent of both parties. Here the defendant was an administrator. The claim of plaintiff was barred by the statute of limitations. The administrator is prohibited from allowing or paying any claim which is barred. To waive the objection here would be to allow such a claim to be collected. In other words, the administrator would be voluntarily paying a claim which is barred. No such consent could be given so as to bind the estate. This rule is applicable to all trustees. Emerson v. Thompson, 16 Mass. 428; Bank v. Wright, 8 Allen, 121; Manufacturing Co. v. Barnes, 48 N. H. 25; Rhoads v. Rhoads, 43 Ill. 239; Lenox v. Notrebe, Hempst. 251, Fed. Cas. No. 8,246c. The judgment is reversed, and the cause remanded, with directions to dismiss the suit. We concur: MCFARLAND, J.; HENSHAW, J. (30 Or. 59) NEVADA DITCH CO. v. BENNETT et al.1 (Supreme Court of Oregon. June 29, 1896.) IRRIGATION-CLAIM OF APPROPRIATION-REASONABLE DILIGENCE-USER-BENEFICIAL PURPOSETRANSFER OF CLAIM-INTENTION-PUBLIC USEGRANT-EXCEPTION. 1. In an action to determine plaintiff's water right, and to restrain defendants from interfering therewith, the rights of defendants, as between themselves, are not subject to determination, except so far as, between themselves, they have tendered and joined hostile issues. 2. In the early summer of 1881, persons claiming an appropriation of water from a public stream posted a notice at the head of the proposed ditch, as required by local custom, stating the amount of water claimed, the pur poses for which it was to be applied, and the route and terminals. Work was begun shortly afterwards, and a dam was built and a diversion made for the purpose of aiding in the excavation. The first section, two miles long, was completed in the spring of 1882. During 1882 the ground was cleared for the excavation of the second section to the further terminal. In the spring of 1883 the work was prosecuted till the irrigating season, when it was stopped to permit the use of water through the completed portion. It was resumed in the fall, and continued till the completion of the second section, in the spring of 1884; and during that year water was run through the full length of the two sections,-nine miles,-and used for irrigation purposes. Held, that the cla mants, who were pioneers, and of limited means and facilities, exercised due and reasonable diligence in the prosecution of the work. 3. In such case the appropriation dates back to the first steps taken in the construction of the ditch. 4. A claim to a water right ripens into a valid appropriation when there is an actual user for a beneficial purpose. 5. The claimant is entitled to a reasonable time, after he has diverted and carried the water to the place of use, in which to make the actual application to the contemplated useful purpose, using reasonable diligence under the circumstances. 6. Where a person who initiated the appropriation, but has not yet completed it, transfers the possessory title to which the water right was appurtenant, his successor can complete the appropriation. 1 Rehearing denied. 7. The bona fide intention which is required of the appropriator to apply the water to some useful purpose may comprehend a use to be made by or through another person, and upon lands and possessions other than those of the appropriator. 8. Persons contemplating a use, not only to be applied by themselves, but by such others as might come in, claimed an appropriation of water over public lands. They sought to induce immigration by diverting the water, and carrying it to such localities as would be convenient for use. They completed the ditch with reasonable diligence, and, within a year thereafter, users were ready and wil.ing, with sufficient lands to absorb the appropriation by application to a beneficial use. Held, that there was sufficient diligence in the application of the use to prevent the appropriation from lapsing. 9. The fact that one of the three originators of the plan dropped out did not affect the extent of the appropriation claimed, but it all inured to the benefit of those who carried on and completed the construction of the ditch. 10. A public use of water from a public stream by the government does not become appurtenant to the soil, so as to pass with it in a grant to private individuals; but such use is thereby abandoned, unless a like use is, by special and competent stipulations, passed to the grantee. 11. One who derives title through a patent from the government, "subject to any vested and accrued water rights," is estopped from claiming as an appurtenance an appropriation of water from a public stream which ba been used by the government, as against any persons who acquired rights, as appropriators, prior to the issuance of the patent. Appeal from circuit court, Malheur county; Morton D. Clifford, Judge. Action by the Nevada Ditch Company against George E. Bennett and others to determine the quantity and priority of plaintiff's appropriation of water from the Malheur river, and to restrain defendants from interfering with its use. From the judgment and decree of the circuit court, plaintiff and certain defendants appeal. Modified. This is a suit instituted August 15, 1893, for the purpose of establishing the date and extent of plaintiff's appropriation of water from the Malheur river, in Malheur county, Or., and to enjoin the several defendants from in any way using the waters of said stream so as to interfere with the full and free use of its appropriation. The Malheur river is a perennial, nonnavigable stream, taking its rise in Harney county, Or., having for its tributaries what are known as the "North Fork" and "Middle Fork" of the Malheur river. Its general course is northeasterly across the county of Malheur until it empties in the Snake river. The Malheur valley contains a large body of arid lands, but arable and productive with the use of water. Above the main valley are to be found several small valleys, subject to irrigation from the river or its tributaries. These lands, in their natural state, are generally covered with a growth of sagebrush, and what is commonly termed "greasewood," among which is produced native grasses. The most prevalent is the bunck |