counted the notes upon any representations even of Eigholz or Swan that either of them had authority to discount the note or sign the name of the company. The instruments were payable to Eigholz alone and not in any representative capacity, and the record is silent as to any inquiry by plaintiff of Eigholz's authority when he assumed to use the name of the piano company as indorser; plaintiff seems to have taken it for granted that Eigholz had the authority which he exercised, and if he made any representations in this regard they do not appear. It is true that the instruments mentioned the consideration to be "a Heine Piano No. 11,334," but Eigholz may have owned the piano and sold it on his own account, so far as plaintiff knew, when it discounted the paper. Indeed, the instruments recite that title to the piano is to remain in Eigholz until they were paid. In accepting the indorsement of a stranger to the paper (the piano company), it was plaintiff's duty to know that the indorsement was authorized. Nor did the fact that Eigholz took a draft for part of the money in the name of the company, and that the company collected the draft, necessarily imply that the company had full knowledge of the transaction.

There is no brief on file for respondents other than the piano company. The judgment is that plaintiff take nothing by the action. The specifications are directed exclusively to the question of the piano company's liability. But it is claimed that the maker of the notes should be held liable as well as the piano company. The court found that Mrs. Nicholas executed the instruments, that the plaintiff is the owner and holder thereof, "and that the same have not been paid nor any part thereof." We cannot see upon what theory the defendant, Mrs. Nicholas, escapes liability, nor why judgment should not have been given against her. As to defendant Eigholz, plaintiff claims nothing, and we suggest nothing as to his liability. But certainly, as between the owner and holder of the evidence of indebtedness and the maker who has received full consideration, there is a clear and unmistakable liability. Mrs. Nicholas, in her answer, admitted the execution of the instruments, but averred that there was an agreement between her and Eigholz that no interest was to be charged, and that if the notes provide for the payment of interest it was without her knowledge or con

sent. She submitted no evidence in support of this issue. The court found that she executed and delivered the instruments to Eigholz, which is a finding on the issue sufficient to support a judgment in connection with the other findings. The judgment in so far as it affects the defendants Heine Piano Company and Eigholz is affirmed, and as to defendant Mrs. Charles Nicholas it is reversed, with directions to enter judgment against her as prayed for in the complaint. The order denying the motion for a new trial is affirmed.

McLaughlin, J., and Buckles, J., concurred.

[Civ. No. 115. Third Appellate District.-October 17, 1905.] MENDOCINO

COUNTY, Respondent,
PETERS, Appellant.

V. WILLIAM

EMINENT DOMAIN-WIDENING OF HIGHWAY-PUBLIC USE.-An action will lie to condemn land for the alteration of a public road by widening the same. The widening of a public highway is a public

use.

ID.-SUFFICIENCY OF COMPLAINT COMPLIANCE WITH LAW.-Where the nature of the alteration, the location, general route and termini, the description of land sought to be taken, and its relation to the larger parcel of which it was a part, are fully set forth in the complaint, and in the map attached to and made a part thereof by express reference, as well as by the law, and the complaint shows a strict compliance with section 2681 et seq. of the Political Code, including sections 2688 and 2689 thereof, it shows all that the law requires; and a demurrer thereto was properly overruled.

ID. RECORD UPON APPEAL BILL OF EXCEPTIONS-DELAY IN NOTICE OF INTENTION-RECITAL IN BILL AGREED SETTLEMENT-WAIVER OF OBJECTION.-A notice of intention to move for a new trial which shows that it was served and filed too late, if not included in the bill of exceptions settled on the motion, is no part of the record, and a recital in the bill that such notice was seasonably served and filed must prevail over the notice of intention; and where the bill also recites that it was presented in time, and attached thereto is a stipulation that it be settled as correct, all objection to the notice of intention must be deemed waived.

L.-RECORD NOT AMENDABLE-REVIEW UPON APPEAL.-This court cannot change the authenticated record on the motion for a new trial;

and will not order a diminution of the record to amend the bill of exceptions on motion of the respondent, who cannot urge the objection thereto thus waived; and the bill of exceptions settled on the motion may be considered on an appeal from the judgment. ID.-AUTHENTICATION OF NEW TRIAL ORDER.-The order refusing a new trial need not and could not be included in the bill of exceptions; and it is sufficiently authenticated by the certificate attached to the transcript that a true and correct copy of the order is therein contained.

ID. PLEADING INSUFFICIENT DENIALS-WANT OF INFORMATION AND BELIEF MATTERS OF RECORD-ADMISSIONS OBJECTIONS TO EVIDENCE. Denials of the averments of the complaint touching the report of the viewers, the notice of hearing, and the various orders and proceedings of the board of supervisors, which are matters of public record, based on want of information and belief, are wholly insufficient, and such averments stand admitted; and consequently assignments of error based on rulings pertaining to evidence in this behalf need not be considered.

LD.-EFFECT OF ORDERS ADOPTING REPORT AND DIRECTING ACTION-ASSAULTS UPON PETITION AND REPORT-EVIDENCE-The orders passed by the board of supervisors, adopting the report of the viewers, and directing the district attorney to bring the action for condemna tion of land for the widening of the highway, foreclose inquiry touching many assaults made upon the sufficiency of the petition and report, which were properly admitted in evidence.

ID. REPORT OF VIEWERS—INABILITY TO ASCERTAIN DAMAGES-CURE OF IRREGULARITY.-Where the report of the viewers states their inability to ascertain the damages claimed by the appellant, they were not required to report the damages, and their failure to do so, if an irregularity, was cured by the orders of the supervisors. ID.-EVIDENCE-AUDITOR'S WARRANT.-The auditor's warrant was admissible in evidence upon the trial of a fact in dispute relative thereto.

ID.-HARMLESS ERROR-EVIDENCE OF DISMISSED PROCEEDING FOR CERTIORARI. The admission in evidence of the record in a proceed. ing for certiorari, instituted by the appellant, in which the writ was dismissed, conceding it to be erroneous, was harmless.

ID. ADMISSION OF OWNERSHIP OF LAND-RIGHT TO OPEN AND CLOSE.Where the ownership of the land was not in issue, being admitted by the answer, the defendant had no right to open and close the argument, which devolves upon the plaintiff, under section 607 of the Code of Civil Procedure.

APPEAL from a judgment of the Superior Court of Mendocino County, and írom an order denying a new trial. J. Q. White, Judge.

The facts are stated in the opinion of the court.

Welden & Held, for Appellant.

U. S. Webb, Attorney General, and Robert Duncan, District Attorney, for Respondent.

MCLAUGHLIN, J.-This is an action to condemn a strip of land for the alteration of a public road by widening the same. The action was dismissed as to H. N. Peters, and judgment condemning the land for the purpose mentioned was entered. Defendant William Peters appeals from such judgment and from the order denying his motion for a new trial.

The demurrer to the comp.aint was properly overruled. We cannot concur in the view that widening a public highway is not a public use. (Code Civ. Proc., sec. 1238, subds. 3, 4; Pol. Code, sec. 2681; County Government Act, sec. 25, subd. 4 (Gen. Laws 1903, p. 121).) The nature of the alturation, the location, general route, and term.ni, the description of land sought to be taken, and its relation to the larger parcel of which it was a part, are fully set forth in the complaint, and in the map attached to and made a part thereof by express reference, as well as by the law. (Code Civ. Proc., sec. 1238; San Francisco etc. R. R. Co. v. Gould, 122 Cal. 603, [55 Pac. 411].) There is no force in the contention that the facts pleaded do not show that sections 2688 and 2689 of the Political Code were complied with. It appears from the complaint that a hearing was had after due notice, and that appellant was represented at such nearing by his attorney; that the report of the viewers was there and then approved, and the damages ascertained and by order declared and awarded to defendants; that the county treasurer was at the same time and place ordered to set apart the amount so awarded and declared; and that the auditor was directed to draw his warrant on the treasurer in favor of defendants for said amount. It further appears that the amount was set apart and the warrant drawn pursuant to the orter of the board, and that the defendants for ten days thereafter refused, and at the time of filing the complaint still refused, to accept such amount. This is all that the law requires. (Pol. Code, secs. 2688, 2689; Code Civ. Proc., sec. 1963, subds. 15-20; County of Sonoma v. Crozier, 118 Cal. 682, [50 Pac. 845]; Siskiyou County v. Gamlich, 110 Cal. 94. [42 Pac. 468]; Glenn County v. Johnson, 129 Cal. 406,

[62 Pac. 66]; County of Sutter v. Tisdale, 136 Cal. 476, [69 Pac. 141].) In fact, the complaint shows a strict compliance with section 2681 et seq., of the Political Code in every essential particular.

Respondent takes the position that the record on appeal from the order refusing a new trial is insufficient, and that the bill of exceptions used at the hearing of such motion cannot be considered on an appeal from the judgment, for the same reasons that render the appeal from the order ineffectual. It is first objected that the notice of intention to move for a new trial was not served or filed within the time allowed by law. The bill of exceptions recites that such notice was seasonably served and filed, but the notice of intenticn found in th record shows that it was filed one day after the time had expired. The notice of intention is no part of the record, and the recital in the bill of exceptions must therefore prevail. (Nye v. Marysville, 97 Cal. 462, [32 Pac. 530]; Downing v. Le Du, 82 Cal. 472, [23 Pac. 202]; Monterey County v. Cushing, 83 Cal. 509, 23 Pac. 700].) It is suggested, by way of diminution of the record, that the bill of exceptions be amended in this particular, but it is well settled that a record authenticated by the trial court cannot be changed by the appellate court. (Satterlee v. Bliss, 36 Cal. 521; Boyd v. Burrel, 60 Cal. 284; Bonds v. Hickman, 29 Cal. 465; Boston v. Haynes, 31 Cal. 107; Warran v. Hopkins, 110 Cal. 509, [42 Pac. 986]; In re Lamb, 95 Cal. 408, [30 Pac. 568].) Moreover, it does not appear that any such objection was urged at the time the notice was served, or when the bill of exceptions was settled, and under the authorities it must be considered as waived. (Hobbs v. Duff, 43 Cal. 491; Schieffery v. Tapia, 68 Cal. 185, [8 Pac. 878]; Simpson v. Budd, 91 Cal. 491, [27 Pac. 758]; Hibernia v. Moore, 68 Cal. 156, [8 Pac. 824].) The bill of exceptions recites that it was presented in due time, and attached thereto is a stipulation that it be settled as a "correct bill of exceptions. Respondent cannot here urge an objection thus waived. The record on appeal from the order refusing a new trial contains the judgment-roll, the bill of exceptions used at the hearing, and a copy of the order refusing a new trial. This is all the law requires. (Code Civ. Proc., sec. 661) The order last mentioned having been made after the bill of