policy contains an express covenant that no officer of the company defendant shall be held to have waived any of its terms and conditions, unless the waiver shall be endorsed thereon in writing. Judgment and order reversed and cause remanded for new trial. MORRISON, C. J., and MCKEE, J., concurred.

No. 9,033.

RICHARDS, Administrator &c. v. WETMORE ET AL.

In Bank. Filed January 19, 1885.

SETTING APART HOMESTEAD-CANNOT BE HAD IN EJECTMENT. -In an action of ejectment brought by an administrator, the superior court has no power to set aside the land sought to be recovered, as a homestead for the minor children of the intestate. The superior court, sitting in such action, cannot assume the functions of the superior court, sitting in the matter of the intestate's estate, although both may be in the same county, with the same judge presiding.

APPEAL from a judgment of the superior court of Tuolumne county, entered in favor of the defendants. The opinion states the facts. Dorsey & Nicol, for the appellant.

Edwin A. Rodgers, for the respondents.

MYRICK, J. Ejectment by an administrator. The defendant, E. C. Wetmore, was the widow of the deceased; since the death of the deceased she intermarried with her co-defendant.

The court adjudged that the property was not subject to administration, and that the administrator was not entitled to the possession thereof, because the deceased left minor children who were entitled to have the premises set apart as a homestead; and the court made an order setting apart the said premises as a homestead for the use of said minor children. This was error. It is not for a court of law, in an action of ejectment, to set apart premises as a homestead; that function appertains to a court sitting in probate, in the matter of the estate of the deceased. The superior court, sitting in the case of Richards v. Wetmore, ejectment, could not assume the functions of the superior court sitting in the matter of the estate of Richards, deceased, even though both may be in the same county, with the same judge presiding.

We are not considering the effect of the will of deceased upon the right of the defendant, E. C. Wetmore, to the possession of the premises, nor the right of those of the children of the deceased who are minors to apply to the superior court sitting in probate to have the premises set apart as a homestead.

Judgment reversed and cause remanded for further proceedings. SHARPSTEIN, J., Ross, J., MCKINSTRY, J., MORRISON, C. J., and MCKEE, J., concurred.

No. 20,055.

PEOPLE V. PAPE.

In Bank. Filed January 20, 1885.

ASSAULT WITH DEADLY WEAPON-INDICTMENT FOR.-An indictment for an assault with a deadly weapon, which either avers that the instrument or thing was a deadly weapon, or states facts from which the court can see that it was necessarily such, sufficiently alleges the deadly character of such weapon.

THE SAME ASSAULT BY EXPLOSION OF POWDER.-One who attempts to commit a violent injury on the person of another, by means of the explosion of a keg of powder, is guilty of an assault with a deadly weapon, although he was not present when the explosion occurred.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered upon a verdict convicting the defendant, and from an order denying him a new trial. The opinion states the facts.

Robert Ash, for the appellant.

Attorney General, for the respondent.

THE COURT. It is not contended by appellant, but that the information sufficiently charges an assault with intent to murder. The jury found the defendant, appellant, guilty of an assault with a deadly weapon. The offense of which defendant was found guilty is included in that with which he was charged: People v. English, 30 Cal., 214. It is urged, the information fails to aver the assault was with a deadly weapon; that " a tin box filled with gunpowder" is not necessarily a deadly weapon. But the information charges that the tin box filled with gunpowder, wherewith it is alleged the assault was made, was a deadly weapon. The important part of the averment is that the weapon was deadly: People v. Congleton, 44 Cal., 92. Where the indictment either avers that the instrument or thing was a deadly weapon, or states facts from which the court can see that it was necessarily such, it would seem to be sufficient: People v. Jacobs, 29 Cal., 579.

It is further contended that an assault was not proved because the case shows defendant was not present when the explosion occurred. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another:" Pen. C., 240. It has been said that the attempt must be apparent: Wharton's Cr. L., sec. 603. But this does not mean that it must be apparent to the person against whom the assault is made, and it is no defense that the attack is made upon an unconscious person: Id., 612. Nor upon principle must it appear, to constitute the offense, the intent was that the injury should follow immediately on the act which is the attempt. If defendant placed the vessel containing gunpowder in the coal-bin of the prosecuting witness, it may be he might have been indicted for an attempt to murder, but his act was an assault. He had a present ability to do the act. There was evidence to sustain the verdict. Judgment and order affirmed.

No. 20.026.

PEOPLE v. WILSON.

In Bank. Filed January 20, 1885.

WHERE THERE IS EVIDENCE TO SUSTAIN A VERDICT, it will not be disturbed. ACTS DONE IN PRESENCE OF DEFENDANT--EVIDENCE OF.-In a prosecution for larceny evidence as to the acts of a person, committed in the presence of the defendant, are admissible.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered upon a verdict convicting the defendant of larceny, and from an order denying him a new trial. The opinion states the facts.

M. S. Horan, for the appellant.

Attorney General, for the respondent.

THE COURT. There was evidence in the case tending to show that the defendant was guilty. We cannot, therefore, disturb the verdict. The court below refused the following request of the defendant to charge the jury:

"You cannot take into consideration as against the defendant any act of Lizzie Crowley unless the people have proven to your satisfaction that a conspiracy had been entered into between her and the defendant to commit the crime of larceny, or to take the money of the complaining witness."

We find no error in this refusal. The acts of Lizzie Crowley admitted in evidence were committed while she was present with the defendant, and of themselves showed a connexion between them. Apart from any conspiracy between them to steal (of which there was no evidence), the testimony was pertinent and relevant, and therefore admissible.

Judgment and order affirmed.

No. 8,348.

WOOD v. BRADLEY ET AL.

Department One. Filed January 20, 1885.

FORECLOSURE OF ASSESSMENT LIEN-EXTINGUISHMENT OF PRIOR LIEN.-The foreclosure of the lien of a street assessment does not extinguish prior liens of the same nature, when such prior lien holders are not parties to the foreclosure action.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendant. The opinion states the facts.

J. M. Wood, for the appellant.

Parker, Shafter & Waterman, for the respondents.

Ross, J. Diggins v. Page was an action to enforce a street assessment lien that accrued July 10, 1875, against a lot of land in the

city and county of San Francisco. By virtue of a sale made under the judgment rendered in that action, the title of the owner of the lot vested in the plaintiff in the present action. But prior to the accruing of the assessment lien involved in the action of Diggins v. Page, the defendant in the present action acquired a street assessment lien upon the lot, which, when Diggins v. Page was commenced, he was proceeding to enforce by action entitled Brady v. Page. And having finally got a judgment declaring his lien, and directing a sale of the property to satisfy it, he, Brady, is sought by the present action to be enjoined from enforcing it upon the ground, as we understand counsel, that the foreclosure of the lien involved in Diggins v. Page extinguished all prior liens. It is not pretended that Brady was a party to the suit of Diggins v. Page, but it is sought to sustain the position by likening the foreclosure of a street assessment lien to a sale of property for the non-payment of taxes, and a conveyance thereunder.

"While the power of assessment comes from the general power of taxation it must not be confounded with it," said this court in Taylor v. Palmer, 31 Cal., 251. "In their origin and legal or constitutional complexion they are the same; but in the mode of their exercise and in the effect of such exercise upon the property of the taxpayer they are essentially different." Taxes are a public imposition, levied by authority of the government, upon the property of the citizen generally, for the purpose of carrying on the government, while the more restricted term " assessment" is usually, as it was in the present case, induced by the request, made known according to the provisions of the charter of the municipal government, of a majority of the inhabitants of the assessment district, and is levied for the benefit of the property situated within the particular districtthe assessment being an equivalent from the owner for the improvement made to the value of the property. Such assessments are not collected like public taxes, but generally, as in the case here, a particular mode of recovering the charge is pointed out by the statute. The statute in the present instance does not purport to attach to the proceedings for collection the effect claimed by appellant, and there are no considerations of public policy that require that it should be given.

Judgment affirmed.

MCKEE, J., and MCKINSTRY, J., concurred.

No. 9,661.

QUINBY V. BUTLER ET AL.

Department One. Filed January 20, 1885.

FOR ERRORS WITHOUT INJURY A JUDGMENT WILL NOT BE Reversed.

APPEAL from a judgment of the superior court of Los Angeles county, entered in favor of the defendants, and from an order denying the plaintiff a new trial. The opinion states the facts.

A. J. King, J. T. Richards and S. Haley, for the appellant.
T. J. De Puy, for the respondents.

THE COURT. The record shows, that the issues of fact raised by the pleadings in the action were submitted to the jury upon evidence given by the respective parties. Of these issues one involved the fact of a former recovery, and another of coverture of the plaintiff at the commencement of the action. The jury returned a verdict for defendants, and as the verdict may have been rendered upon one, or another, or all, of said issues, the assigned errors, of which the appellant complains, if errors at all, were errors without injury. Judgment and order affirmed.

No. 8,379.

FARRAGIARD ET AL v. SUPERIOR COURT.

In Bank. Filed January 20, 1885.

ISSUANCE OF EXECUTION-SATISFACTION BY ALLEGED ASSIGNEE. The superior court has jurisdiction to order an execution to issue on a judgment, notwithstanding a satisfaction thereof has been executed and acknowledged by an alleged assignee of the judgment.

APPLICATION for writ of review. The opinion states the facts.
A. D. Splivalo and William H. Mott, for the petitioners.
W. H. & J. R. Glascock, for the respondent.

THE COURT. The superior court had jurisdiction to order execution to issue, on the judgments in the actions Barillari v. Giovanni and Angelo Ferrea (upon application of the plaintiff herein), notwithstanding the satisfaction pieces executed and acknowledged by Giovanni Cordano, alleged to be an assignee of said judgments. Writ denied and proceedings dismissed.