the legislature which enacted the act of 1872. Both are used in the act. If both were the same in meaning, why alter the form of the words used. The language of the statute is clear and unambiguous, and in such case the argument as to results is entitled to little weight. As this view is decisive of the cause, it is unnecessary to consider the other questions ably discussed on the argument. I am of opinion that the applicant is entitled to the writ of prohibition prayed for, and it is accordingly ordered to be issued. MCKINSTRY, J., CONCURRING. I concur in the judgment. The act of March 21, 1872-Statute of 1871-72, page 443-is unconstitutional and void: Spencer Creek Water Company v. Vallejo, 48 Cal., 70. MYRICK, J. I concur in the judgment on both grounds mentioned in the opinions of my associates. No. 8,430. WHITE v. CONWAY ET AL. Department One. Filed January 27, 1885. DISSOLUTION OF PARTNERSHIP-FINAL JUDGMENT STATUTE OF LIMITATIONS.-Where a judgment settling partnership accounts, provides for a dissolution of the partnership, and orders that the partnership property be sold, and the proceeds applied to the payment of an indebtedness due to one partner, and that judgment for the balance of such indebtedness, if any, be entered against certain of the partners, the statute of limitations does not commence to run against such judgment until such balance has been ascertained and entered. Until that is done, the judgment is not final. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states the facts. E. I. Hutchinson, for the appellants. MCKEE, J. The subject matter of the action in hand is a judgment which, it is alleged, was rendered against the defendants, and docketed on the sixteenth of June, 1874. The action was brought on the twenty-sixth of May, 1879, within five years from the date of the judgment; therefore, the action was not barred by the statute of limitations. But it is contended that the judgment is not a final judgment upon which an action is maintainable, but is merely an order made after the final judgment which was given in the case; and as that was rendered more than five years before the commencement of this action, the cause of action is barred. It appears that on the fifteenth of April, 1871, James H. White, respondent, brought an action against Edward Conway, Theodore Snell, O. W. Easton, and forty more defendants, for the dissolution of a partnership then existing under the firm name of E. Conway & Co., an accounting between the partners, sale of the partnership property, payment of the amount which might be found due to the plaintiff upon such accounting, and for general relief. After the taking of an account by a referee, to whom the action was referred for that purpose, the court, upon the report of the referee, on the thirteenth of November, 1873, found there was due and owing to the plaintiff twelve thousand four hundred and eighty-six dollars and forty-five cents, for which, after decreeing a dissolution of the partnership, judgment was entered, with costs, in favor of the plaintiff and against E. Conway & Co., and the partnership assets were ordered to be sold, and the proceeds of sale applied as follows: "That one-half of the proceeds of said sale be paid to said plaintiff, and the parties claiming shares in the firm of E. Conway & Co., by assignment from plaintiff and said O. W. Easton, in proportion to interests which they respectively hold in said one-half. "That out of the remaining one-half there be paid to said plaintiff, White, the sum of ($12,486.45) twelve thousand four hundred and eighty-six dollars and forty-five one-hundredth dollars in United States gold coin, the amount above found to be due him, and in case there should not be sufficient arising from said sale to pay said amount to said White, that then and in that case, said White have judgment against Edward Conway and Theodore Snell for such deficiency, for which execution may issue." Under that judgment the partnership assets were sold; the proceeds of sales amounted to one thousand eight hundred dollars, and upon being applied according to the provisions of the judgment, there was found to remain of said judgment a balance of twelve thousand four hundred and ninety-three dollars and seventeen cents, for which the court, on the sixteenth of June, 1874, upon motion of the plaintiff's attorney and without notice to the defendants, rendered judgment as follows: "It is ordered, adjudged and decreed that the said balance of twelve thousand four hundred and ninety-three dollars and seventeen cents gold coin, of said judgment, is a personal judgment against said defendants, Edward Conway and Theodore Snell, to be collected from their joint property, if any joint property can be found, and if there cannot be found any joint property, then from the separate property of either the said Edward Conway or Theodore Snell, in gold coin, and the clerk of this court is hereby authorized and directed to docket a personal judgment against said defendants, Edward Conway and Theodore Snell, for said balance of said original judgment of twelve thousand four hundred and ninety-three dollars and seventeen cents, gold coin, and to issue an execution or executions therefor, against their joint property, and in case no joint property of said parties can be found, then against the separate property of either of them, with interest at seven per cent. per annum. Upon this last judgment the action is founded. This being the case, the question arises which of these judgments is the final judgment. In Clark v. Dunham, 46 Cal., 208, it was held that a judgment, dissolving a partnership, ascertaining the sum of money due by the copartners to the plaintiff, and ordering a sale of all the partnership property and effects, out of the proceeds of which the court directed, among other things, payment of the amount due to the plaintiff, and distribution of any surplus among the co-partners in the manner fixed by the decree, was a final judgment. "It," says the court, "ascertained and adjudged * * * the whole matter in litigation. Nothing thereafter remained to be done, except to execute the decree by a sale of the property and a distribution of the proceeds in the manner fixed by the decree itself. This was a mere ministerial duty, and nothing was left for the court to do except to see that the decree was properly executed." But such a decree is only final, if all the consequential directions depending upon the result of the referee's report are contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the entire and full benefit of the previous decision of the court: Beebe v. Russel, 19 How., U. S. 285; Bostwick v. Brinkerhoff, 16 Otto, 3; Clark v. Brooks, 2 Abb., 405. By the first decree in the case, the court adjudged that the plaintiff was entitled to relief, for the money found to be due him by E. Conway & Co., against the partnership property, and also against two of the co-partners. One of the objects of the reference was, therefore, to ascertain how far the proceeds of sales of the partnership property would go towards satisfaction of the plaintiff's demand, in order that a personal judgment might be entered in his favor against the two co-partners for the balance. This could only be done upon the report of the sales of the partnership property; and, upon the confirmation of the report, the final judgment, necessary to give the plaintiff the full benefit of the previous decree, was, according to the provisions of the decree itself, to be entered. The judgment thus provided for by the decree, and which was afterwards entered, cannot be regarded as a mere order to carry the former decree into effect, for the former decree did not fix the extent of the liability of the co-partners against whom it was to be rendered; that could not be done until the deficiency from the sale of the partnership property was ascertained and determined; it was therefore reserved by the court until the coming in of the report of sales which was to serve as the basis upon which the court would proceed to render judgment: Ryan v. McLeod, 9 Rep., 493. That judgment when rendered finally disposed of the whole merits of the cause according to the former decision of the court. It was the only personal judgment entered against the defendants therein named; and the only judgment in the case against them enforceable by execution or action: Seligman v. Kalkman, 17 Cal., 152. As such it was the final judgment in the cause, and until it was rendered no cause of action accrued in favor of the plaintiff. The statute of limitations commenced to run upon it and not upon the former decree, which, in its relation to the judgment in suit, was merely interlocutory. Judgment and order affirmed. MCKINSTRY, J., and Ross, J., concurred. No. 9,871. PEOPLE ex rel O'DONNELL v. BARTLETT, Mayor, etc. Department Two. Filed January 27, 1885. MANDAMUS-RESOLUTION OF SUPERVISORS REPEAL OF.-Where an alternative writ of mandamus is issued to enforce a right based on a resolution of the board of supervisors, which is afterwards repealed, the writ must be dismissed. MANDAMUS to compel the defendants to provide a place for a public morgue for the city and county of San Francisco. W. A. Cornwall, for the petitioner. John L. Love, for the respondent. THE COURT. The relator bases his claim on a resolution of the board of supervisors, passed in the month of December, 1884. It appears by the answer of respondent that said resolution was afterwards, and before the filing of said answer, repealed by said board. It, therefore, follows, that the alternative writ heretofore issued, must be discharged and the proceeding be dismissed. And it is so ordered. No. 7,989. HALL V. SHOTWELL ET AL. Department One. Filed January 27, 1885. DESCRIPTION IN DEED SUFFICIENCY OF-EXCEPTION-The following description of a particular tract of land, excepted from a conveyance of a larger tract, is sufficiently definite for location, namely, two hundred acres in a square form, bounded by the bay of San Francisco on the west side and the Embarcadero creek on the north side, said bay and creek being at right angles to each other. THE SAME DESIGNATED ACRES HOW LOCATED.-Where there is not a sufficient certainty and demonstration of the land granted, expressed in the other terms of its description, the number of acres is an essential part of the description. And, if a deed conveys a given quantity of land, and describes it as bounded on a stream, on one side, starting at a given point and running along the stream, without specifying the length of the lines, the required quantity of land is to be located by following the meanderings of the stream from the point named until, reduced to a straight line, the straight line will be of sufficient length to form a square which would contain the required quantity; and then, from the ends of this straight line, projecting lines at right angles with the same to such distance as a line drawn from one to the other parallel with the straight line, will include the required quantity between it and the stream. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendants, and from an order denying the plaintiff a new trial. The opinion states the facts. B. S. Brooks and Gearge Leviston, for the appellant. Walter Van Dyke and A. N. Drown, for the respondents. MCKEE, J. This was an action to determine adverse claims to a strip of land in that portion of the city of Oakland on which were laid out the towns of Clinton and San Antonio. When those towns were laid out, the land in dispute was situate on both sides of a small slough or creek, called Embarcadero creek, which ran into the estuary of San Antonio, at what was known as the Embarcadero of San Antonio. At the commencement of the action there was on the bed of the creek, from Washington street to the Embarcadero, a street about sixty feet wide, called Commerce street, opened, graded and macadamized. The land includes the street and lands on each side of it in the possession of the defendants, who claim title to their several possessions by mesne conveyances from James B. Larue. On the other hand, the plaintiff claims title to the parcels of land in possession of the defendants under a deed, dated the twentyeighth of February, 1878, from Eugene Sullivan to Horace W. Carpentier. That deed purports to convey "all the pieces, parcels and fractions of land, if any, not heretofore sold and conveyed by me, within the boundaries of that certain tract of land described in a certain deed from Antonio M. Peralta to Charles B. Strode, dated February 2, 1853, and recorded in book 2 of Land Titles, pages 435 and 436, in the recorder's office of Contra Costa county; that is to say: Extending from the Sausal creek to Indian creek or gulch, and from the summit of the mountains to the bay of San Francisco.' But Strode, on the day he acquired his title to that tract of land mortgaged it back to Peralta, to secure him in the payment of an unpaid balance of the purchase money; at the same time, he excepted from the mortgage a portion of the general tract, containing two hundred acres, which were described as follows: "Two hundred acres of land at Embarcadero of San Antonio, which are situated as follows: Lying on the south side of the creek that empties into the bay at the said Embarcadero, which creek shall be the northern line of said two hundred acres; and the bay of San Francisco, the estuary of San Antonio, being the westerly line, and the said two hundred acres to be in a square form." Strode, therefore, was the absolute owner of this tract; and he subsequently conveyed it by deeds to Brady and Larue, the remote grantors of those of the defendants who, under them, are now in possesion of portions of it. Of the general tract, Sullivan, the grantor of the plaintiff, acquired title by purchase under the Strode mortgage; but he never acquired title, nor claimed to have acquired title, to the particular tract excepted from the mortgage, and conveyed by Strode to Brady and Larue; on the contrary, this tract was excepted by Sullivan from the operations of the subsequent conveyances of the general |