tract between himself and the prior grantees of Strode, who took their deeds, subject to the Strode mortgage.

But the plaintiff's contention is that the particular tract was not segregated from the general tract by a sufficient description, and therefore the legal title did not pass by the conveyances from Strode to Brady and Larue, so that the defendants who deraign title from them, took nothing more than an equity-a mere right to locate the quantity of two hundred acres in the general tract.

The contention is not maintainable. The description of the particular tract is sufficient for location. By the terms of the description, form and quantity are expressed, i. e., two hundred acres in a square form; the bay of San Francisco is designated as one of the sides of the square, i. e., the westerly side, and the Embarcadero creek as another side, i. e., the northerly side-each being at right angles with each other; the Embarcadero on the bay of San Francisco, being the point of connection between them.

Now, it is well settled, 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, as was said by the court in Hicks v. Coleman, 25 Cal., 142, "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." An application of this rule to the description in question, determines the sufficiency of the location of the two hundred acre tract which Strode excepted from his mortgage to Peralta, and conveyed to the grantors of the defendants; and as Strode's title passed out of him to them, prior to the conveyances under which the plaintiff claims, they are the rightful owners of the land, south of Embarcadero creek, of which they are in possession.

As to that portion of the land in dispute north of the Embarcadero creek, Strode, when he acquired title to the general tract, took it subject to certain lease-hold interests held by persons in possession north and south of the creek. Of those persons, Larue and Brady were in possession south of the creek, and J. F. and William Patten and M. Chase north of the creek-the creek being the boundary line between their possessions. Having obtained the legal title, Strode entered into arrangements with them for the surrender of their leases. For that purpose he excepted from his mortgage back to Peralta, the two hundred-acre tract south of the creek, which included the respective possessions of Brady and Larue, and, first of

all, subsequently conveyed to them undivided interests therein. Afterwards he agreed in writing with the Pattens and Chase to convey them undivided interests in the four hundred and eighty acres of land, of which they were in possession, bounded on the south by the Embarcadero creek. That agreement was subsequently fulfilled by Strode's immediate grantees of the general tract, who, with the Pattens and Chase, divided the land into blocks and lots of the town of Clinton, as designated on the map of said town, and made partition of the same between themselves. In that partition there was allotted to the Pattens and Chase, and to one of the Strode grantees, two blocks of land, as designated on the map of the town, which include the parcels of land of which the defendants, north of the Embarcadero creek, are in possession. These blocks were afterwards conveyed by their owners in severalty under the partition to the remote grantors of these defendants; and the conveyances were afterwards ratified and confirmed by Sullivan, the plaintiffs grantor, and the other proprietors of the town of Clinton, by two quit-claim deeds, one dated September 5, 1854, and the other August 6, 1855, which bounded the lands by the "slough" or "creek," known as the Embarcadero creek; therefore Sullivan had no title to the lands in dispute on the north side of the creek, on the twenty-eighth of February, 1878, the date of his deed to the plaintiff; and as no title to any part of the lands passed by that deed to the plaintiff, judgment was properly entered for the defendants.

Judgment and order denying the motion for a new trial affirmed. Ross, J., and MCKINSTRY, J., concurred.

No. 9,354.

MEYCAN V. CHABRIE.

Department One. Filed January 28, 1885.

DISMISSAL OF APPEAL-INSUFFICIENCY OF SURETIES.-An appeal will not be dismissed for insufficiency of the sureties on the appeal undertaking, if a new undertaking is filed approved by the court.

MOTION to dismiss an appeal from the superior court of Inyo county, on account of the insufficiency of the sureties on the undertaking on appeal.

Reddy & Conklin, for the appellant.

J. W. P. Laird, for the respondent.

THE COURT. On the authority of Schacht v. Odell: 52 Cal., 449, the motion to dismiss the appeal is denied.

No. 7,223.

JACKSON v. LOGAN.

In Bank. Filed January 28, 1885.

WHERE THE EVIDENCE IS SUBSTANTIALLY CONFLICTING the findings will not be disturbed. APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendant, and from an order denying the plaintiff a new trial. This was an action to recover commissions for procuring a purchaser of certain real estate. The court found that no such purchaser had been procured. On this point the evidence was conflicting.

Walter Van Dyke, for the appellant.
Sawyer & Ball, for the respondent.

THE COURT-THORNTON, J., DISSENTING.

There was a substantial

conflict in the evidence bearing on the material findings of fact in the decision of the court below. Judgment and order affirmed.

No. 8,138.

ESTATE OF GHARKY, Deceased.

In Bank. Filed January 28, 1885.

ESTATE OF DECEASED PERSONS-SALE OF REAL ESTATE-PETITION FOR-AMENDMENT OF PETITION. The petition for the sale of a decedent's real estate must contain a general description of all the real estate of which the decedeat died seized. If such petition is deficient in this respect, it cannot be amended at the hearing, so as to make an order of sale based thereon valid, without further notice. The court should treat the petition when amended as a new petition, and proceed de novo.

APPEAL from an order of the superior court of Santa Cruz county. The petition states the facts.

Charles B. Younger, for the appellant.

W. D. Storey, for the respondents.

MYRICK, J. Appeal from an order directing the sale of real estate of the testator. The executor described in his petition for the sale, ten parcels of real estate; and due notice was given of the day fixed for the hearing. On the day fixed for the hearing the executor moved the court for leave to amend the petition by adding another parcel of real estate, which motion was granted; the petition was accordingly amended, and, as amended, was reverified on that day. Thereupon, without further notice, the court made an order for sale of real estate, which order is appealed from. On the argument in this court it was not contended that the description of the added parcel was not in the inventory of the property of the estate.

It was error to make the order of sale on the petition as amended without further notice. The petition must contain "a general de

scription of all the real property of which the decedent died seized:" Section 1,537, code of civil procedure. As well might the executor give a description of one parcel, and at the hearing add ten others, as to give ten and at the hearing add one. The court should have treated the petition when amended as a new petition, and have proceeded de novo.

Order reversed and cause remanded for further proceedings. Ross, J., THORNTON, J., MCKEE, J., MORRISON, Č. J., McKINSTRY, J., and SHARPSTEIN, J., concurred.

No. 7,130.

ALEXANDER V. MUNICIPAL COURT OF APPEALS.

In Bank. Filed January 28, 1885.

MUNICIPAL COURT OF APPEALS-DISMISSAL OF APPEAL-CERTIORARI.-The municipal court of appeals of the city and county of San Francisco had power to dismiss an appeal for failure to prosecute it, under section 980 of the code of civil procedure. An erroneous dismissal of an appeal, for such failure, cannot be reviewed on certiorari.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the respondent. The facts appear in the opinion, and in the opinion of department one, reported 4 West Coast Rep., 299.

R. Percy Wright, for the appellant.

Jos. Rothschild, for the respondent.

SHARPSTEIN, J. The respondent had the power to dismiss an appeal for a failure to prosecute it, or unnecessary delay in bringing it to a hearing: C. C. P., 980.

Said court dismissed the appeal in Rothschild v. Alexander "for want of prosecution." Conceding that the record does not show the existence of that or any other valid ground for the dismissal of the appeal, was such dismissal without or in excess of the jurisdiction of said court? If not, the order cannot be reviewed on certiorari. The court had the power to dismiss the appeal for a failure to prosecute it. And the question whether there had been a failure to prosecute it, was one which the court would have to decide whenever a motion was made to dismiss on that ground. The most that can be claimed in this case is that the court erroneously decided there had been a failure to prosecute. Because in case of a failure to prosecute a dismissal is expressly authorized. The question whether there had been a failure or not was one on which the court was authorized to pass, and if it decided correctly no question of jurisdiction could arise. And we think that none can arise where a court erroneously decides a question which it has the power to decide. To decide whether there has been a failure to prosecute an appeal requires the exercise of judgment. The code does not say what shall be deemed to constitute such a failure. It was therefore

the duty of the court to determine what did, and an erroneous decision of the question affords no ground for a review of the judgment on certiorari.

Judgment affirmed.

Ross, J., MORRISON, C. J., and MCKEE, J., concurred.

No. 8,539.

HOWELL v. HOWELL.

Department One. Filed January 29, 1885.

DEPOSITION ORDER SHORTENING TIME OF NOTICE-SERVICE OF "FORTHWITH."--An order shortening the time for taking the deposition of a witness, after service of notice upon the adverse party, must prescribe the time of notice. But an order providing for the taking of the deposition between certain hours of the day on which the same is made, and directing a service of the notice "forthwith" is not sufficient.

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 defendant a new trial. The opinion states the facts.

S. P. Hall, for the appellant.

Sawyer & Ball, for the respondent.

MCKINSTRY, J. On the thirteenth day of December the plaintiff herein presented to the judge a certain affidavit, upon which, on the same day (at what hour of the day does not appear), the judge made the order following:

"Good cause being shown to me therefor, by the foregoing affidavit, it is ordered that the deposition and testimony of the witness therein named be taken before William Harney, Esq., a notary public in the city and county of San Francisco, in the state of California, at No. 7 Stockton street, in the city and county of San Francisco, on the thirteenth day of December, 1878, at 4 o'clock in the afternoon of that day, and that a copy of said affidavit, and of this order, be served on the defendant's attorney forthwith."

A copy of the affidavit and order, together with notice that the deposition of the witness would be taken at the time and place, and before the officer mentioned in the order, was served on the attorney for defendant at 3 o'clock, P. M.

The certificate of the notary is to the effect that the deposition was taken at the time mentioned in the order," to wit, on the said thirteenth day of December, "between the hours of 2 P. M. and 5 P. M. of that day.

At the trial the defendant objected to the reading of the deposition, on the ground, amongst others, that no sufficient notice of the taking of the deposition had been served.

If the order of the judge was such as he had no power to make, notice of less than five days was not sufficient.