and pelts, April killing, to be delivered on or about May 1, 1895. J. S. Purdy." By the terms of the contract the hides were to be paid for at 4% cents per pound; calfskins at 35 cents each; pelts (of sheep, it seems) at 4 cents per pound; tallow at 3% cents per pound. This is an action for damages for alleged breach of the contract by defendant in failing to deliver the goods. Verdict and judgment went for defendant.

At the trial there was evidence that defendant carried on his business at the town of San Bernardino, where the contract was made; that plaintiff resided elsewhere; and that, to obviate the necessity of plaintiff's coming again to San Bernardino, it was agreed that one Rittler should in his behalf receive, pay for, and ship the goods. On April

28th defendant notified Rittler that the hides would be ready for delivery at 9 o'clock in the forenoon of April 30th, and, accordingly, the latter attended at defendant's slaughter house at the time appointed. The evidence was quite conflicting as to what occurred there, but the testimony for defendant tended to show that Rittler objected to the condition of the salted hides, and said he could not receive them; that he would telegraph Herzog, the plaintiff, to come at once himself; also, that Rittler's objections to the hides were not well founded. Defendant said to him: "Herzog appointed you his agent to receive these hides, and they are shrinking every day they are here, and you have to take them now, or I will sell them to somebody else." Rittler refused. Both he and defendant forthwith sent telegraphic messages; Rittler summoning Herzog, defendant notifying a buyer of such commodities at Los Angeles that his hides were for sale. On the morning of May 1st the latter arrived, and defendant sold the hides to him. He sold also, to the same party, it seems, the other property he had previously bargained to plaintiff. Herzog arrived in San Bernardino in the afternoon of May 1st, and, being unable to find the defendant, announced at his shop that he was ready to receive the goods he had bought. On May 2d he repeated the offer to defendant personally, and was informed that they had been sold. There was evidence tending to show that on April 30th defendant had on hand, within the purview of the contract, 8,534 pounds of salted hides, 5,484 pounds of tallow, and a considerable number of pelts and calfskins. On said April 30th the market price of hides had advanced materially since April 11th, the date of the contract of sale. Defendant retained the payment of $200 he had received, claiming that it was forfeited to him. Admitting that Rittler's conduct might rightly be treated by the defendant as a positive and final refusal of such of the goods as the defendant offered to deliver, and that it was not rather an attempt to waive acceptance until, within the period fixed for delivery, Herzog might exercise his personal judgment in the matter, still

the evidence in the record fails to sustain the verdict. It has been seen that the prices to be paid by plaintiff were expressly apportioned to the several items of the property, so much per pound for hides; so much for tallow, etc. Such a contract of sale the law regards in general as severable, and we discover no evidence here to take the case out of the rule, nothing to show that the sale of one item was contingent upon the sale of the others, or that the contract was for other reason an entirety. Norris v. Harris, 15 Cal. 256, 257; More v. Bonnet, 40 Cal. 251; 2 Pars. Cont. (Sth Ed.) 633, 637. Now, the whole transaction between Rittler and defendant on April 30th had reference to salt hides only. There is no evidence to show that defendant ever offered or proposed to deliver any part of the property he had bargained to plaintiff except such hides. Counsel invoke for defendant's excuse in this behalf section 2076, Code Civ. Proc. That section requires the person to whom a tender is made to specify at the time any objection he has to the amount or kind of property tendered, or be precluded from objecting afterwards. But, while the ground stated by Rittler may have been a waiver of other objections for defect of quality or quantity of the salt hides, it could not operate to waive performance, or offer of performance, of other and independent provisions of defendant's agreement. Suppose Rittler had accepted, paid for, and taken away the salt hides, nothing being said as to the tallow, etc., thus giving the fullest possible effect to the defendant's tender; this procedure would certainly have been neither fulfillment nor waiver of the agreement for the purchase and sale of the other articles undelivered. We are also referred to the provision of section 1511, Civ. Code, that the want of an offer of performance is excused when the debtor is induced not to make it by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such offer may be made, and not rescinded before that time. But, in a case like the present at least, the conduct relied on as a waiver of tender should be tantamount to an explicit and positive refusal to receive. Hanson v. Slaven, 98 Cal. 377, 382, 33 Pac. 266. And, the contract being severable, it is impossible that the refusal of the salt hides could be a refusal of the other things. The rejection of the former was no renunciation of the right to receive the latter. Morgan v. McKee, 77 Pa. St. 228; Manufacturing Co. v. Wakefield, 121 Mass. 91.

The whole case tends to show that defendant was "ready and willing, prompt and eager," not to perform the contract ón his own part, but to take advantage of a slip of the plaintiff, and avoid performance. Having chosen to proceed himself as the actor, and to resell all the property, and

convert the money paid by plaintiff, the defendant was as much bound to first offer performance of all the concurrent conditions imposed on him by the contract as if he had prepared to bring an action thereon. Proceeding without this precaution, and having incapacitated himself by resale of all the goods from any performance whatever, he released the plaintiff from the necessity of further demand or tender (Benj. Sales, 507), and became liable to plaintiff in this action. He would have the right to counterclaim for damage he sustained from the wrongful refusal of plaintiff to accept the salt hides, if such he could prove; but, since it appears that he sold those for a sum considerably greater than the price plaintiff agreed to pay, the question of plaintiff's default in that particular can hardly arise on a new trial, except as matter purely defensive against the plaintiff's claim for damage as to that item.

The court instructed the jury "that if plaintiff and defendant entered into a contract for the purchase and sale of specific personal property, and the plaintiff thereafter refused to accept the goods or property, and so informed the defendant, defendant had a right to regard said contract abandoned by plaintiff; and if plaintiff, at the making said contract, made a payment in money to defendant as forfeit money to bind the bargain and to act in good faith with defendant, then, and in that event, defendant could retain said money." The instruction was erroneous as applied to the facts, in that it ignored the severable character of the contract, and in that it confounded matters which have no necessary identity, viz. money paid as a forfeit, and money paid to bind a bargain; that is, "earnest money." Howe v. Hayward, 108 Mass. 54. If the money was deposited as a forfeit (though the evidence to support this view, taken as a whole, was very slight), then the condition thereof never occurred, for the defendant has not done "everything he was bound to do to entitle him to insist on the forfeiture." Carpenter v. Blandford, 8 Barn. & C. 575. If, as seems more probable, the payment was by way of earnest, and to bind the bargain, then it was part payment of the contract price, and it was plaintiff's right to have it applied on the price of any of the goods which he might have accepted. We do not at all controvert the rule that a buyer who wrongfully abandons his contract cannot recover payments he has made on account, but the present record discloses no case for its application. The judgment and order denying a new trial should be reversed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order denying a new trial are reversed.

(119 Cal. 123)

In re EDGAR. (Cr. 361.) (Supreme Court of California. Dec. 1, 1897.) CONTEMPT OF STATE COURT-APPEAL TO UNITED STATES COURT-FEDERAL QUESTION.

Petition to federal court for habeas corpus, alleging that petitioner's conviction and detention were in violation of the provision of the United States constitution for due process of law, because he was put on trial under information, and not indictment, presents a federal question, so that appeal to the supreme court of the United States from the denial of the writ works a stay under Rev. St. U. S. § 766, notwithstanding said court has in other cases decided that trial under information is due process; wherefore the warden of the state prison is not in contempt of the state courts for refusal to execute the death warrant on petition pending the appeal.

Application by John C. Edgar for writ of habeas corpus. Petitioner discharged. Atty. Gen. Fitzgerald, for petitioner.

HENSHAW, J. John C. Edgar was adjudged guilty of contempt by the superior court of San Diego county, and was punished therefor by a fine of $200, with the alternative of imprisonment. This hearing is under his application for a writ of habeas corpus.

The facts giving rise to the alleged contempt are the following: One Joseph Japhet Ebanks was convicted of murder in the first degree before the superior court of San Diego county, and, upon appeal to this court, the judgment of conviction and the order denying him a new trial were affirmed. 49 Pac. 1049. Thereafter Ebanks was brought before the superior court of San Diego county, which pronounced its order, fixing the day of execution on the 8th day of October, 1897, within the walls of the state prison at San Quentin. Pursuant to this order, Ebanks was delivered to the custody of the warden of that institution. Upon the day fixed for his execution, Ebanks made applica tion to the district court of the United States in and for the Northern district of California, praying for a writ of habeas corpus, alleging that he was restrained of his liberty by W. E. Hale, warden of said prison, in violation of his rights under the constitution of the United States, and setting up certain facts in support of this allegation. The district court denied his petition, whereupon he appealed from the order so denying his application, to the supreme court of the United States, and therewith petitioned said district court that his appeal be allowed, and that a transcript of the records, proceedings, and papers upon which said order was made be transmitted to the supreme court of the United States. The district court made its order allowing the appeal. Certified copies of all the papers in the matter of the application and of the appeal were served upon petitioner, John C. Edgar, as acting warden of the state prison at San Quentin, the warden at that time being absent from the state of California. These papers were served upon Edgar before the execution, and before the expiration of the time limited for the execution. The

acting warden was thus placed in a most trying and difficult position. He was called upon to decide at his peril whether or not Ebanks' appeal to the supreme court of the United States operated to stay his hand as an executive officer of the state of California. If the appeal did operate as a stay, and he decided that it did not, and proceeded with the execution, he would be guilty of unlawfully taking the life of a human being. If, upon the other hand, the appeal did not operate as a stay, and he decided that it did so operate, he stood liable to be punished for contempt for violation of the order of the superior court of the state. In this clash of judicial authorities there was no court to which he could look for direction. It was incumbent upon him to make his own choice, unaided by the decision of any judicial tribunal. He concluded that the appeal of Ebanks operated to stay the hand of the state authorities, and therefore declined to execute the death warrant; whereupon he was cited before the superior court of San Diego county, and upon a presentation of these facts, none of which are disputed, was adjudged guilty of contempt, and punished therefor, as above set out.

The reasoning by which the superior court reached its conclusion in the matter may be thus summarized: The courts of the United States are courts of limited jurisdiction. The presumptions in any given case are not in favor, but against, their jurisdiction. In a petition for habeas corpus to a circuit or district court, whereby it is sought to arrest the hands of the state authorities, upon the ground that the defendant is restrained of his liberty in violation of the constitution or laws of the United States, there must appear upon the face of the petition averments of substantial facts presenting a federal question. The mere naked averment of a conclusion of law that a defendant is so illegally restrained is not sufficient to confer jurisdiction. Where jurisdiction has not been conferred by a sufficient petition, an appeal by the petitioner from an order remanding him after hearing, or from an order refusing his application for a writ (as in the present case), will not operate upon the state courts and authorities to stay proceedings. The soundness of the court's reasoning in these particulars we need not here pause to consider. It further decided, after elaborate discussion and consideration, that the petition of Ebanks to the district court did not set forth facts raising or presenting a federal question, and therefore concluded that the federal courts never obtained jurisdiction, and that the hands of the state authorities were never stayed. In consonance with this conclusion, it adjudged the petitioner to be guilty of contempt.

It has been declared unnecessary to consider the trial court's reasoning to the effect that in cases such as this, if the petition does not present a federal question, the state authorities are at liberty to act despite the petitloner's appeal. This is so for the very ob

vious consideration that, if it shall appear that a federal question was presented in the Ebanks petition, the reasoning has no application to the case at bar, for it is admitted by all concerned that if a federal question be presented in such a case, and an appeal be taken from the order of the district court, either remanding the petitioner or refusing him a writ, then, by operation of section 766 of the Revised Statutes of the United States, all further subsequent proceedings in the matter against the petitioner in the state courts, or by the state authorities, until the determination of his appeal, are null and void.

In the present unhappy condition of the United States laws governing rights of ap peal in habeas corpus cases, and controlling state authorities while such appeals are pending, many vexatious questions will certainly arise. It must needs be most embarrassing for state courts to determine for themselves whether or not a federal question is presented in such a case in advance of a decision by the United States supreme court, whose judgment is always the controlling arbitrament in the matter. In the present case, however, little difficulty need be experienced. The allegations of the petition of Ebanks distinctly presented the proposition that he had been put upon trial under information, and not under indictment, and that for this reason his conviction and detention were in violation of the United States constitution. That this averment presented a federal question there can be no doubt, and it is none the less a federal question because in former cases it had been decided contrary to his contention, for the proposition was distinctly treated and passed upon by the United States supreme court in the Hurtado Case, 110 U. S. 516, 4 Sup. Ct. 111, 292, and in later cases as a federal question. It being a federal question, the fact that it had been decided upon one man's appeal contrary to his contention does not deprive another man of raising and presenting it as a federal question before the same tribunal in his own appeal. Where a federal question is presented, it is the appeal, and not the merit of the appeal, which operates as a stay. Thus, in our own state an appeal from the judgment in capital cases operates to stay the execution until its determination. No matter how frivolous might be the proposition presented upon appeal, nor how many times it had been decided by the appellate tribunal contrary to this particular appellant's contention, no one would question but that his appeal operated to stay the judg ment of execution. Moreover, it appears that the district court, while denying Ebanks' application for a writ of habeas corpus, granted him leave to appeal. It is inconceivable that leave to appeal would have been granted if, in the view of that court, a federal question had not been presented. It was the equivalent of a declaration by the judge that he decided the federal question as he was bound to do, in consonance with the decisions of his superior

tribunal in the Hurtado Case, but that, notwithstanding, since this federal question had been presented to him, the applicant had the right still further to present it in his own case and on his own behalf to the supreme court of the United States, regardless of its decisions upon the same question in the appeals of other men.

Having thus reached the conclusion that a federal question was presented upon the Ebanks petition to the district court, his appeal to the supreme court of the United States unquestionably operated as a stay (In re Shibuya Jugirs, 140 U. S. 291, 11 Sup. Ct. 770); and the acting warden was not in contempt of the authority of the state courts in deferring the execution. Wherefore let the prisoner be discharged.

We concur: BEATTY, C. J.; HARRISON, J.; MCFARLAND, J.; TEMPLE, J.

GAROUTTE, J. (concurring). The petitioner, Edgar, acting warden of the state prison, asks to be discharged upon habeas corpus. He has been adjudged guilty of a contempt of the superior court of San Diego county in not carrying out an order of that court directing the execution of one Ebanks, and is now restrained of his liberty. His defense to the alleged contempt is that, by virtue of certain proceedings had in the federal courts, a stay of execution was created. These proceedings consisted in the presentation and filing of a petition for a writ of habeas corpus in behalf of Ebanks before the district court of the Northern district of the state of California, a denial of the application for the writ by that court, and an appeal from said order of denial to the supreme court of the United States. Do the proceedings in the federal court result in a stay of the execution of the order of the state court commanding the warden to execute Ebanks? If such stay exists, it is by virtue of section 766 of the Revised Statutes of the United States, which, it is claimed, provides for a stay of proceedings pending an appeal from an order made by a district or circuit court refusing the issuance of a writ of habeas corpus. Conceding this statute has that effect in many cases, still I am not prepared to say that it has such effect in all cases; but, upon the contrary, I am clear that the appeal can only have such effect when the petition for the writ upon its face recites facts which invoke the jurisdiction of the federal court. In other words, the petition must show that the person is restrained of his liberty in violation of the constitution of the United States, or a law or treaty thereof. It is only in that class of cases that the federal court has jurisdiction, and in such cases only that the state court may be ousted of jurisdiction. The state court loses no jurisdiction until the federal court takes jurisdiction, and the federal court can take no jurisdiction by inference or presumption. Affirmative jurisdictional facts must appear upon the face of the

petition, or a federal court is powerless to render any decree. It follows that an appeal taken from an order of a federal court refusing the issuance of a writ of habeas corpus based upon a frivolous petition, or a petition showing no federal question, does not stay the hand of the state court; and the execution of its judgment, notwithstanding such an appeal, may be enforced in all appropriate ways

It is the law of the land that state courts have the exclusive power and right to deal with state questions. Congress has no power to obstruct the ordinary administration of the criminal laws of the state courts. Such an attempt would be a gross trespass upon the sovereign power of the states of this Union, and would be so recognized by all judicial tribunals. The states have given no such power to congress; and any attempt upon its part to declare that "an appeal from an order of a federal court refusing the issuance of a writ of habeas corpus, regardless of the issues raised by the petition, stays the execution of the judgment of the state court," is unconstitutional and void. It necessarily follows that to support the validity of the section of the Revised Statutes heretofore quoted, and give it force and effect, the construction must be maintained that it only applies where the petition for the writ raises a federal question.

It is argued that this construction of the law casts upon the warden of the state prison the grave responsibility of determining when the petition for the writ discloses the presence or absence of a federal question. So be it. All executive officers must at their peril decide important questions. In every capital case, when the moment arrives for carrying out the judgment of the court, the warden must assume the great responsibility of determining whether or not a stay of execution is in force and effect. By virtue of the provisions of section 1243 of the Penal Code, a certificate of probable cause may be granted by a justice of this court in certain cases, which certificate has the effect, when filed, to stay the execution of the judgment. I am convinced that under this section a certificate of probable cause cannot issue upon an appeal from an order made after final judg ment of conviction, and that a stay of the execution of such order could only be had by the issuance of a supersedeas from the apperlate court. Yet this question of law and many others are matters which must be decided by the warden according to his lights whenever they face him, and the responsibility rests upon him of deciding them correctly.

Again, we have no conflict of jurisdiction in this case. It has been nowhere decided by a federal court that the petition of Ebanks for the writ disclosed a federal question. No federal court has yet decided that it has jurisdiction to hear and determine the matters raised by his petition. The question is still an open one, and, being open, this court is entirely free to deal with it, and declare the

law as it believes it to be. To be sure, the question is a delicate one, but this court neither can nor should evade it for that reason. If there is a stay of the superior court's order fixing the day for the execution of Ebanks, such stay exists by reason of the appeal from the order of the federal court denying the application for his writ. That appeal stays the order of the superior court if the petition forming the basis of that order presents a federal question. Hence, the vital issue, and the only issue, before this court, is: Was there such federal question presented to that court? This court is now passing upon the present status of the jurisdiction of a superior court of the state as to a particular case. The question of jurisdiction is squarely presented, and must be met and decided, regardless of the particular matters of law or fact which are necessary to be considered in its determination.

The petition for the writ of habeas corpus discloses that the petitioner, Ebanks, was tried and convicted upon a charge of murder, not set forth by indictment of a grand jury, but by an information of the district attorney. It is now insisted that such a procedure does not constitute due process of law. The issue raised by this contention presents a question for the decision of the federal courts, and these courts have so recognized it in the past. The Hurtado Cașe, 110 U. S. 516, 4 Sup. Ct. 111, 292, exhaustively discusses the merits of the contention, and holds against the present claims of Ebanks. But, nevertheless, a federal question is presented; and the fact that, judging by the past, it surely will be decided by the supreme court of the United States against him, in no way precludes the issue of its federal character. Hurtado Case has since been followed in the McNulty Case, 149 U. S. 648, 13 Sup. Ct. 959, and also in the recent case of Durrant. The petition for the writ in the Durrant Case is laid upon the same lines as that in the present case, in all substantial matters; and, if the Durrant petition had stated no federal question, the appeal from the order refusing the writ of habeas corpus would have been dismissed by the supreme court of the United States. Yet such action was not taken, but, on the contrary, the appeal was heard and decided upon the merits, the court thereby recognizing the presence of a federal question before it.

The

There is no other federal question raised by the Ebanks petition, save the one to which allusion has here been made. Indeed, in the ordinary trial of a defendant charged with murder based upon an information by the district attorney, it is not apparent that any other federal question could be raised. Hence it appears that the legal difficulties and delays which have arisen in the Ebanks case by reason of the habeas corpus proceedings inaugurated before the federal courts may be largely avoided in future cases b. proceeding against defendants charged with

the crime of murder upon indictment by the grand jury, rather than by information filed by the district attorney. If such course is adopted by prosecuting officers, I do not believe the present unfortunate condition as to the judgments of state courts in capital cases will ever be repeated. By reason of the foregoing views, I agree with the other members of the court in holding that the acting warden, Edgar, should be discharged from custody.

(119 Cal. 119)

INYO COUNTY v. ERRO. SAME v. HIGOA. SAME v. INDA. SAME v. ERRACA. (L. A. 292-295.)

(Supreme Court of California. Dec. 1, 1897.) MUNICIPAL CORPORATIONS-LICENSES-VALIDITY—

APPEAL-REVIEW.

1. Under St. 1893, p. 358, authorizing boards of supervisors to license certain kinds of business transacted and carried on" in their counties, an ordinance requiring the procurement of a license by every person "engaged" in the kind of business specified is valid, the words "transacted and carried on" being synonymous with "engaged in."

2. The question whether persons who drive flocks of sheep across a county do it to pasture and graze in the county, so as to charge them under an ordinance licensing persons engaged in the business of raising, grazing, herding, or pasturing sheep in the county, is a question of fact in each particular case, which, being determined upon conflicting evidence, may not be disturbed on appeal.

Department 2. Appeals from superior court, Inyo county; N. D. Arnot, Judge.

Actions by Inyo county against Erro, Higoa, Inda, and Erraca. From judgments for Inyo county, and from orders denying new trials, defendants appeal. The cases all involving the same questions, they are argued and considered together. Affirmed.

P. H. Mack and P. W. Bennett, for appellants. P. W. Forbes and Richard S. Miner, for respondent.

HENSHAW, J.

These appeals were argued and submitted together. They involve the consideration of identical questions, and the evidence is substantially the same in each case. They may, therefore, be considered and disposed of together. The appeals are from the judgments and from the orders denying the defendants new trials. The questions involyed are: (1) The validity of an ordinance of Inyo county requiring the procurement of a license by "every person engaged in the business of raising, grazing, herding, or pasturing sheep in the county"; and (2) the applicability of this ordinance, under the evidence, to the defendants.

It is first insisted that the ordinance is void on its face. Herein it is argued that under subdivision 27 of section 25 of the county gov ernment act of 1893 (St. 1893, p. 358), boards of supervisors are authorized "to license for purposes of regulation and revenue all and every kind of business not prohibited by law,