also the petitioner herein, who was and is public administrator and administrator of said estate. William and David Savage filed an answer to the complaint of said Florence, denying her heirship, and averring that they and certain other persons were the true heirs; and afterwards procured a commission to issue out of the court of respondent to take the depositions of certain witnesses in England. A day was fixed for the settlement of direct and crossinterrogatories before the respondent. The petitioner herein served and filed certain cross-interrogatories, and asked to have them settled and annexed to the commission; but, upon motion of said William and David Savage, the respondent omitted to annex said interrogatories to said commission, upon the ground that petitioner, as administrator, was not entitled to contest the claim of the parties in said action to heirship, or distribution of said estate, and this proceeding is brought to compel respondent by mandamus to settle the said interrogatories of petitioner, and annex them to said commission.

We think that it is the settled law of this state that an administrator cannot represent either side of a contest between heirs, devisees, or legatees, contesting for the distribution of an estate. He cannot litigate the claims of one set against the other. His duty is to preserve the estate, and distribute it as the court shall direct. It is true that petitioner was named as a formal party in the complaint filed by Florence Blythe; but the only averment in relation to him is that he was administrator. He is not alleged to be a claimant to the estate; and there are no issues to which his interrogatories could be addressed. Estate of Wright, 49 Cal. 550; Bates v. Ryberg, 40 Cal. 465; Estate of Marrey, 3 Pac. Rep. 896.

Prayer of petitioner denied, and writ dismissed.

SHUMWAY. LEAKEY. (No. 11,700.)

(Supreme Court of California. August 30, 1887.)

1. SHERIFF-PROPERTY HELD UNDER ATTACHMENT-KEEPER'S FEES-Order of Court. Under the statute of California, relating to the fees of the sheriff of Lassen county, which provides that he shall be allowed for his trouble and expense in keeping property under attachment such sum as the court shall order, not exceeding three dollars per diem, for keeper's fees, the sheriff has no right to the fees unless the court makes such order.

2. SAME-WHAT AMOUNTS TO ORDER-REMARK OF JUDGE.

In such a case, when the judge of the court in which the attachment suit was pending, in a conversation with the sheriff on the street, told him to pay the fees, this does not amount to an order.

3. SAME-ACTION AGAINST ALLOWANCE OF FEES-ORDER OF COURT.

In an action against a sheriff to recover money retained by him as fees for keeping and preserving property under attachment, without first obtaining the order of the court allowing said fees, as required by the statute of California, a motion made by defendant, after plaintiff has rested his case, to have the court then make an order allowing the fees, is properly denied, as such order was to be made, if at all, in the attachment suit.

4. SAME-RETAINING MONEY-PENALTIES-DEMAND.

Under Pol. Code Cal. 4181, which provides that if a sheriff neglects to pay over, on demand, money which may come into his hands by virtue of his office, the amount thereof, with 25 per cent. damages, and interest at the rate of 10 per cent. per month from the time of demand, may be recovered by the person entitled thereto, the party seeking to avail himself of such severe penalty niust be exact in his proceedings; and a demand for an amount greater than that claimed in a suit therefor, and much greater than that found due by the court, is not sufficient to justify the court in allowing the penalty and interest.

Commissioners' decision. Department 1.

Appeal from superior court, Lassen county; PRESSLEY, Judge.

E. V. Spencer, for appellant. A. D. Goodwin and A. L. Shinn, for respondent.

HAYNE, C. This is an action under section 4181 of the Political Code, which provides in relation to a sheriff that, "if he neglects or refuses to pay over on demand to the person entitled thereto any money which may come into his hands by virtue of his office, (after deducting his legal fees,) the amount thereof, with 25 per cent. damages and interest at the rate of 10 per cent. per month from the time of demand, may be recovered by such person." The defense of the sheriff was that, after deducting his legal fees, there remained only $76.66, which he duly tendered to the plaintiff, but which plaintiff refuses to receive. The fees which he claimed the right to deduct were keeper's fees, etc., upon an attachment in the cause. The controversy turns upon the right to deduct these fees.

The provision of the statute in relation to the fees of the sheriff of Lassen county is as follows: "For his trouble and expense in taking and keeping possession of and preserving property under attachment or execution, or other process, such sum as the court shall order: provided, that no more than $3 per diem shall be allowed to a keeper." Laws 1869-70, p. 158. With reference to similar provisions, it is the settled rule that unless the court makes such order the sheriff has no right to the fees. Bower v. Rankin, 61 Cal. 108; Lane v. McElhany, 49 Cal. 424; Geil v. Stevens, 48 Cal. 590. Now, in this case, there was no such order. The findings state that the sums claimed as fees were paid by the sheriff "without at any time obtaining an order of said court allowing, fixing, or authorizing such payment, or any portion thereof." And this finding is sustained by the evidence.

The objection to the offer of defendant to prove that before paying out the fees "he had asked the Hon. J. W. HENDRICK, superior judge, about paying the bills, upon meeting said judge upon the street, and that said judge told him to pay them," was properly sustained. What the judge told the defendant on the street is not an order. Even if the judge had promised out of court to have the order entered, it would not have amounted to an order. Campbell v. Jones, 41 Cal. 518. Nor was there error in the denial of the defendant's motion, made after the plaintiff had rested his case, to have the court then make an order allowing the fees. Such order was to be made, if at all, in the attachment suit. The motion was not a part of the case before the court, and hence cannot be considered on this appeal. The court, therefore, properly rendered judgment against the defendant.

But we think the court erred in allowing the penalty of 25 per cent., and interest at 10 per cent. per month. The statute provides that the penalty is to be imposed for non-payment "on demand." In seeking to avail himself of such a severe penalty, the party must be exact in his proceedings. And without expressing any opinion as to whether a demand in general terms, without naming any sum, would have been sufficient, we think that a demand for $921.47, when the amount claimed in the complaint was only $848.73, and the amount found to be due only $366.73, was not sufficient. This point does not appear to have been taken before the learned judge of the court below, nor is it made on appeal. But we think that justice requires this disposition of the case. In this view it is not necessary to determine whether the penalty can only be recovered in an action for a false return.

We therefore advise that the judgment be reversed, and the cause remanded, with directions to enter judgment for $366.73, with interest from February 25, 1885, at legal rates, and for costs of suit.

We concur: BELCHER, C. C.; Foote, C.

BY THE COURT. For the reasons given in the foregoing opinion the judg ment is reversed, and cause remanded, with directions to enter judgment for $366.75, with interest from February 25, 1885, at legal rates, and for costs of suit.

(2 Cal. Unrep. 794)

SWAMP-LAND RECLAMATION DIST. No. 407 v. WILCOX.

(Supreme Court of California. August 31, 1887.)

(No. 11,782.)*

1. SWAMP-LANDS-ASSESSMENTS-ORDER of Board of SUPERVISORS - ALTERATION-EVI

DENCE.

In an action by a swamp-land reclamation district to enforce the payment of a swamp-land assessment, plaintiff offered in evidence an order appearing in the "minute-book" of the board of supervisors, in which, by Pol. Code Cal. 22 4029 -4031, all orders of the board are required to be recorded; and it was conceded that, without the direction of the board, the order had been altered by B., who at the time of the entry, but not at the time of the alteration, was ex officio clerk of the board. B. testified, against objection, that he made the alteration to correct what appeared to him, on examination, to be a clerical error of his deputy, now deceased, the then acting clerk of the board. The "rough minute-book," containing the original entry from which the record was made, and to which the altered record conformed, was also admitted against objection. Held, that it was error for the court to admit the order in evidence.

2. SAME-RECORD-ALTERATION-PAROL EVIDENCE.

Held, further, that the order was a record which B. had no right to alter or amend, and that parol proof was inadmissible to correct or change the record. 3. SAME ASSESSMENT LISTS-DESCRIPTION.

Under Pol. Code Cal. ? 3461, requiring certain assessment lists to contain "a description, by legal subdivisions, swamp-land surveys, or natural boundaries," a description, naming the adjoining proprietors on the respective boundaries, is sufficient.

4. SAME ASSESSMENTS AND BENEFITS-DUTY OF COMMISSIONERS.

Pol. Code Cal. 3456, provides that assessments for swamp-land improvements shall be proportionate to the resulting benefit, and section 3461 provides, among other requisites, that the list must contain "the amount of the charge assessed against each tract." The list in question conformed to the requirements of section 3461. Held, that the commissioners were not required to report that, in making the assessment, they had complied with section 3456, and that in the absence of evidence to the contrary, they must be presumed to have regularly performed their official duty.

In an action to enforce the payment of a swamp-land assessment, it appeared that, in the assessment list, there was no dollar-mark before the figures opposite defendant's name, under the heading "Amount of charges assessed." In a number of assessments the dollar-mark preceded the figures under that heading, and in others the mark did not appear. Held, that the figures must be construed to represent dollars.

6. SAME OATH OF COMMISSIONERS.

Ths commissioners of swamp-land assessments were verbally sworn before viewing the land, but it did not appear that they subscribed their oath, and filed it in the county clerk's office, as required of all officers" by Pol. Code Cal. 22 904, 909. Held, that whether the commissioners were or were not "officers," within the meaning of those sections, a failure of strict compliance with their requirements would not avoid official acts fully performed.

Commissioners' decision. Department 1.

Appeal from superior court, Sacramento county; T. B. MCFARLAND, Judge. W. H. Beatty, Add C. Hinkson, and Freeman, Johnson & Bates, for appellant. A. P. Catlin, for respondent.

BELCHER, C. C. This is an action to enforce payment of a swamp-land assessment. The plaintiff was organized as a swamp-land district in January, 1882, to reclaim certain swamp lands situate on Andrus island, in Sacramento county; and, as alleged in the complaint, the assessment sought to be recovered was thereafter regularly levied on land owned by the defendant within the district. In the court below judgment was entered in favor of the plaintiff, from which, and from an order denying a new trial, the defendant has appealed.

The validity of the assessment is assailed by the appellant upon several grounds, but they need not all be noticed.

Reversed in banc. See 17 Pac. 241, 75 Cal. 443.

In support of the averment that commissioners were appointed to view the lands of the district, and to assess upon them the proper charge for their reclamation, the plaintiff offered in evidence at the trial an order appearing in minute-book "K" of the records of the board of supervisors, which read as follows: "OFFICE OF THE BOARD OF SUPERVISORS,

"FRIDAY, August 25, 1882. "Swamp-land district No. 407. The report of the trustees of swamp-land district No. 407, was received and the following report adopted: 'Ordered that J. M. Upham, J. M. Stephenson, and John Miller, three competent and disinterested persons and residents of Sacramento county, be, and are hereby, appointed commissioners, who must, in the manner provided by law, view the land of said district and assess thereupon the proper assessment and charge for the reclamation of said land, to-wit: The sum of $78,000, in the manner and at the cost surveyed, planned, and estimated by J. C. Pierson, engineer of said district, and by the board of trustees filed this day with the clerk of this board.'"

The defendant objected to the entry being received in evidence upon the ground that when made it was an order appointing commissioners to view and assess a charge on lands in swamp-land district No. 341, and that it had since been altered and changed, and was therefore irrelevant and immaterial. And in this connection counsel offered to show that from August 25, 1882, until 1885, the record read as follows: "Swamp-land district No. 341. The report of the trustees of swamp-land district No. 341, was received and the following report adopted: Ordered that J. M. Upham, J. M. Stephenson and John Miller,' "" etc. Then followed the balance of the order as above set out. Thereupon the attorney for the plaintiff admitted in open court that on the seventeenth day of July, 1885, the day before the trial, Thomas H. Berkey, in his presence, changed the figures designating the number of the district from "341" to "407." It was then shown that Thomas H. Berkey was the county clerk of Sacramento county on the twenty-fifth day of August, 1882, but that his term of office had expired before he changed the record as above stated, and that he was then acting as a deputy county clerk; that the record of the proceedings of the board of supervisors, of which the entry in question was a part, was signed by the president of the board, but was not signed by Berkey, or any of his deputies, and that the alteration was made by Berkey when the board of supervisors was not in session and without its direction or permission. Berkey was called as a witness and testified, against the objection of defendant, that he made the alteration as soon as his attention was called to what appeared to him, by a comparison of the records and examination of different pages of the record-book, to be a clerical error made by one Parnell, now deceased, who, in August, 1882, was his deputy, and as such was the acting clerk of the board of supervisors. A book was also introduced in evidence, against the objections of defendant, described by the witness, Berkey, as the book of original entry, and what he termed the "rough minutes"-a book in which the clerk first entered the minutes of the proceedings of the board, and from which the record of its proceedings was made up. In that rough minute-book appeared the following entry under date of August 25, 1882: "The board of swamp-land com., No. 407; report of trustees filed and ordered adopted; see order. Upon this showing the court overruled the objections of defendant, and admitted the order in evidence.

In so doing we think the court erred. The county clerk is ex officio clerk of the board of supervisors, and as such must record all the proceedings of the board. And the board must cause to be kept a "minute-book," in which must be recorded all orders and decisions made by them, and the daily proceedings had at all regular and special meetings. Sections 4029-4031, Pol. Code. The order in question was, therefore, a record which, it is evident, Berkey had no right to alter or amend, even though he had personal knowledge—

as he did not have in this case—that it was erroneously entered. Dyer v. Brogan, 11 Pac. Rep. 589; Pacheco v. Beck, 52 Cal. 3; Wigginton v. Markley, Id. 411. Nor was parol proof admissible, in a collateral proceeding like this, to correct or change the record. This must be so on principle, and has been held in many similar cases. Thus, in Jordan v. School-District, 38 Me. 170, it is said: "School-districts are required by law to keep a record of their proceedings by a sworn clerk. Such proceedings can therefore be proved only by the record, or a copy thereof, properly authenticated. The parol proof offered was consequently properly rejected." So, in Morrison v. City of Lawrence, 98 Mass. 221, it is said: "Parol evidence was inadmissible to prove any acts or proceedings of the city council, or that the record of such proceedings as kept by the clerk was erroneous or defective." See, also, Mayhew v. District of Gay Head, 13 Allen, 134, and City of Logansport v. Crockett, 64 Ind. 319. If the record was, in fact, erroneous in the particulars named, the plaintiff's remedy was an application to the board of supervisors, or some other direct proceedings, to have it corrected.

The defendant also objected to the assessment list, offered in evidence by the plaintiff, upon several grounds, and his objections were overruled. One ground of objection was that the land was not properly described. The Code required the list to contain "a description by legal subdivisions, swamp-land surveys, or natural boundaries of each tract assessed," and "the number of acres in each tract." The land assessed to the defendant was described as a portion of two swamp-land surveys, "bounded on the north by the lands of Mrs. R. F. Davis, on the east by the lands of L. C. Ruble, on the south by the lands of the Pacific Mutual Life Insurance Company, and on the west by Old river,-number of acres, 100." This should be held, we think, to be a sufficient description, as otherwise it would seem impossible to describe the land so as to comply with the statute. Evidently, it could not have been described by legal subdivisions, nor, being a portion of two surveys, by swampland surveys. If, then, the words "natural boundaries" are to be construed as excluding all artificial boundaries, or boundaries made by man, it must follow that no sufficient description of the land could be made. We do not think such a result was intended or should be declared. In our opinion any description which clearly identifies and marks out the land is suficient.

Another ground of objection was that it did not appear from the face of the assessment list, or from any other evidence, that the assessment or charge was made in proportion to the whole expense, and to the benefits which would result from the works of reclamation, nor that the charge was estimated in gold and silver coin of the United States, nor in any kind of money. Section 3456 of the Political Code requires the commissioners to "view and assess upon the lands situated within the district a charge proportionate to the whole expense, and to the benefits which will result from such works, and estimate it in gold and silver coin of the United States." And section 3461 provides what the list must contain, as follows: "The list must contain: (1) A description by legal subdivisions, swamp-land surveys, or natural boundaries of each tract assessed. (2) The number of acres in each tract. (3) The names of the owners of each tract, if known; and if unknown, that fact. (4) The amount of the charge assessed against each tract."

The list returned was signed by the supposed commissioners, and complied with the requirements of section 3461, and there is nothing to show that the assessment was not made in full compliance with section 3456. The commissioners were not required to report that in making the assessment they had complied with the requirements of section 3456, and, if they had done so, their certificate to that effect would not have been even prima facie evidence of the fact. People v. Hagar, 49 Cal. 232. They were, however, charged with an official duty, and, in the absence of all evidence to the contrary, must be presumed to have regularly performed that duty. Section