shall order, provided that no more than three dollars 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 Honorable 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 twenty-five per cent, and interest at ten 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.

FOOTE, C., and BELCHER, C. C. concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment 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.

[No. 11642. Department One.-August 30, 1887.] WILLIAM GREEHN, APPELLANT, v. B. E. SHUMWAY, RESPONDENT. J. M. LEAKEY, SHERIFF OF LASSEN COUNTY, APPELLANT.

ATTACHMENT FEES-SHERIFF OF LASSEN COUNTY-MOTION TO FIX FEES -REFUSAL OF COURT TO ENTERTAIN-APPEAL-MANDAMUS.-The refusal of the Superior Court of Lassen County to entertain or determine a motion made by the sheriff of that county for an order fixing his fees in an attachment suit, as provided by the act of 1869, cannot be taken advantage of by appeal.

APPEAL from an order of the Superior Court of Lassen County refusing to fix the fees of a sheriff in an attachment suit.

The provisions of the act of 1869-70, requiring the fees of the sheriff for his services in an attachment suit to be fixed by an order of court, are quoted in the preceding case of Shumway v. Leakey, ante, p. 260. The further facts are stated in the opinion.

E. V. Spencer, and J. E. Raker, for Appellants.

Goodwin & Davis, and A. L. Shinn, for Respondent.

HAYNE, C. The case of Shumway v. Leakey, just decided, was an action under section 4181 of the Political Code, to recover money in the sheriff's hands which he had refused to pay over to the party entitled. No order had been made fixing the amount of the fees, and upon that ground it has just been decided that the sheriff was not entitled to retain what he claimed as his fees out of the money in his hands. Pending the trial of said case, the sheriff made a motion for an order allowing his fees. Shumway (defendant in the attachment suit, and plaintiff in the suit above-mentioned) objected, “on the ground that such proof was irrelevant, and that the court ' had no jurisdiction to hear, or settle, or allow the said bill of expenditures after the same had been paid. The said objection was sustained, and the motion denied by the court; to which ruling counsel for said sheriff duly'excepted."

The sheriff attempts to make this action of the court the subject of an appeal.

If the court had acted upon the application, and made an order allowing or disallowing the fees, it would then be a question whether such order was appealable. It is apparent, however, that the court simply refused to take any action in the matter, one way or the other. And

we think it clear that this "order" is not appealable. If the sheriff has any remedy, it is by mandamus to the proper court to take action in the matter.

The order not being appealable, there is nothing before the court.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the proceedings upon attempted appeal are dismissed.

[No. 11785. Department One.-August 30, 1887.]

ROSA H. HEPPE, RESPONDENT, v. H. W. JOHNSON ET AL., APPELLANTS.

DEPOSIT BY CLERK OF COURT-DUTY OF TREASURER TO RECEIVE-ACT OF 1864-REPEAL OF BY CODES.-The act of 1864, requiring the clerks of courts of records, in all cases in which deposits of money are made into court, to deposit the same with the treasurer of the county, and making it the duty of the treasurer to receive such deposits, was not repealed upon the taking effect of the codes on the 1st of January, 1873, nor until the adoption, in 1874, of section 2104 of the Code of Civil Procedure.

ID. IRREGULARITY IN MANNER OF DEPOSIT-LIABILITY OF SURETIES.— Where a deposit is made by the clerk and receipted for by the treasurer, as required by the act of 1864, and the latter regularly turns it over to his successor in office, by whom it is embezzled, any irregularity that there may have been in the manner of making the original deposit will not release the sureties on the official bond of the succeeding treasurer from liability.

ID.-JOINT AND SEVERAL BOND JOINDER OF PARTIES IN ACTION ON.Under section 383 of the Code of Civil Procedure, one or more of the sureties jointly and severally liable on an official bond may be joined as defendants in an action on the bond, at the election of the plaintiff.

ID. COUNTY TREASURER-SUCESSIVE TERMS LIABILITY FOR MISAPPROPRIATION OF FUNDS-SURETIES ON LAST BOND.-Where the same person is elected and acts as county treasurer during three successive terms, and it is afterwards discovered that money deposited with him had been misappropriated, it will be presumed, in the absence of evidence to the contrary, that this misappropriation took place at the end of his last term, and the sureties on his last official bond are liable therefor.

ID.-FORM OF JUDGMENT AGAINST SURETIES.-People v. Love, 25 Cal. 520, and People v. Rooney, 29 Cal. 643, affirmed to the point that a judgment against the sureties on an official bond, for a defalcation of the principal, should first fix the amount of the defalcation, and then proceed with a separate judgment against each of the sureties for the full amount for which he made himself liable in the bond, and costs, and then close with a proviso that the judgment shall be satisfied by the collection or payment of the amount of the defalcation and costs.

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.

The facts are stated in the opinion.

Freeman, Johnson & Bates, for Appellants.

Taylor & Holl, for Respondent.

BELCHER, C. C. On the twenty-first day of February, 1873, a decree of foreclosure was entered in the District Court in and for Sacramento County, in favor of Nicholas Schadt against William Nicholas Heppe, administrator of the estate of Jacob Heppe, deceased, and others. This decree, among other things, provided:

"That if there be any surplus after the payment of the moneys due plaintiff, with interest, attorneys' fees, costs, and accruing costs, that such surplus be paid into court, to be disposed of under the order of the court to the persons entitled thereto."

In pursuance of the decree, the sheriff sold the mortgaged property, and after paying the plaintiff and all costs as required, had left in his hands a surplus of $1,178.85, which he paid to Lauren Upson, clerk of the court, on the twentyfirst day of March, 1873.

Immediately on receiving the money, Upson deposited the same with John Bellmer, then the county treasurer, and took from him a receipt, which, after reciting the title of the court and cause, reads as follows: