the top, compact and regular in construction, etc. The complaint then proceeds to aver that certain other coterminous land-owners erected fences, which, together with his and certain fences erected by defendant, served to "and did and now does form a perfect and sufficient inclosure of all said premises, and sufficient to, and the same and the whole thereof did, and now does, prevent the ingress of stock upon or the egress of stock from said premises, and the whole thereof." The land of defendant thus inclosed is not divided by a partition fence from that of Abbott, Shoemake, and Tuck, adjoining land-owners, but is inclosed in one common inclosure with their land. The land in question is situated in the county of Stanislaus, and is therefore in one of the counties governed by the act entitled “An act concerning lawful fences," approved April 27, 1855, (St. 1855, p. 154,) and an act amendatory and supplementary thereto approved April 3, 1860. St. 1860, p. 141. These acts are retained in force by the provision of section 19 of the Political Code, and the counties to which they are applicable are not subject to the provisions of section 841 of the Civil Code. Gonzales v. Wasson, 51 Cal. 297.

The act of 1855, after prescribing the height and mode of construction of lawful fences, when of wire, of post and rail, and various other material, proceeds as follows:

"Sec. 2. Any fence which, by reliable evidence, shall be declared as strong, substantial, and as well suited to the protection of inclosures as either of the above-described, shall be a lawful fence in all the counties of this state, except Sonoma, Napa, El Dorado, and Marin.'

The fifth section of the act of 1855 was amended in 1860 (Statutes 1860, p. 141) to read as follows:

"When a fence has been erected by any person on the line of his land, and the person owning the land adjoining thereto shall make, or cause to be made, an inclosure on the opposite side of such fence, so that such fence may answer the purpose of inclosing his ground also, such person shall pay the owner of such fence already erected one-half the value of so much thereof as serves as a partition fence between them," etc.

The ultimate object of a lawful fence is to so inclose land as to prevent the ingress and egress of such domestic animals as are usually nurtured and confined thereon, and to protect the premises inclosed from unlawful encroachment. At the common law no man is bound to fence his lands against the cattle of another, but each owner is bound to restrain them, and is answerable for any trespass they may commit upon the lands of another. The word "close" is purely technical, and relates to the interest in the soil, and to its invisible boundaries, and not to those artificial barriers often erected around land. The whole duty of erecting division and boundary fences, in the absence of agreement or prescription, is regulated by statute, and, as will be seen by our statutes as quoted, lawful fences may consist either of the specific structures enumerated, or of any other barrier "which, by reliable evidence, shall be declared as strong, substantial,

and as well suited to the protection of inclosures as either of the above described."

*

Keeping in view, then, the object of a lawful fence, viz., to protect an inclosure, we are of opinion the language of the complaint in this cause sufficiently alleges that the fence constructed by plaintiff, and for the value of which he seeks to recover, was and is a lawful fence. It is not one of the enumerated fences mentioned in the statute, but is described as a stone wall, of given dimensions, constructed in a given manner, and is, according to the complaint, a "good, strong, substantial, and lawful stone fence, and, with the other fences, now does form a perfect inclosure of all said premises, and sufficient to, and now does, prevent the ingress of stock upon or the egress of stock from said premises, and the whole thereof." A fence which forms a perfect inclosure, and is sufficient to turn stock, which is good, strong, and substantial, and built of stone, must, we think, be the equivalent of the lawful fences specifically described in the statute. The statute, as amended in 1860, does not in terms pro vide that line or division fences shall be lawful fences; but the law having defined what is meant by a lawful fence, we must presume that when fences are mentioned elsewhere in the statute, lawful fences are intended. Enright v. San Francisco & S. J. R. Co., 33 Cal. 230.

We do not conceive it to be necessary to show that all the fences surrounding and inclosing the lands of defendant are lawful fences within the meaning of the statute. If they have been adopted by him in completing his inclosure, and serve to inclose his land, and if plaintiff's fence complies with the requirements of the law, it must be held sufficient; otherwise a party inclosing his land could always prevent a recovery for fences constructed by others on his lines, by omitting to build as provided by statute. So, too, the fact of defendant's connecting his fence with those already constructed, so as to form an inclosure of his land with that of such others, must be construed as tantamount to an agreement on his part, within the doctrine in Gonzales v. Wasson, 51 Cal. 295.

The road laws, retained in force by the Code, are not subject to the objection of being special legislation, and therefore obnoxious to the constitution. They were in force before the adoption of our present constitution, and that instrument only applies to statutes passed after its adoption. People v. Jobs, 4 Pac. Rep. 798; Ex parte Burke, 59 Cal. 6. The demand of payment by plaintiff was sufficient.

The complaint shows the length of the division fence to be 320 rods; that the value thereof, at the time the inclosure was made, was $1.75 for each and every rod thereof, and that one-half the total value was and is $280; that on the fourteenth day of October, 1881, plaintiff demanded payment of said sum from defendant, which was refused, etc. Nothing further was required to constitute a valid demand.

Counsel for respondent claims that if a recovery can be had from defendant in this case, he will be equally liable to the other persons

:

whose fences form portions of the general inclosure within which his land is situated. A reference to the statute (St. 1860, p. 141) will show that it is only for a proportionate part of the value of partition fences that a recovery can be had.

We think the judgment should be reversed, and the court below directed to overrule the demurrer.

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

BY THE COURT. For the reasons given in the foregoing opinion the judgment is reversed, with directions to overrule the demurrer to the complaint.

MEADE v. WATSON. (No. 8,877.)

Commissioners' decision.

Filed October 22, 1885.

Department 2. Appeal from superior court, county of Stanislaus. The facts in this case were the same as those in Meade v. Watson, (No. 8,876,) ante, 311. Wright & Hazen, for appellants.

W. E. Turner, for respondent.

SEARLS, C. This case involves precisely the same questions as Meade v. Watson, No. 8,876, and the two cases were submitted on the same briefs, and a like judgment should be entered.

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

BY THE COURT. For the reasons given in the foregoing opinion the judgment is reversed, with directions to overrule the demurrer to the complaint.

(67 Cal. 589)

CARPENTER v. HEWEL. (No. 8,214.)

Filed October 22, 1885.

1. NOTICE OF MOTION FOR NEW TRIAL-NOTICE OF DECISION.

A notice of motion for a new trial is in time where made 12 days after the decision, if no notice of the decision ever was served on the moving party or his attorney.

2. COUNTER-CLAIM-HOW SET FORTH IN ANSWER.

A counter-claim must be denominated as such in the answer, to be effective.

3. EJECTMENT-RENT FOR USE AND OCCUPATION AS COUNTER-CLAIM.

In ejectment a cause of action by the defendant against the plaintiff for rent for the use and occupation of the demanded premises cannot be set up as a counter-claim.

Commissioners' decision.

Department 2. Appeal from superior court, Stanislaus county. Schell & Bond, for appellant.

W. E. Turner, for respondent.

FOOTE, C. The plaintiff, Carpenter, brought an action of ejectment for the possession of some land. He alleged an unlawful entry upon the same by the defendant and his own ouster therefrom, claimed restitution of the premises and damages for its withholding, and for

rents, issues, and profits. The defendant answered, denying the allegations of the complaint; and, further answering, averred himself to be the owner of the premises and entitled to the possession thereof; alleged a contract by which the plaintiff became his tenant, and, claiming thereunder rent for use and occupation, prayed judgment for the same in the sum of $1,000.

The plaintiff on the twenty-seventh of May, 1880, moved the court to dismiss "this action without prejudice." The court refused to dismiss the action. Judgment was afterwards rendered in favor of the defendant for the amount claimed. The plaintiff's motion for a new trial was overruled, and from the order made therein, and the judgment, he appealed.

Respondent claims the appeal should be dismissed, because notice of intention to move for a new trial was not filed in time, under sec tion 659, Code Civil Proc. Twelve days had elapsed from that on which the decision in the case was made, before the filing of that notice. But nowhere in the record does it appear that any notice of the decision in the case was ever served on the plaintiff or his attorney. And no objection was made in the court below by the defendant to the settlement of the statement on said motion.

The defendant's pleading, averring title in himself and the attornment of the plaintiff as his tenant, and praying for judgment of $1,000 for his use and occupation of the premises, was nowhere therein "denominated a counter-claim." This should have been done to make it effective as such. Section 581, Code Civil Proc.; Brannan v. Paty, 58 Cal. 330, 334. But even had it been so denominated, it would not have constituted a counter-claim. The matters alleged therein did not arise out of the transaction, and were not connected with the subject of the action, according to the construction which this and other courts have given as proper to be placed on language such as that contained in section 438, Code Civil Proc. subd. 1.; Moyle v. Porter, 51 Cal. 639, 640; James v. Center, 53 Cal. 31; Pom. Rem. § 775; Bliss, Code Pl. § 375, and cases cited.

The judgment and order should be reversed, cause remanded, and the court below directed to permit the plaintiff to dismiss his action, on payment of costs and disbursements accruing up to the date of the order refusing to dismiss the same.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded, with directions to permit plaintiff to dismiss his action, on payment of costs and disbursements accruing up to the date of the order refusing to dismiss the same.

1. NOTICE OF MOTION FOR NEW TRIAL-TIME FOR-EXTENSION OF. The right to move for a new trial being given by statute must be made within the statutory time, as no power is given to the superior court or its judges to extend the time beyond the statutory period. An objection that such a notice was not given in time must be taken in the court below, or it will be deemed to have been waived.

2. ACTION OF CLAIM AND DELIVERY-JUSTIFICATION UNDER ATTACHMENT.

In an action of claim and delivery against a constable for goods levied upon under a writ of attachment, regular upon its face, and issued by an officer having proper jurisdiction of the subject, such writ is admissible in justification of the act of the officer.

3. SAME-OWNERSHIP OF PROPERTY-EVIDENCE-CROSS-EXAMINATION.

In an action of claim and delivery, where defendant denies plaintiff's ownership, and plaintiff introduces evidence to establish it, and that the property in question was in possession of the person from whom defendant took them on a writ of attachment, under a contract of sale, the defendant may, on cross-examination of the plaintiff, show that the alleged contract of sale was in fact a sale in præsenti, or that such contract did not include all the goods levied on. 4. SAME-FORM OF JUDGMENT IN ACTION.

In an action of claim and delivery, a judgment in plaintiff's favor must always be in the alternative, as required by statute, though the property has already been delivered to plaintiff. Code Civil Proc. Cal. § 667.

Commissioners' decision.

Department 1. Appeal from superior court, county of Stanislaus. P. J. Hazens and J. C. Simmons, for appellant.

C. C. Wright and W. L. Dudley, for respondent.

SEARLS, C. Action to recover personal property. Plaintiff had judgment, from which, and from an order denying a new trial, defendant appeals. The verdict of the jury was rendered, and judgment entered thereon December 7, 1882. Notice of motion for a new trial was served and filed December 18, 1882, more than 10 days after verdict and judgment, and respondent claims here for the first time, so far as is shown by the record, that the motion came too late, and that the validity of the proceedings, so far as involved in the motion for new trial, cannot be considered. (1) A party intending to move for a new trial must, within 10 days after verdict, file with the clerk and serve upon the adverse party a notice of such intention. Code Civil Proc. § 659. (2) The right to move for a new trial is statutory, and no power is given to the superior court, or a judge thereof, to extend the time for giving notice of such motion. Section 1054 of the Code of Civil Procedure does not authorize such order. (3) Objection, however, that a notice of motion for new trial is not given in time must be taken in the court below, or it will be deemed to have been waived, and the time extended by consent of parties, and such objection cannot be taken for the first time in this court. Patrick v. Morse, 64 Cal. 462; S. C. 2 Pac. Rep. 49; Gray v. Nunan,