"First. The value of the property sought to be condemned, and all imSecond. If the provements thereon pertaining to the realty. * * * property sought to be condemned constituted only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff. Third. Separately, how much the portion not sought to be condemned * * * will be benefited, if at all, by the construction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed under subdivision 2, the owner of the parcel shall be allowed no compensation, except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value. * * * Fifth. As far as practicable, compensation must be assessed for each source of damages separately."

The court submitted to a jury certain issues which were passed upon, and as to other issues the court passed upon them. Among the questions propounded to the jury was the following:

"Second. Upon the twenty-third day of August, 1883, what was the value of the property of the defendant sought to be condemned-that is to say, of the land of defendant situated and embraced in the right of way sought to be obtained, and the value of all improvements thereon pertaining to the realty?"

To which the jury returned:

"Answer. We, the jury, find damages: On the road-bed, $41.25; on eighteen panels, $30. Total, $71.25."

It is objected that this finding does not ascertain the value of the land. The question was placed before the jury in proper form, and while the answer does not expressly say the damages found are the sum of that value, we think the inference to be deduced from the answer is, that they found the value of the land to be $41.25 and the improvements $30, making a total of $71.25. The statute requires the value of the land or property to be taken and all improvements thereon pertaining to the realty to be valued, but does not require the improvements to be assessed separately from the land, and if we discard the whole answer of the jury except the final summing up of "Total, $71.25," it would, we think, be in form sufficient.

The jury further found that the property sought to be condemned formed a part of a larger parcel belonging to defendant, and that the portion not sought to be condemned would be damaged to the extent of $728; and in answer to the question, "How much will the portion not sought to be condemned be benefited, if at all, by the construction of the proposed road?" the jury replied: "We, the jury, find benefits to the land on the north side of said road at $649.25." As to the land south of the road the finding must be construed as saying there was no benefit to be received from the road, or as a failure to find. As the benefit, if any, is to be deducted from the damage occasioned by taking a portion only of defendant's land, he cannot, in any event, be injured by the failure to find a benefit. The value of the land was under the issue ascertained as of August 23, 1883, the

date at which summons in the, case issued, as provided in section 1249 of the Political Code. It is urged by appellant that the market value of the land at the time of trial is the true measure of damages, and that the provision of the Political Code (section 1249) fixing the date of summons as the time at which to ascertain the value is in derogation of the constitution, and we are referred to California Southern R. Co. v. Colton Land & Water Co., 2 Pac. Rep. 38, as sustaining this contention. That case reversed the judgment of the court below, but a rehearing was granted, and on the twenty-fifth of July, 1884, the court in bank rendered a decision affirming the judgment of the court below, (4 Pac. Rep. 414,) upon the authority of California Southern R. Co. v. Kimball, 61 Cal. 90.

In the case last quoted the constitutionality of section 1249 of the Political Code was upheld as not being in conflict with section 14 of article 1 of the constitution. It appears by the findings that on the eighteenth day of June, 1883, the board of supervisors ordered the sum of money awarded by them to the defendant as damages to be set apart in the treasury, out of the road fund of Butte Mountain road-district, to be paid to the defendant, and it appearing that the treasurer had not at the time set apart to that road-district the money to which it was entitled for that year, and that the moneys to which said district was entitled were in the general fund of the county, the said board thereupon ordered a warrant drawn upon the general fund by the auditor in favor of A. J. Loomis, the county treasurer, for the amount set apart to defendant, and on the following day the treasurer set apart the money for defendant. What the statute requires is immediate payment to a party in whose favor damages are awarded or that the money to make such payment shall be appropriated and set apart to await his acceptance at any time during the 10 days given him to elect whether or not he will accept. The statute should, however, receive a reasonable construction. The several orders necessary therefor and the act of setting apart the amount awarded cannot all be executed in an instant of time, and, where it appears, as here, that the county had the means at hand to meet the demand, and nothing was wanting but the time to execute the several orders necessary to transfer the fund, and that it was properly placed and held for the defendant within a day, then as against a party who has not demanded, and who has refused to receive the damages thus awarded and set apart for him, we think compliance with the statute was sufficiently certain and prompt. Had defendant demanded the damages awarded him, or shown a willingness to accept the same, the question of the delay would have been open to consideration.

The act of February 28, 1883, repealed chapter 2 of title 6 of part 3 of the Political Code. Also "all laws concerning roads and highways in conflict with this act, and all laws applicable to particular counties of this state, concerning roads and highways, are hereby repealed." It is contended by appellant that the effect of repealing the

former law, coupled with the fact that by section 2641 the boards of supervisors of the several counties are required to divide their respective counties into suitable road-districts, and may change the boundaries thereof, must be construed as repealing all the existing roaddistricts, and as Butte Mountain road-district was organized by the board of supervisors before the passage of such act, its existence ceased with the repeal of the former law. We cannot accede to this view of the law. Road-districts, under the former law, were created by the ordinances or orders of the boards of supervisors, and the repeal of the law under which they acted did not have the effect of invalidating their lawful acts performed while the law was in force. It might, we think, with equal propriety, be contended that an act of the legislature abolishing a court organized by virtue of a statute, rendered its judgments previously rendered null and void. It is true the statute, as amended in 1883, made it the duty of the supervisors to divide their counties into road-districts, but until this was done all districts in existence under former laws continued to be and remain as such. Hull v. Superior Court, 63 Cal. 174. The object of the new law was not to bring back chaos, but to establish a uniform system governing the highways of the state.

We cannot refer in detail to all the objections made by appellant to the proceedings in the court below. None of them are, as we think, of such a character as to demand a reversal of the judgment, which, with the order denying a new trial, should be affirmed.

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

BY THE COURT. For the reasons given in the foregoing opinion the Judgment and order are affirmed.

(68 Cal. 82)

SPENCER v. HOUGHTON.

(No. 8,162.)

Filed November 25, 1885.

1. GUARDIAN OF MINOR'S ESTATE-BOND OF SUBSTITUTED BOND-LIABILITY OF SURETIES ON.

The probate court had power under the California probate act, made applicable to guardians by the act of March 27, 1857, to take a new bond from the guardian of a minor's estate in place of a former bond, and the sureties on the former bond are not responsible for any default of the guardian occurring after the filing of such substituted bond.

2. GUARDIAN-ACCOUNTING BY-SERVICE OF CITATION ON.

The sureties on a guardian's bond are not bound by an order of the probate court adjudging the amount due by such guardian upon an accounting instituted by the ward, unless notice of the proceeding was given to the guardian by citation, in conformity to the statute, (Cal. Code Civil Proc. § 1707 et seq.,) and the mere service on the guardian of an order of the court directing him to file an account is not sufficient but the citation is to be served in the same manner as a summons in a civil action; and consequently if the guardian has left the state, the citation should be served on him by publication; and such service is sufficient to give the court jurisdiction to bind the guardian by its order made on settlement of his account.

3. BOND-RELEASE OF ONE SURETY RELEASES ALL.

By the provisions of the California statute prior to the adoption of section 1543 of the Civil Code the release of one surety on a bond was a release of all, and therefore if the contract of suretyship was entered into prior to the onactment of such section, and one of the sureties is released subsequent thereto, all are released thereby, the right of the co-sureties to such release being a vested right of which the legislature could not deprive them by the enactment of the aforesaid section of the Code which alters the rule.

In Bank. Appeal from superior court, city and county of San Francisco.

John Reynolds, for appellant.

Taylor & Haight, for respondent.

THORNTON, J. This is an action against a surety on the bond of the guardian of plaintiff. The facts are correctly stated in an opinion of Justice Myrick herein, filed April 28, 1885, (6 Pac. Rep. 853,) and we adopt that statement, which is as follows:

While the plaintiff, Josephine M. Spencer, was a minor, (then Josephine M. Richardson,) W. Harney was the guardian of her person and estate. In 1870 he was discharged as such guardian, and H. M. Hastings was appointed in his stead, and after qualifying Hastings received from Harney $10,000 and upwards, property of the ward. Hastings' bond was in the sum of $28,000, with E. B. Mastick and A. A. Cohen as sureties (jointly and severally with Hastings) in the sum of $14,000, and with H. P. Livermore and H. H. Haight as sureties (jointly and severally with Hastings) in the sum of $14,000. On the fourteenth of September, 1871, Livermore filed a petition in the probate court to be discharged from liability for future acts of his principal, and such proceedings were had that (on waiver by Hastings of service of citation) the court made an order that said Hastings give other security in place of Livermore, as prayed for in said petition. On the twenty-first of September, 1871, and in pursuance of such order, said IIastings and the defendant herein, S. O. Houghton, executed a bond to said ward by which, after reciting the facts of the execution of the former bonds, the petition of Livermore and the order for other security, they bound themselves-Hastings as principal and Houghton as surety-in the place and stead of Livermore, jointly and severally in the sum of $14,000, portion of the sum of $28,000, the condition of the bond being that if said Hastings, as guardian, faithfully execute the duties of his trust according to law, the bond should be void, else to remain in full force and effect. On the tenth day of January, 1872, the said H. H. Haight filed a petition praying to be released from all responsibility on account of future acts of said Hastings, and such proceedings were had, Hastings having waived service of citation, that on the same day the court made an order that said Hastings file another bond in the sum of $24,000, it then appearing that the personal estate of the ward did not exceed $12,000. Hastings accordingly, on the nineteenth of February, 1872, filed a bond in the sum of $24,000, with sureties as follows: S. A. Hastings and B. S. Brooks, jointly and severally, in the sum of $6,000, portion of said sum of $24,000; John Currey and T. I. Bergen, jointly and severally, in the sum of $6,000, portion as aforesaid; S. W. Holladay and H. K. W. Clarke, jointly and severally, in the sum of $6,000, portion as aforesaid; and Earl Bartlett and J. H. Smyth, jointly and severally, in the sum of $6,000, also portion as aforesaid. Upon the approval of this bond an order was made by the probate court that said Mastick, Cohen, and Haight, sureties on the former bond, be released from all responsibility for the future acts of the guardian. The name of the defendant, Houghton, was not included in this order. On the eighteenth of October, 1877, after the said Josephine had attained majority, she executed

to Haight, Mastick, and Livermore an instrument acknowledging the receipt from them of $1,500, and releasing them from all liability on the bond executed by them. On the tenth of September, 1877, she executed a like release to A. A. Cohen, acknowledging the receipt of $500.

The said IIastings departed from this state in the fall of 1872, and never returned. The said Josephine attained majority February 11, 1874. The said Hastings having failed to file an account, the said court, on the twentyfifth of March, 1878, on petition of the said Josephine, made an order that said Hastings file an account within 30 days after service on him of such order. No citation was issued, but a copy of the order was served upon Hastings on the tenth of April, 1878, at the city of Washington. Hastings did not file an account, and has never complied with the requirement of said order. After 30 days from the said service, the said Josephine, by her attorney, prepared an account from the records and papers on file in the probate court in said case, and filed the same, and petitioned the court that the same be allowed as and for the account of said Hastings. The said court thereupon fixed a day for the settlement of the account, and directed notice thereof to be given by posting. On the day fixed, the court appointed a referee to examine and revise the account, and after examination and the hearing of the evidence of witnesses produced by the said Josephine, the referee reported that there was a balance of $6,012 in favor of said Josephine due from said Hastings, and the court thereupon made an order settling the account as and for the final account of said Hastings, guardian, at the said sum of $6,012. Before the commencement of this action, plaintiff forwarded to Hastings a certified copy of the order settling the account, and demanded of him payment of the said sum due, but he refused and neglected to pay the same, or any part thereof. After the said Josephine attained majority she executed releases to several of the sureties, for the consideration of $500 each, viz., September 10, 1876, to A. A. Cohen, and October 18, 1877, to H. H. Haight, E. B. Mastick, and H. P. Livermore. It appears from the report of the referee that other sureties paid to Josephine the sum of $500 each, viz., T. I. Bergin, S. W. Holladay, Earl Bartlett, H. K. W. Clarke, B. S. Brooks, and S. A. Hastings.

The bond of the nineteenth day of February, 1872, was filed on that day by order of the probate court. The amount of the bond was fixed at $24,000 by the court in its order. This sum was double the amount of the ward's estate; and no doubt this was intended as a new bond to take the place of the former bonds. That the court had power to take a new bond and discharge the sureties on the bonds previously approved and filed, we have no doubt. The statute then in force gave such authority. See sections 78, 79, 80, 81, etc., of the probate act, made applicable to guardians by the act of twentyseventh of March, 1857, (St. 1857, p. 120.) This bond was, in our opinion, a new bond, given as a substitute for the other bonds, and the legal effect of it was that Houghton was not responsible for any defaults of the guardian occurring subsequently to the date of its filing on the nineteenth day of February, 1872. In other words, the taking a new bond in double the amount of the estate, which was the largest amount for which the court could require security, was substituting this last bond for the other bonds, and released Houghton from all defaults subsequently occurring. Lane v. State, 27 Ind. 108;

17. S. v. Wardwell, 5 Mason, 82. Whether the default of the guard