Pierpont v. Crouch. where it was held that the objection taken goes to the form rather than to the substance of the indictment. The second ground relied upon is frivolous. The allegation that the deceased at the time died of the wound inflicted, is a sufficient statement that the wound was mortal. The judgment sustaining the demurrer is reversed, and the cause remanded, with directions to the Court below to proceed and try the defendants upon the indictment. PIERPONT v. CROUCH. The twenty-fifth section of Article IV of the Constitution, which requires that every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title, is merely directory; it does not defeat laws passed in violation of it. A statute may be repealed by implication; and where a subsequent act is repugnant to a prior one, the last operates, without any repealing clause, as a repeal of the first; and where two acts, passed at different times, are not in terms repugnant, yet if it is clearly evident that the last was intended as a revision or substitute of the first, it will repeal the first to the extent in which its provisions are revised or substituted. APPEAL from the District Court of the Seventh Judicial District, County of Napa. The facts of the case sufficiently appear in the opinion of the Court. Langdon, Hopkins, and Pond, for Appellant. Pierpont for Respondent. FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring. The relator is the district-attorney, and the defendant is the auditor, of Napa county; and the question between them relates to the salary to which the relator is entitled for the quarter commencing on the first Monday of October, 1857. By the act of May, 1855, fixing the compensation of the district-attorneys of the several counties of the State, the yearly salary of the district-attorney of Napa county is fixed at one thousand dollars, but by the act of February, 1857, entitled "An Act to fix the Compensation of the County Judge and District-Attorney of Stanislaus County, and the District-Attorney of Napa County," the salary is limited to six hundred dollars. The Court below held that the relator was entitled to the salary under the act of 1855, and from its judgment directing the issuance of a warrant Pierpont v. Crouch. for the quarter's salary, at the rate fixed by that act, the appeal is taken. There is no assignment of errors on the part of the respondent, on file, but the positions urged in the Court below, as understood from the argument of the appellant, were, that the act of 1857 is void, because it embraces more than one object in its title, and that if not void, it does not supersede the act of 1855, as it does not repeal that act in direct terms. Neither of these positions were well taken. The twenty-fifth section of Article IV of the Constitution, which requires that every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title, is merely directory; it does not defeat laws passed in violation of it. This was expressly decided in Washington v. Page, (4 Cal., 388,) in which the Court, per Murray, C. J., said: "We regard this section of the Constitution as merely directory, and, if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must, in effect, obliterate almost every law from the statute-book, unhinge the business, and destroy the labor of the last three years. "The first Legislature that met under the Constitution, seems to have considered this section as directory, and almost every act of that and the subsequent sessions would be obnoxious to this objection." The object of the constitutional provision was to secure some congruity or connection in the subjects embraced in the same statute, but as the provision is merely directory, it can only operate upon the conscience of the law-maker. It creates a duty of imperfect obligation, for the infraction of which there is no remedy in the Courts. A statute may be repealed by implication as well as in direct terms; and it is well settled, that where a subsquent act is repugnant to a prior one, the last operates, without any repealing clause, as a repeal of the first; and where two acts, passed at different times, are not in terms repugnant, yet if it is clearly evident that the last was intended as a revision or substitute of the first, it will repeal the first to the extent in which its provisions are revised or substituted. (Rogers v. Watrous, 8 Texas, 62; Daviess v. Fairbairn, 3 How. U. S., 636; Sullivan v. The People, 15 Ill., 233; Leighton v. Walker, 9 N. H., 59; Dexter & Limerick Plank Road v. Allen, 16 Barbour, 18; Comw. v. Kimball, 21 Pick., 376; Harrison v. Walker, 1 Kelly, 32; Sedg. on Stat. and Cons. Law, 124.) If we apply this rule of construction to the two acts in question, the case is closed. They both provide for the salary of the district-attorney, and were evidently intended, in both cases, to fix its limit, and as the amounts designated are different, the last Green v. Covillaud. act must be considered, to the extent of the difference, as substituted for the first. Judgment reversed, with directions to the Court below to dismiss the application of the relator. GREEN et al. v. COVILLAUD et als. The law supposes that every suitor will state his case as strongly as the facts warrant; and hence the rule that a pleading is taken most strongly against the party making it. The case of Brown v. Covillaud, (6 Cal., 568,) which is a case very similar to this, in its main features, disposes of the whole matter of this bill, as it originally stood; and this Court feels no inclination to disturb that decision. A party seeking the legal enforcement of the stipulation of a concurrent obligation of the other party, must first show a compliance with his own. A Court of Equity will not enforce a specific performance of the agreement to convey lands when the plaintiff shows no compliance or offer of compliance on his part with the agreement, nor any excuse therefor, for the period of twenty-one or twenty-two months from the time he bound himself to perform. While time is not of the essence of the contract for the sale of land, ordinarily, yet in every case it will devolve upon the party seeking the relief to account for his delay, and, if there are circumstances showing culpable negligence on his part, or if the length of time which has been permitted to intervene, together with other circumstances, raise the presumption of an abandonment of the contract, or if the property has greatly enhanced in value in the meantime, and the purchaser has laid by apparently for the purpose of taking advantage of this circumstance, he will not be entitled to a decree in his favor. This rule is especially applicable to such contracts in this State. It is a cardinal rule in equity, as in all other pleading, that the allegata and probata must agree, and that averments material to the case omitted from the pleading can not be supplied by the evidence. APPEAL from the District Court of the Tenth Judicial District, County of Yuba. Thomas Elrod and Isaac Green filed their bill in the Tenth Judicial District against Charles Covillaud, J. M. Ramirez, William H. Sampson, G. N. Swezy, F. L. Aud, guardian of C. B. Sampson, a lunatic; S. C. Tompkins, executor of the estate of R. B. Buchanan; Minnie C. Buchanan, and George C. Briggs. The bill shows that the plaintiffs and one M. J. Turney and one Ezra Bligh, on the first of January, 1851, purchased of R. S. S. and said Buchanan, a tract of land near Marysville, containing about two hundred and twenty-six acres; that the purchase was made in consideration of $700, $100 being paid, and the balance in a promissory note, due first of October, 1851. That the endorsers executed, on their part, a bond, wherein they promised they would," upon the payment of the promissory note at its maturity," execute and deliver to the vendees or their representatives a good and sufficient deed of conveyance." That, at the time of this contract, the defendants gave the vendees the possession Green v. Covillaud. of the tract, with the exception of a few acres, which were in possession of defendant Briggs, he being a settler under the government, claiming as such; that a short time afterwards, Briggs, well knowing that the vendees claimed the same, and to wrong and defraud them, wrongfully entered upon, took possession, and inclosed a large portion of said tract, leaving vendees in possession of not exceeding one-half of the quantity of land purchased by them as aforesaid; that the vendees continued in possession of the tract of land until the twenty-fourth of November, 1854, when plaintiff Green sold all his interest in the land to one Amy, who, with plaintiff Elrod, and Turney and Bligh, continued in possession of the portion before occupied until November, 1852, when Amy reconveyed to Green, and then Green and the others continued in possession until the twenty-ninth of August, 1853, when Bligh conveyed to Green, and they (Elrod, Green, and. Turney) continued in possession until the fifteenth of May, 1855, when Turney conveyed to Green; and the plaintiffs have continued in possession to the time of filing the bill; that all these possessions have been with the knowledge and assent of the vendors; and vendees have made improvements to the value of $2000, and at all times asserted their right to the whole of the tract. "Plaintiffs further show that soon after the execution of said note and bond and agreement, and before the note became due and payable, the title of said defendants (vendors) to said tract of land, which title they represented to be good at the time of the execution of said instruments, became greatly clouded and embarrassed; that the said tract of land is supposed to be a part of, and embraced within, a certain Mexican grant, known as the Cordera grant, claimed by defendants, (vendors;) that on the third day of March, 1851, Congress passed the act to ascertain and settle land claims, etc.; a Board of Land Commissioners, etc., was appointed, to hear proof, etc.; that on the first of April, 1852, vendors filed their petition before this Board for confirmation of this grant; that on the twenty-seventh of March, 1855, the Board heard the petition, etc., and affirmed the claim; that from the time that the passage of said act creating said Board was known in California, which was before the note became due, until the twenty-seventh day of March, 1855, the date of the confirmation of the claim, there was much uncertainty and doubt throughout the community in respect to the validity of said grant, and that in consequence thereof, the title of the said defendants and said C. B. Sampson and Buchanan became greatly depreciated, by reason whereof they were wholly unable to sell or dispose of the land supposed to be embraced within said grant, or any portion thereof, at any price whatever; and the plaintiffs say that, owing to the uncertainty and doubt with respect to the validity of the said grant, they, the plaintiffs, and said Tur Green v. Covillaud. ney and Bligh, after their said purchase, and up to the time of the confirmation of said grant, were subjected to repeated harassments, interruptions and aggravations," by trespassers, etc., and their title was not sufficient to maintain an action at law. Plaintiffs further show that the note executed by them (Turney and Bligh) has never been presented to them, or either of them, for payment; that they have at all times been ready and anxious to pay said note and comply with their said agreement, whenever they could safely do so; but that by reason of the uncertainty of their title, it resting upon an inchoate Mexican grant, and being in a state of litigation between themselves and the government, the said vendees were not in a condition to comply with their agreement to execute a good and sufficient deed of conveyance to the said tract of land, as they promised, until the said twenty-seventh day of March, 1855, the time of the confirmation of the title as aforesaid; that afterwards, to wit, on the twenty-fifth day of April, 1855, plaintiffs and Turney (only parties then in interest) made a tender of $823 15, the amount then due on the note and interest, (at ten per cent. per annum,) which they refused to receive and execute a deed and surrender the note. The bill further charges that vendors sold to Briggs, in 1855, a portion of the land, etc.; the prayer is for the specific performance, etc. The bill is sworn to. The defendants demurred to it generally, specially, etc. The demurrer was overruled by the Judge below; and the defendants then answered, denying the allegations upon which the equity of the bill rested; setting up new matter, and pleading the Statute of Limitations of four years as a bar. In January, 1857, and after the decision in Brown v. Covillaud, (6 Cal. Rep.,) the plaintiffs obtained leave to amend their bill; and filed an amendment in these words: "The plaintiffs in the above-entitled cause, by leave of the Court, amend their original complaint, and say, that notwithstanding the doubt and uncertainty of the defendants' title to the land, as described in the original complaint, and their inabil ity to make a good and sufficient title and deed thereto until the twenty-seventh day of March, 1855, (the time of the confirmation. of their grant, as mentioned in the original complaint,) that in the summer of 1853, they (the plaintiffs) and the said M. J. Turney and Ezra Bligh-who then owned an interest in the tract of land, and in the bond and agreement executed by the defendants Charles Covillaud and J. M. Ramirez, William H. Sampson, G. N. Swezy, and the said R. B. Buchanan and Charles B. Sampson, as described in the complaint-tendered to the said defendants, and said R. B. Buchanan and Charles B. Sampson, the full amount of plaintiffs' said note, including principal and interest, and demanded of them a good and sufficient deed to the tract of land described in their bond and agreement, and in |