appeal was taken, or upon the dismissal of the appeal, the value of the use and occupation of the tract of land, for which recovery had been had, from the day of the taking of the appeal until the surrender of possession of the land; and thereby, the promisors became bound to pay an ascertainable sum of money, namely: the value of the use and occupation of the land between two specified and certain dates, upon the happening of a certain event. When the event happened the promisors became bound by their contractual obligations to pay the sum of money, as an entirety, and not otherwise; and a cause of action accrued in favor of the promisee to enforce that obligation: De Castro v. Clarke, 29 Cal., 17: Crane v. Weymouth, 54 Id., 476. The contract out of which the obligation arose being an express contract, it furnished the limits of the rights of the respective parties, and none others could be implied. The single object of the contract was the payment of an ascertainable sum of money, the obligation to pay was therefore indivisible; and as an indivisible obligation it cannot be carved into several causes of action. That would be making a new contract for the parties to which they did not assent. As the cause of action accrued on the thirtieth of January, 1872, and the action in hand was not commenced until the seventh of September, 1876, it was therefore barred by the statute of limitations. But it is urged, possession of the land was not surrendered within. the time of the statute of limitations. Nevertheless, upon the affirmance of the judgment, there not only accrued an enforceable cause of action for the value of the use and occupation of the land, but also an enforceable remedy for the recovery of its possession by a writ of restitution, which was issuable at any time within the statute of limitations. Before that was done however, the principal obligor in the present action, who had possession, enjoined, by a suit in injunction, the plaintiff in the judgment from which the appeal was taken, from issuing a writ of restitution upon the judgment after its affirmance. But assuming that as a fact, the possession was thenceforward held by him under a new contract, namely: the undertaking given in the injunction suit; and for any possession maintained under that contract the parties to it were liable; but the parties in this action were not parties to it, and therefore they are not bound by it. No. 9,505. RECLAMATION DISTRICT No. 3 v. GOLDMAN. Department Two. Filed September 30, 1884. RECLAMATION LANDS-FORECLOSURE OF LIEN OF ASSESSMENT PLAINTIFF-RES ADJUDICATA. - In an action to foreclose the lien of an assessment on reclamation lands, when the supreme court has reversed a judgment entered in favor of the defendant, after his demurrer had been sustained on the ground that the facts stated in the complaint did not constitute a cause of action, on a subsequent appeal in the same action, it will not hold that the action was brought in the name of the wrong plaintiff, as, for example, in the name of the reclamation district, instead of in the name of the people. RECLAMATION DISTRICT-FORMATION OF NOTICE OF MEETING.-The meeting for the reorganization of a reclamation district, under the act of March 28th, 1868, may be called by the swamp land clerk of the board of supervisors, as by the proviso to the forty-sixth section of such act the board is authorized to employ a clerk to attend to matters pertaining to swamp lands. THE SAME DUE PROCESS OF LAW-NOTICE-ASSESSMENT.--An assessment for the recla mation of swamp lands, which, according to the law of this state, can only be enforced by suit against the tax-payer, and in which notice must be given to, and an opportunity afforded, him to question the validity of the assessment, is not an infringement upon the provision of the United States constitution, which declares that no state shall deprive any person of property without due process of law. THE SAME FINDINGS-EVIDENCE-STATEMENT.-The finding that no statement, as required by the amended section 34, of the act of 1868, was ever presented by the board of trustees of the district to the board of supervisors, reviewed, and held not sustained by the evidence. THE SAME ASSESSMENT OF LANDS NOT BENEFITED.-Lands lying within a reclamation district, which would not be benefited by a proposed assessment, need not be assessed. THE TRUSTEES OF A RECLAMATION DISTRICT HAVE DISCRETION to make trifling deviations from the approved plans, or deviations which would result in benefit. APPROVAL OF FORMATION OF DISTRICT-ADDITIONAL ASSESSMENT.-The formation of reclamation districts previously existing, and reorganized under the act of 1868, need not be approved by the board of supervisors of the county in which the district is situated. As to such district, the board of supervisors have power, whenever the tax levied is insufficient to pay for the reclamation, or for necessary repairs, to make additional levies of assessments, upon revised estimates, furnished by the trustees. APPEAL from a judgment of the superior court for Sacramento county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts. J. S. Carey and G. W. Gordon, for the appellant. H. McKune, for the respondent. THORNTON, J. This action was instituted to foreclose the alleged lien of a delinquent assessment upon lands within a reclamation district, situate in Sacramento county. The district existed before, but was reorganized under the act of March 28, 1868, "to provide for the management and sale of the lands of the state: Stats. 1867-8, p 507. It is urged here on behalf of respondent that the judgment should be affirmed for the reason that the action is wrongly brought, that it is brought in the name of the district when it should have been brought in the name of the people. But when this cause was here before (6 Cal., 205), on appeal from the judgment, which had passed in favor of defendant by reason of a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, having been sustained by the court below, this court reversed the judgment, thus holding that the complaint was sufficient in its statement of facts. That the question here made is within the scope of the demurrer heretofore passed on, is held in People v. Haggin, 57 Cal., 387. If we were to hold on this appeal that the action was not properly brought, we would be practically overruling the decision on the former appeal. We would be holding now that the complaint did not state facts sufficient to constitute a cause of action, whereas we held then that the complaint, which is identical with the one before us on the former appeal, did state facts sufficient to constitute a cause of action. This we cannot do under repeated decisions of this court. The former decision becomes the law of the case: See Clary v. Hoagland, 6 Cal., 685; Davidson v. Dallas, 15 Id., 75; Mulford v. Estudillo, 32 Id., 131; Jaffe v. Skae, 48 Id., 540; Donner v. Palmer, 51 Id., 636. The same facts, so far as they relate to the question we are considering, are before us now as on the former appeal, and the judgment then rendered must constitute the law of the case in all its stages: See cases above cited. In view of this rule, which we regard as well settled in this state, we must hold that the question whether the action is properly brought in the name of the reclamation district is no longer open for decision. The plaintiff was organized in 1861, under the laws then existing. In 1871 it took steps to reorganize under the 43d section of the act of 1868 above referred to: Stats. 1867-8, pp. 507-519. It appears from the bill of exceptions that the plaintiff on the trial introduced in evidence the original record of the proceedings of the landowners of District No. 3, organizing the district in conformity with the provisions of section 43 above cited. But the meeting for the purpose of organization was called by Grove L. Johnson, who was at that time swamp land clerk for the board of supervisors of Sacramento county (in which county the district is situated). The statute (see section 43 above cited) requires that such meetings shall be called by the clerk of the board of supervisors. At the time these proceedings were had, to wit, in May, 1871, the county clerk was then ex-officio clerk of the board of supervisors. It is urged that the organization of the plaintiff into a reclamation district is void, and it can maintain no action for the reason that the meeting for such organization was not called by the officer designated by the statute, it having been called by the swamp land clerk. But we are of the opinion that the proviso to the forty-sixth section to the act of 1868 makes the swamp land clerk the clerk of the board of supervisors for the purpose of calling such meeting. By that proviso the board is empowered to employ a clerk to attend to matters pertaining to swamp lands, and among such matters, in our view, is that of calling a meeting of the land-owners concerned in the business of organizing under the act of 1868. The point that the due process of law guaranteed to the defendant and secured by the fourteenth amendment of the constitution of the United States, is violated in the assessment of defendant's property, is disposed of adversely to the contention of defendant by Hager v. Reclamation District No. 108: 111 U. S. Rep., 701-711. The case just cited, like the one under consideration, was brought to enforce the alleged lien of an assessment made on lands within a reclamation district formed under the act of 1868. The court held that such an assessment, according to the laws of this state, could be enforced only by suit against the taxpayer, in which notice must be given to the defendant and an opportunity afforded him to be heard respecting the assessment, and that in such suit the taxpayer may set forth, by way of defense, all his grievances. Where this opportunity to be heard respecting the assessment is afforded to the taxpayer in an action, there has been given him all that the guarantee of due process of law requires and secures, and he has nothing to complain of in regard to such process: See Reclamation District No. 108 v. Evans, 61 Cal., 104. We are of opinion that there is no violation of the constitution of the United States in the proceedings concerning the assessment involved in this case, and that it must be so ruled. This court is of opinion that the finding of the court below that no statement, as required by the amended section 34 of the act of 1868, (see statutes of 1871-2, p. 668), was ever presented by the board of trustees of the district to the board of supervisors of Sacramento county is not sustained by the evidence. It seems from the testimony of Sheehan, who was one of the trustees, that he, by authority of the board of trustees and under its direction, furnished all the data to their attorney, Grove L. Johnson, who prepared the statement under the direction of Sheehan and presented it on behalf of the board of trustees to the board of supervisors. The statement had to it the name of T. W. Sheehan; appended to his name is the word secretary. If the name of Sheehan was not signed to this statement in his own handwriting, it was done by Johnson by his authority. Sheehan testifies that the figures as inserted in it were such as he was authorized by the board of trustees at its meeting on the tenth day of July, 1876, to insert as well as the other things which appear in it. His testimony substantially amounts to this: That the contents of the statement were agreed on by the board of trustees at its meeting, to be reported to the board of supervisors in a statement, and he was authorized to have the statement prepared accordingly and presented to the board. There was no testimony to the contrary. It is said that the minutes of the meeting of July 10th are contrary to this, for the reason that more appears in the statement than in the minutes. We do not concur in this conclusion. Sheehan explains this in his testimony. He testified that the report made to the board of supervisors was based on estimates made by the board of trustees before he left the district. We think it satisfactorily appears from the testimony of the witness that if any amounts are inserted in the statement which do not appear in the minutes, that they were there inserted at the oral direction of the board of trustees. We can see no reasonable objection to this. The law does not require that the board shall keep any minutes or record of its proceedings. It is only required (section 36 of the act of 1868) to keep accurate accounts of all expenditures. If the law did require it to keep such record, what was done by the board at its meeting and not inserted in the record might be established by oral evidence. The defendant (respondent here) contends that the act of 1868 (Sec. 33), requires the board of trustees to report to the board of supervisors the plans of the work made by the engineer employed by it (Sec. 32); that no such plans were reported. But inasmuch as this is found adversely to the contention of respondent, and he is not the appellant, we are of opinion that the point is not before us for decision on this appeal. The commissioners on making the assessment of the cost of reclamation inserted in its assessment list a tract of land belonging to one McIntyre by a proper description in the same way as it inserted tracts of land belonging to other persons. A portion of that list is inserted in the bill of exceptions to show the manner in which this tract and other tracts were dealt with by the commissioners: EXHIBIT A. ASSESSMENT LIST FOR RECLAMATION PURPOSES UPON THE LANDS WITHIN SWAMP LAND DISTRICT NO. 3, SACRAMENTO COUNTY, CALIFORNIA. 4,252 70 Paid to D. E. Calahan, July 2d. 1,888.. 1877. Goldman, Chas... Swamp land sur- McIntyre, Geo... Swamp land sur vey No. 507.... 114.98 0,000.. From this it appears that no part of the estimated cost of reclamation was imposed upon the McIntyre tract, the charge against it being represented by a row of ciphers. It is here urged that this vitiated the entire assessment. It is found that the commissioners jointly viewed the lands in the district and assessed on these lands other than the McIntyre tract the whole assessment to be raised. The court below found that this piece of land was excluded from the assessment because it lies at the extreme lower end of Grand |