6 and remain inviolate forever,' applies only to civil and criminal cases in which an issue of fact is joined. The language was used with reference to the right as it exists at common law. * * * It is in this common-law sense that the language has always been regarded by the Courts of this State. It is a right secured to all,' and inviolate forever, in cases. in which it is exercised in the administration of justice according to the course of the common law, as that law is understood in the several States of the Union. It is a right, therefore, which can only be claimed in actions at law, or in criminal actions where an issue of fact is made by the pleadings. It is, therefore, quite immaterial whether an action of divorce be a case in equity or not, so long as it is a case in which the right of trial by jury did not exist at common law, or otherwise, the clause of the Constitution relied on does not apply to it. Application denied. DEPARTMENT No. 2. [Filed October 29, 1883.] No. 7648. DOERFLER, RESPONDENT, v. SCHMIDT, APPELLANT. Appeal from Superior Court, Alameda County. Thos. Watt for respondent. H. S. Mulford for appellant. By the COURT: The proof of service of the summons was insufficient. Maynard v. McCrellish, 57 Cal., 355, was decided upon a similar state of attempted proof. The statement in the affidavit used on the motion to set aside the default cannot be deemed a waiver of the service. We cannot look beyond the judgment roll for the purpose of ascertaining the validity of the judgment. It is argued that the complaint does not state facts sufficient to constitute a cause of action, in that he does not aver a delivery of the deed. We think the point is well taken. Judgment and order reversed and cause remanded for further proceedings. IN BANK. [Filed November 5, 1883.] No. 8590. IN THE MATTER OF THE ESTATE OF PHILIP G. MARREY, DECEASED. APPEAL-EXECUTOR-CLAIM. Appeal of executor from a decree of settlement and distribution dismissed. He cannot in any case litigate the claim of one legatee as against the others at the expense of the estate. ID. A fortiori when he himself is the legatee whose claim he is attempting to maintain, at the expense of the estate, in his capacity of executor. MCKINSTRY, J., delivered the opinion of the Court: The appeal of the executor from the decree of settlement and distribution must be dismissed. He cannot, in any case, litigate the claim of one legatee as against the others at the expense of the estate. (Bates v. Ryberg, 40 Cal. 466.) A fortiori when he himself is the legatee whose claim he is attempting to maintain, at the expense of the estate, in his capacity of executor. Appeal dismissed. We concur: Ross, J., Myrick, J., Sharpstein, J. DISSENTING OPINION. I dissent. In my judgment the appeal is taken by the legatee, and not by the executor. The legatee and the executor are one and the same person. The notice of appeal is as follows: "You will please take notice that Roderigo Wilkinson, the executor of the last will and testament of Philip Gonzalez Marrey, hereby appeals to the Supreme Court of this State from the decree of settlement and distribution of said estate therein made and entered in the said Superior Court on the 30th day of June, A. D. one thousand eight hundred and eighty-two. As I read this notice, the words "the executor of the last will and testament of Philip Gonzalez Marrey," following "Roderigo Wilkinson," are merely descriptive of the individual as the same person who was the executor of the last will and testament of the testator named, and does in no manner signify that he appeals in his capacity as executor. The construction that the appeal is taken by Wilkinson as executor, appears forced and is not justified by the words used. In a question of doubt the rule Benignae faciendae sunt interpretationes propter simplicitatem laicorum ut res magis valeat quam pereat applies, a rule that has been applied to a great variety of documents. (See Roe v. Tranmarr, Willes, R. 682, and notes to this case in 2 Smith's Lead. Cas. 511, 515; Broom's Leg. Max., pp. 521-2, etc.,) and we see no reason why it should not apply to a notice of appeal. Under the benign operation of this rule, the appeal is not allowed to perish but is preserved. THORNTON, J. I concur: McKee, J, IN BANK. [Filed November 5, 1883.] EX PARTE BENNINGER. ORDINANCE-SAN BERNARDINO. The objections to the so-called "liquor license law," adopted by the Board of Supervisors of San Bernardino, that it was adopted at a time when the Board was not legally in session, and that it is unreasonable and oppressive and in restraint of trade, are held untenable. ID. Section 22 of the "County Government Act" did not put an end to the May session of the Board which was legally commenced and continued under Section 4032, Political Code. It is not so inconsistent with the last-mentioned section as to annul a meeting legally existing at the time it went into effect. Appeal from Superior Court, San Bernardino County. Byron Waters and H. M. Willis for petitioner. By the COURT: The petitioner is in custody under a warrant of arrest duly issued upon a complaint charging him with a violacion of a certain ordinance adopted by the Board of Supervisors of San Bernardino County, which he claims to be void. The ordinance is said to be void for two reasons: first, because adopted at a time when the Board was not legally in session, and, secondly, for the reason that it is unreasonable, oppressive and in restraint of trade. It was adopted pursuant to the Act of the Legislature approved and which went into effect March 13, 1883. (Stats. 1883, p. 297.) At that time Section 4032 of the Political Code read: "The regular meetings of the Boards of Supervisors must be held at their respective county seats on the first Mondays in May, August, November and February of each year, and must continue from time to time until all the business before them is disposed of. * * *" Pursuant to this authority of law the Board of Supervisors of San Bernardino County met in regular session on the 7th day of May, 1883. Not concluding its labors on that day, it adjourned until the next, and so on to and including the 16th day of May, on which day the ordinance in question was adopted. We do not understand counsel to deny that the Board was legally in session on the 16th of May, unless it be that it was deprived of the power to act by reason of Section 22 of the Act commonly called the County Government Act, which, it is said, went into effect on the 14th of May. That section reads: "The Board of Supervisors must by ordinance provide for the holding of regular meetings of the Board at their respective county seats." We do not think this section put an end to the May session of the Board, which was legally commenced and continued under Section 4032 of the Political Code. It is not so inconsistent with the last mentioned section as to annul a meeting legally existing at the time it went into effect. Nor do we think the provisions of the ordinance come within the rule that would justify us in declaring it void because unreasonable, oppressive or in restraint of trade. Writ dismissed and prisoner remanded. IN BANK. [Filed October 12, 1883.] No. 10,821. THE PEOPLE, RESPONDENT, v. GEORGE A. WHEELER, APPELLANT. Appeal from Superior Court, San Francisco. Attorney General for respondent. C. H. Wolff for appellant. By the COURT: This cause was submitted without oral argument, no points or authorities being on file. Leave was granted to file briefs within a specified time, which time was extended. Such extension of time has expired, and no briefs, points or authorities have been filed. We therefore have not had the aid of counsel in the examination of the case. We have, however, carefully examined the transcript, and we find no error. The judgment and orders appealed from are affirmed, and the cause is remanded for further proceedings according to law. DEPARTMENT No. 1. [Filed November 7, 1883.] No. 8956. HARVEY, RESPONDENT, 0. FOSTER AND KRAFT, APPELLANTS. SHERIFF-ATTACHMENT-EXECUTION-SURPLUS. The action was against defendants (Foster, Sheriff, and Kraft, mortgagee), to recover a surplus remaining after satisfaction of Kraft's foreclosure decree, under which Kraft purchased the premises. It was alleged that, by collusion between Foster and Kraft, the latter retained such surplus. Before foreclosure proceedings an attachment suit had been commenced by plaintiff against the mortgage debtor, Logan, and levied on the mortgaged land. After foreclosure decree, plaintiff obtained judgment, execution issued, and as to nearly all of it defendant, Sheriff, returned the execution unsatisfied. On the trial of this action objection was made to plaintiff's affidavit for attachment against Logan, as having been insufficient. Held the lien of the attachment was valid as against defendants. ATTACHMENT AFFIDAVIT. Whatever irregularities may exist in the proceedings of an attaching creditor, other attaching creditors cannot make themselves parties to those proceedings for the purpose of defeating them on that account. ID. Any irregularities in obtaining an attachment are waived by the defendant to the action when he appears and answers, without the taking advantage of them by motion or otherwise, in the course of the proceedings. SHERIFF ACTIONS AGAINST. A Sheriff cannot make any defense inconsistent with his return. He is concluded by his return when it is set up by any party who may claim something under it. ID. Where at a judicial sale property brings more than the amount of the execution, if the officer fails to pay the excess, or see to it that it is paid to the defendant, he and the sureties on his official bond are liable in an action of debt at the suit of the defendant for the excess. ID. An action may be maintained by the execution creditor for money collected by the Sheriff upon an execution. ID. Statutory remedies are cumulative, and leave the common law remedies unimpaired. FINDINGS. As the answer consists only of general and specific denials of the averments of the complaint, the finding "that all the allegations of the plaintiff's complaint are true" covers all the issues of fact. Appeal from Superior Court, Tehama county. Chadburne and Ellison for respondent. Cadwalader and Chipman & Garter for appellants. MCKISSTRY, J., delivered the opinion of the Court: As the answer consists only of general and specific denials of the averments of the complaint, the finding "that all the |