the court seems to be in part founded on a statute peculiar to that state, and the doctrine laid down in the Georgia cases has been discredited in other jurisdictions, and especially by Freeman in his note to Harris v. Simpson, 14 Am. Dec. 101.

On the other hand, it has been held that where the amount of the bail-bond has been fixed, or the bail-bond accepted and approved, by an officer not authorized by the law so to do, such bail-bond is entirely void, in the following states, viz : Kentucky, Oregon, Colorado, Massachusetts, Indiana, Texas, New Jersey, Maine, Nebraska, Ohio, Missouri, and other

(Commonwealth v. Roberts, 1 Duvall, 199; Williams v. Shelby, 2 Or. 145; Rupert v. People, 20 Colo. 424, [38 Pac. 702]; People v. Mellor, 2 Colo. 705; Haney v. People, 12 Colo. 345, [21 Pac. 39]; State v. Winninger, 81 Ind. 51; State v. Russell, 24 Tex. 505; State v. Kruise, 32 N. J. L. 313; State v. Young, 56 Me. 219; Dickenson v. State, 20 Neb. 72, [29 N. W. 184]; Harris v. Simpson, 4 Litt. 165, [14 Am. Dec. 101]; Powell v. State, 15 Ohio, 579; People v. Brown, 23 Wend. 47; Gouchman v. Lisle, 15 Ky. L. R. 543.)

In Williams v. Shelby, 2 Or. 145, a justice without authority took the bail-bond, and the court said: "There was no statute in existence at the time of the proceeding authorizing the justice to take such a bond; therefore it must be treated as void. ([Vose v. Deane, 7 Mass. 280; Commonwealth v. Otis], 16 Mass. 199; [Commonwealth v. Loveridge], 11 Mass. 337; [People v. Brown], 23 Wend. 47). The circuit court held that although there was no statute then in existence authorizing the taking of this bond by the justice, yet it might be sustained and held valid as a common-law undertaking; that the discharge of the principal for the time being was a sufficient consideration to sustain the promise and agreement entered into. This holding we think cannot be sustained by the authorities; in fact, none have been produced to that effect. Authority has been cited to this effect, that another class of bonds might well be sustained from their form and structure without the aid of statute, such as injunction bonds, replevin bonds, bail-bonds in civil cases, forthcoming bonds, appeal bonds, and all such as are made payable to the beneficiary or interested party. Such have been held valid at common law, without resorting to the stat

ute to give them effect, but it is held otherwise in criminal

In Rupert v. People, 20 Colo. 424, [38 Pac. 702], the Oregon case just referred to is cited, and the court said: "The recognizance, therefore, having been taken and approved by an officer without authority is void, both as a statutory bond and as a common-law obligation."

To the same effect are Morrow v. State, 5 Kan. 563; United States v. Goldstein, 1 Dill. 413, [Fed. Cas. No. 15,226]; Vose v. Deane, 7 Mass. 280; Commonwealth v. Loveridge, 11 Mass. 337.

In State v. Winninger, 81 Ind. 51, it is said: "It is well settled that a bond or recognizance taken by a court without jurisdiction, or an officer without authority, is utterly void."

In Benedict v. Bray, 2 Cal. 251, [56 Am. Dec. 332], and People v. Cabannes, 20 Cal. 529, it was held that a bond exacted by a justice of the peace without authority was void.

In Commonwealth v. Roberts, 1 Duvall, 199, after holding that a bond taken without authority is void, the court said: "It is not within the province of courts to invest persons with authority to take bonds and discharge prisoners from custody, from whom the legislature have withheld such authority; nor should courts, by recognizing such as binding on either party, contravene the policy of the commonwealth in designating by law the officers authorized to bind her."

Inasmuch as the warrant and bond clerk has no authority to fix the amount of bail to be given for the release of persons charged with crime, to hold the bond in this case valid would be for this court, in a measure, to sustain a practice whereby persons charged with crime might be released from custody contrary to the plain mandate of the statute. This we cannot do.

The judgment appealed from is affirmed.

Cooper, J., and Harrison, P. J., concurred.

[No. 215. First Appellate District.-September 27, 1905.]

In the Matter of the Estate of PAUL BOUYSSOU, Deceased, JEAN BOUYSSOU, Appellant, V. ALEXANDRE VAYSSIE, Respondent.

APPEAL JURISDICTION IN PROBATE MATTERS.-Appellate jurisdiction in probate proceedings is limited to such probate matters "as may be provided by law," and does not extend to any cases not enumerated in section 963 of the Code of Civil Procedure. ID. NON-APPEALABLE AND APPEALABLE ORDERS-VACATING REFUSAL OF PROBATE-VACATING APPOINTMENT OF ADMINISTRATOR.-An order vacating an order refusing probate of a will is non-appealable, and an appeal therefrom will be dismissed; but an order vacating the appointment of an administrator is appealable, and a motion to dismiss an appeal therefrom will be denied.

ID. ORDER SINGLE IN FORM-DISTINCT

PROCEEDINGS-DISTRIBUTIVE CONSTRUCTION.-An order single in form granting a "motion to vacate order refusing probate of will and appointing administrator,'' relates to wholly distinct proceedings, and is to be construed distributively, as containing separate non-appealable and appealable orders.

MOTION to dismiss appeals from an order of the Superior Curt of the City and County of San Francisco vacating an order refusing probate of a will and from an order vacating the appointment of an administrator. Frank H. Kerrigan, Judge.

The facts are stated in the opinion of the court.

Philip L. Manson, and Lucius L. Solomons, for Appellant. Jacob Samuels, and Oscar Samuels, for Respondent.

HARRISON, P. J.-A document purporting to be the last will and testament of the above-named deceased, together with a petition for its probate, was filed with the superior court in and for the city and county of San Francisco November 2, 1904, and on November 17th the court made an order denying it probate. Thereafter, December 9th, upon the application of the respondent herein, an order was made by the court vacating this order of November 17th. From I Cal App. 42

this latter order an appeal was taken by the administrator of the estate. The respondent now moves to dismiss the appeal upon the ground that it is a non-appealable order.

The constitution has conferred upon the supreme court appellate jurisdiction only in such probate matters "as may be provided by law"; and in section 963 of the Code of Civil Procedure the legislature has enumerated such matters as it has deemed appropriate to have reviewed by the supreme court. An order revoking an order refusing to admit a will to probate is not named in that section, and consequently is not within the appellate jurisdiction of the supreme court. (See Estate of Cahill, 142 Cal. 628, [76 Pac. 383].)

The appeal herein purports to be taken by the administrator of the estate of the above-named decedent, and at the hearing of the motion it was urged on his behalf that, as an order revoking letters of administration is expressly made appealable by section 963, the appeal from that portion of the order should not be dismissed. The bill of exceptions merely refers to the order of November 17th as "denying probate of will and appointing administrator," without setting forth the order at length, and the order from which this appeal is taken is in the following words: "Motion to vacate order refusing probate of will and appointing administrator granted."

Although this is in form a single order, yet, as the order refusing probate of the will and the order appointing appellant as administrator were distinct proceedings before the superior court, this order revoking them must be read distributively and regarded as severally applicable to the former orders. The proceedings for the appointment of an administrator of the estate of a deceased person and for admitting a will to probate are entirely distinct, and are conducted upon different lines of procedure. The appointment of an administrator with the will annexed is to be made in the manner as provided for the granting of letters in cases of intestacy. (Code Civ. Proc., secs. 1350, 1426.) There is nothing in the bill of exceptions which indicates that the appointment of the appellant as administrator of the estate of the deceased did not proceed upon a record separate from that for the probate of the will, or that it was in any respect dependent upon the order denying probate to the will; and as

the order vacating this appointment is appealable the respondent's motion to dismiss the same must be denied.

The appeal from the order vacating the order denying probate to the will is dismissed. The motion to dismiss the appeal from the order vacating the appointment of an administrator is denied.

Hall, J., and Cooper, J., concurred.

[No. 35. Third Appellate District.-September 28, 1905.]

JOSEPH

R. ENSCOE, Respondent, V. JOSEPH H FLETCHER, Administrator of Estate of W. E. McNeil, Deceased, Appellant.

ESTATES OF DECEASED PERSONS-CLAIM UPON NOTES-ACTION UPON REJECTED CLAIM-SUFFICIENCY OF COMPLAINT.-Although, where a claim against the estate of a deceased person is rejected in whole or in part, a recovery in an action thereon is limited to the items of the claim rejected, yet, where action is upon the identical notes rejected, and additional facts stated in the complaint are merely explanatory of the demand, and no different contract is stated from that set forth in the claim, the cause of action is upon the claim; and the complaint is not rendered objectionable because of the mere segregation and lumping of certain classes of items not affecting their amount.

ID. DEATH OF PAYEE-DISTRIBUTION OF NOTES TO JOINT MAKER AS HEIR CLAIM AGAINST CO-MAKER-CONTRIBUTION NOT INVOLVED.Where the notes sought to be enforced were never paid to the original payee, and after his death were distributed to one joint maker as heir of the payee, the only effect of such distribution was merely to extinguish the equitable share of the liability of such joint maker, and he is entitled by succession to the rights of the payee, by operation of law, to enforce one-half of the liability upon the notes as a claim against the estate of the deceased co-maker. No claim for contribution is involved in such case.

APPEAL from a judgment of the Superior Court of Plumas County. C. E. McLaughlin, Judge.

The facts are stated in the opinion of the court.

J. D. Goodwin, and U. S. Webb, for Appellant.