and conditions which are precedent in their nature, and oust the Courts of jurisdiction or bar the action of the plaintiff, and those which are not so, and as to which he may have his remedy for the recovery of damages."

This question was very ably considered in the House of Lords, in the case of Scott vs. Avery, House of Lords Cases, Volume V, page 811. Mr. Justice Coleridge there says:

66

If two parties enter into a contract for a breach of which in any particular an action lies, they cannot make it a binding term, that in such an event no action shall be maintainable, but that the only remedy shall be by reference to arbitration. Whether this rests on a satisfactory principle or not may well be questioned; but it has been so long settled that it cannot be disturbed. The Courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction which has been considered a right inalienable even by the concurrent will of both parties. But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject-matter of decision by the Courts. Covenanting parties may agree that in case of an alleged breach the damages to be recovered shall be a sum fixed, or a sum to be ascertained by A. B., or by arbitrators to be chosen in such or such a manner; and until this be done, or the nonfeasance be satisfactorily accounted for, that no action shall be maintainable for the breach." And in the same case Lord Campbell said: "There is an express understanding that no action shall be brought until the arbitrators have decided, and there is abundant consideration for that in the mutual contract into which the parties have entered; therefore, unless there is some illegality in the contract, the Courts are bound to give it effect. There is no statute against such a contract; then, on what ground is it to be declared illegal? It is contended that it is contrary to public policy; that it is a rather dangerous ground to go upon; I say that with great deference to your Lordships, after the view that was taken in a very important case lately decided in this house; but what pretense can there be for saying that there is anything contrary to public policy in allowing parties to contract, that they shall not be liable to any action until their liability has been ascertained by a domestic and private tribunal, upon which they themselves agree? Can the public be injured by it? It seems to me that it would be a most inexpedient encroachment upon the liberty of the subject if he were not allowed to enter into such a contract."

It is true that the contract in this case does not declare

that no action shall be brought until the amount of damages has been fixed; but that is the meaning and legal effect of the contract. In the case (50 N. Y.) referred to above, it is said: "When, as here, the agreement is that the covenantor shall pay such sum and only such sum, as shall be determined by arbitrators, the procuring an award is as clearly a condition precedent to an action as if the parties had added and no action shall be maintainable until after the award of the arbitrators.' Such a clause would be surplusage, and its insertion a work of supererogation. Mr. Justice Crowder, in making response to the question propounded by the Lords to the Judges in Scott vs. Avery, thus states the question and the answer to it: 'Can a ship-owner and an insurer enter into a valid agreement that the ship-owner shall pay down a given sum and that in consideration of such payment the insurer, upon the loss of a given ship, shall pay to the said owner, not the amount of loss sustained by her through the perils of the sea, but only such sum of money as shall be settled and ascertained by arbitration. I am not aware of any legal objection to such a contract, whatever may be thought of its prudence. And I think the effect of such a contract is that no action lies for the breach of it, until the sum has been ascertained by arbitration.' The Judge lays no stress upon the form of the contract, but regards the provision for determining the amount to be paid by arbitration as, in legal effect, postponing the right of action until after the award is made.

In view of the foregoing authorities, and the principle they announce (which we believe to be correct), no right of action accrued to the contractor for the extra work done

by him, until the same was valued, or some good and

sufficient excuse for a failure to value the same in accordance with the agreement was shown. In this case no valuation was made, and no reason is shown for a failure to make such a valuation. We are, therefore, of the opinion that the contractor was not entitled to recover anything for extra work.

There is one other point in the case which we will now proceed to notice. The contract provides that payments shall be made in installments as the work progresses, and also provides "that for each of said payments a certificate shall be obtained from and be signed by the architect, and also, that at the time of the presentation of either of the said certificates there be neither opposition against the said payments, nor any liens against the aforesaid building."

The Court find that before the fifth and last installment became due a lien was filed upon the building, and, therefore, such installment was not due and payable, according to the terms of the contract. The Court also decrees that the amount of this lien shall be deducted from the amount due the contractor at the time suit was brought, and it is claimed that the order of the Court deducting the amount of this from the amount due the contractor operated as a payment and discharge of said lien, and therefore the fifth and last installment was due and payable. It is a sufficient answer to the argument made in support of this proposition, that the parties have expressly contracted that if any lien upon the property shall exist at the time when an installment would otherwise be due and payable, the existence of such lien shall constitute a good and sufficient reason for the nonpayment thereof. This we understand to be the effect and meaning of the agreement, and it is simply the duty of the Court to enforce contracts as the parties have made them. There was no error, therefore, in the decision of the Court below refusing to allow the contractor the fifth installment. Judgment reversed and cause remanded for further proceedings in accordance with this opinion.

We concur: Ross, J., Myrick, J., McKinstry, J.
I concur in the judgment: Thornton, J.
I concur in the judgment: McKee, J.

DEPARTMENT No. 1.

[Filed December 10, 1880.]
No. 6426.

MORGAN CRAWFORD ET AL., RESPONDENTS,

VS.

CHARLES H. NEAL AND RUFUS NEAL, APPELLANTS.

COMPLAINT OF INFANT, SUING BY GUARDIAN, SHOULD SHOW APPOINTMENT OF GUARDIAN. A complaint by an infant, who sues by guardian, should show the due appointment of this guardian by way of proper allegation. COMPLAINT BY INFANT, NOT ALLEGING APPOINTMENT OF GUARDIAN, DEMURRABLE. When a complaint alleged that some of the plaintiffs were infants and sued by their guardian, ad litem, but there was no allegation as to the appointment of the guardian: Held, demurrable, on the special ground of want of legal capacity of the infants to sue.

Appeal from the District Court of the Fifth Judicial District, San Joaquin County.

J. H. Budd & Sons, for appellants.

D. S. Terry and Byers & Elliott, for respondents.

MCKEE, J., delivered the opinion of the Court:

This was an action to quiet title to a tract of land in San Joaquin county. Some of the plaintiffs to the action are infants, and it is stated in the complaint that they sue by their guardian ad litem, W. S. Buckley; but it is not stated or averred that the guardian was appointed by any order of the Court or Judge, so as to authorize him to sue. There is no averment at all as to his appointment; and because there is no such averment the defendant filed the following special demurrer, to wit: "That the plaintiffs, Charles Hough, Richmond N. Hough, Dela Hough, and John Hough, have not legal capacity to sue, being minors, and said amended complaint does not state nor show that any one is, or has been, appointed their guardian." The demurrer was overruled, and that is assigned as error.

At common law an infant could sue by guardian or prochein amy; but in suing by either it was necessary to show, by an express averment in the declaration, that he had been appointed by the Court for that purpose. In Cumbers vs. Walton, 1 Lev. Rep. 224, and Fitzgerald vs. Villiers, 3 Mod. Rep. 143, upon error assigned that no warrant was alleged of the admission of any guardian for the infant plaintiff, so that it might appear to be the act of the Court, it was held that it must appear that the guardian was admitted by the Court.

Under our Codes an infant cannot appear by a prochein amy; but it is provided by Section 372 of the Code of Civil Procedure, that when an infant is a party he must appear by his general guardian, or by a guardian appointed by the Court in which the action is prosecuted, or by a Judge thereof. This section is the counterpart of Section 115 of the New York Code, upon which the Courts of that State have held, that the necessity to show the due appointment of the guardian by the Court or Judge remains as at common law; and for the same reason that it is a traversable fact and must be so stated, that it may be traversed. (Stanley vs. Chappel, 8 Cowen, 235; Hurlburt vs. Young, 13 How. Pr. Rep. 414; Grantman vs. Thrall, 44 Barb. 173.)

It is urged that objection to the appointment of the guardian should have been made to the Court when it made the appointment, and that it is not ground for demurrer; but that is assuming what does not appear on the face of the complaint, that there was an appointment. Besides, appli

cations for such an appointment are made ex parte. (Sec. 373, C. C. P.)

It follows that the Court below erred in overruling the demurrer.

Judgment reversed and cause remanded to the Superior Court of San Joaquin County, with direction to sustain the demurrer and allow plaintiffs to amend their complaint. We concur: McKinstry, J., Ross, J.

DEPARTMENT No. 1.

[Filed December 8, 1880.]
No. 6729.

F. A. HIHN, RESPONDENT,

VS.

MARY H. SHELBY, APPELLANT.

HOMESTEAD CLAIM OF WIFE UPON UNDIVIDED INTEREST IN LAND OCCUPIED IN COMMON. When a wife lived with her husband and family upon land, which was owned in common by her husband and a third person, and which was held by them in joint occupancy, neither having exclusive possession of any part: Held, that under the provisions of the Homestead Act of March 9, 1868, further extended by Section 1237 of the Civil Code, the wife might file a valid homestead claim, not exceeding the limit allowed of land upon the undivided interest owned by herself and husband as common property.

Appeal from the District Court of the Twentieth Judicial District, Santa Cruz County.

A. Craig & F. Adams, for appellant.

C. B. Younger, for respondent.

Ross, J., delivered the opinion of the Court:

The disposition of this case depends upon the question whether a certain declaration of homestead, filed by the defendant, Mary H. Shelby, was valid or invalid.

At the time of the filing of the declaration, the premises embraced in it were owned in common by John L. Shelby, the husband of the declarant, and one Hinckley, each owning an undivided one-half. The interest of Shelby was the common property of himself and wife. Shelby, with his wife and her children, resided upon the land, as did also Hinckley-neither having exclusive possession of any part of it.

Under the circumstances, Mrs. Shelby filed, in due form, the declaration of the homestead in question. After she filed it, and while she was residing with her family on the