to the petition here involved, and such reference being the only mark of identification found in the bond, we must assume that the bond was intended to accompany some other petition. We think it wholly void as a bond to support the petition in this case, and in no degree assisted the board of supervisors in securing jurisdiction of the proceeding.

3. Again, as a bond supporting any petition for a private road it was fatally defective. There was no condition in the bond as provided in section 2692 of the Political Code, viz: "The bondsmen will pay to the person over whose land said road is sought to be opened his necessary costs and disbursements in contesting the opening of such road, in case the petition be not granted and the road finally not opened." The foregoing is a necessary and essential condition of every bond accompanying a petition for the laying out of a private road. At a very late stage in the progress of the proceedings the defect in the bond in this regard was attempted to be cured by filing an amended bond. We think nothing was gained by such a course. If a valid bond was necessary to give the board jurisdiction to act at all, we do not see how an amended bond could validate previous acts of the board done without jurisdiction. We do not see how a fatally defective bond could be cured by an amendment at this stage of the proceedings any more than a fatally defective petition could be cured at that time.

For the foregoing reasons we think the proceedings of the board in laying out this road were had without jurisdiction, and therefore void.

The judgment is reversed and the cause remanded.

VAN FLEET, J., and HARRISON, J., concurred.

[No. 19477. Department One.-June 27, 1895.] CHARLES H. HENRY, RESPONDENT, v. H. M. BARTON ET AL., APPELLANTS.

MUNICIPAL ORDINANCE-LIQUOR LICENSE-DUTY OF CITY TRUSTEES— ABSENCE OF DISCRETION-MANDAMUS.-Where the ordinance of a city entitles every man who complies with its provisions to a retail liquor license, upon written application to the trustees, and the giving of a bond conditioned to keep a quiet and orderly house, one who complies with such provisions is entitled to the license, and the trustees have no discretion to say that the license shall not be granted, and they will be compelled by mandamus to issue a license to the applicant.

APPEAL from a judgment of the Superior Court of San Bernardino County.

The facts are stated in the opinion of the court.

Rolfe & Rolfe, for Appellants.

E. E. Rowell, for Respondent.

GAROUTTE, J.-Respondent in the trial court secured a judgment of mandate against Barton and others, trustees of the city of San Bernardino, requiring them, as such trustees, to issue to him a retail liquor license. This is an appeal prosecuted from such judgment. It is provided by ordinance of that city that "for every saloon, bar, or place where spirituous, vinous, etc., liquors are sold or given away in less quantities than one quart, a license tax of fifty dollars a month is imposed." It is further provided that any person desirous of engaging in such business must make written application to the board of trustees for a license therefor, and such application must be accompanied with a bond with two sureties in the sum of two thousand dollars, conditioned that the applicant shall keep a quiet and orderly house, etc. The application contemplated by the ordinance was made, accompanied by a good and sufficient bond. This is conceded by the trustees, but they denied the application, upon the ground "that in the exercise of their best judgment and discretion in

said matter, and under and in pursuance of an honest belief on the part of the members of said board that the welfare and good order of said city and the inhabitants thereof required that the granting of such license be refused." No evidence was taken in the case, and consequently we know nothing of the specific facts or grounds upon which this action of the trustees was based; but, as we look at the case, the grounds, whatever they may have been, are wholly immaterial.

This action of the trustees cannot be successfully maintained. The ordinances of the city of San Bernardino, as they now stand, entitle every man who complies with their provisions to a retail liquor license, and this respondent complied with these provisions. Trustees of cities have no power except that given them by express provision of law, and we find no power in any of these ordinances vesting in them discretion as to the granting or denying an application for a liquor license. In the absence of some express legislative enactment granting such right there is no principle of law that will allow the trustees of any city to say that a liquor license shall be granted to A and the same right denied to B.

For the foregoing reasons the judgment is affirmed.

VAN FLEET, J., and HARRISON, J., concurred.

[L. A. No. 35. In Bank.-June 27, 1895.]

T. K. STATELER, PETITIONER, v. SUPERIOR COURT OF ALAMEDA COUNTY, RESPONDENT.

INSOLVENCY-APPEAL BY CREDITOR FROM ADJUDICATION-STAY OF PROCEEDINGS-JURISDICTION-MODIFICATION OF ORDER-EXECUTION AGAINST HOMESTEAD.-An appeal by a creditor from an order of adjudication upon a voluntary petition in insolvency stays all further proceedings in the court below upon the judgment or order appealed from, or upon matters embraced therein, and the superior court has no jurisdiction pending the appeal to make an order modifying the order of adjudication so as to allow a judgment creditor to issue exe cution against the homestead of the insolvent debtor.

ID.-MODIFICATION OF STAY PROCEEDINGS-CERTIORARI.-The decree adjudging the petitioner insolvent and ordering a stay of proceedings constitutes one order, and, where the appeal is from the whole of the adjudication, the court has no authority to modify the order staying proceedings pending the appeal, and such order will be annulled upon certiorari.

ID.-FRAUDULENT TRANSFER OF HOMESTEAD REMEDY BY ACTION.Where an insolvent has, prior to filing his petition in insolvency, made a fraudulent transfer of his interest in the homestead property, for the purpose of covering it up and preventing any excess in value from coming to his creditors, a judgment creditor may bring an action on behalf of himself and the other creditors, to set aside such transfer and recover the property for the benefit of the estate, and such action will not contravene the order staying proceedings, but, where the stay ordered is suspended by appeal, no question can arise as to the right to maintain such an action.

APPLICATION in the Supreme Court to annul an order of the Superior Court of Alameda County.

The facts are stated in the opinion of the court.

Pierson & Mitchell, and Robert A. Friedrich, for Petitioner.

The court had no jurisdiction to make the order sought to be reviewed. (Insolvent Act 1880, sec. 45; Dennery v. Superior Court, 84 Cal. 8; Estate of Woods, 94 Cal. 566; Pennie v. Superior Court, 89 Cal 31.) An order appealed from cannot be modified or affected by the lower court pending the appeal. (Ruggles v. Superior Court, 103 Cal. 125.)

A. W. Thompson, for Respondent.

The appeal did not include the order staying proceedings, and the court could modify it so as to allow the assignee to take the homestead as to excess in value over five thousand dollars. (Dennery v. Superior Court, 84 Cal. 8; Lubbock v. McMann, 82 Cal. 229, 230; 16 Am. St. Rep. 108; Barrett v. Sims, 59 Cal. 615; Demartin v. Demartin, 85 Cal. 71; Keyes v. Cyrus, 100 Cal. 322; 38 Am. St. Rep. 296.)

VAN FLEET, J.-This is an original proceeding in this court by certiorari, seeking to review and have

annulled an order of said superior court made in a proceeding in insolvency.

In December, 1894, R. P. Thomas, a resident of Alameda county, filed in said superior court his voluntary petition in insolvency, and thereupon the usual order was made, as provided in the Insolvent Act, adjudging Thomas insolvent and staying all proceedings against him. Subsequently one Chetwood, creditor, was elected and duly qualified as assignee of the estate. Thereafter the petitioner herein, a creditor whose claim had been filed against said estate, took and perfected an appeal to this court from said order of adjudication, and said appeal is still pending here.

On March 30th, and after the perfecting of said appeal, Chetwood, whose claim is based upon a judgment theretofore recovered by him against said insolvent in the superior court of the city and county of San Francisco, but under which no execution had been levied or lien acquired in any manner upon any property of the insolvent in Alameda county, made an application to said superior court for a modification of the order of adjudication to the extent of permitting him, as such judgment creditor and assignee, to take out execution upon his said judgment and levy it upon certain real estate constituting the homestead of the insolvent in Alameda county, which it was alleged largely exceeded in value the statutory exemption, and to subject such excess is value to the satisfaction of said judgment. The superior court granted said application and made an order modifying said order of adjudication in the manner requested, and said Chetwood thereupon took out execution and is proceeding to subject said property to the satisfaction of his said judgment. The said order of modification was made without notice to or consent of the petitioner, and petitioner deeming that said court had no power to make the order, and there being no appeal therefrom, he seeks the aid of this proceeding to have the order annulled.

We think it clear that the court was without authority