tion shows clearly that such was his intention and contract, and we think that the application and the certificate may be read together for the purpose of showing that the clause in the certificate is an express condition precedent to the payment of the insurance.

"In all contracts of insurance, certain statements are made, certain stipulations are entered into, and certain provisos, conditions, and by-laws are introduced or referred to in a more or less explicit manner. As a general rule, if these statements, stipulations, etc., are contained in or expressly made a part of the policy, they become warranties, and are so denominated in the law of insurance. By a warranty the insured stipulates for the absolute truth of the statement made, and of the strict compliance with some promised line of conduct upon penalty of forfeiture of his right to recover in case of loss, should the statement prove untrue or the course of conduct promised be unfulfilled. The warranty is an agreement in the nature of a condition precedent, and like that must be strictly complied with. . . . . Any statement or stipulation upon the literal truth or fulfillment of which depends the validity of the contract, whether appearing as a condition or warranted, or modified otherwise, amounts to a warranty." (May on Insurance, pp. 160, 161.) The same principles apply to all kinds of insurance.

We do not think that suspension or expulsion by the order was necessary to forfeit the policy. In Knights of Honor v. Johnson, 78 Ind. 111, the certificate contained this clause: "Providing he be in good standing when he dies." It was held simply in that case that it was not shown that the member was not in good standing when he died. We see nothing in Bidwell v. Connecticut M. L. Ins. Co., 3 Saw. 261, which holds that, unless the certificate refers to the written application therefor, the application forms no part of the contract As we construe

the clause in the certificate, it is in substance and effect the same as the clause in the application which we have referred to, and was so intended by all parties.

It is said that the defendant can always refuse to pay the certificates on the ground that the second part of the obligation, namely, "to do all things in his power to promote the cause of temperance," has not been kept. It would be very difficult indeed for the beneficiary to prove how much was in the power of the deceased in the way of promoting the temperance cause, and the failure on behalf of the insured to prevent another from taking a drink might be claimed by the defendant as a forfeiture, etc. It is sufficient to say here that Hogins agreed, among other things, not to drink alcoholic liquors, and that he willfully broke the condition in violating the fundamental and controlling principle of his obligation and of the order. Judgment affirmed.

SEARLS, C. J., and MCKINSTRY, J., concurred.

[No. 11136. Department One.-May 10, 1888.]

S. M. SWINNERTON, APPELLANT, V. MONTEREY v.

COUNTY, RESPONDENT.

COUNTY-EMPLOYMENT OF ATTORNEY-DISCHARGE CONTINGENT COMPENSATION. An attorney at law employed by a county to prosecute an action against a county official for the purpose of recovering money claimed to be illegally retained, under an agreement whereby his compensation is made contingent upon the result of the litigation, upon being discharged before the termination of the action, is not entitled to recover any damages for the breach of the contract of employment, when it appears that the action in which he was retained ought not to have terminated in favor of the county, if it had been prosecuted to final judgment. MONTEREY COUNTY-COMPENSATION OF TAX COLLECTOR.-The act of March 1, 1872, provided that the tax collector of Monterey County should receive a certain percentage on the collections made for state and county taxes, as compensation for his services. The act of March 16, 1872, provided that the sheriff of the county, for such services, should receive a higher percentage. The latter act repealed LXXVI. CAL.-8

all acts in conflict therewith. At the time of the passage of these acts the sheriff was ex officio the tax collector. Subsequently the offices were made separate. Held, that after the separation of the offices, the tax collector was entitled to receive the percentage provided in the act of March 16, 1872.

APPEAL from a judgment of the Superior Court of Monterey County.

The action was brought to recover damages for the breach of a contract whereby the plaintiff was employed, as an attorney at law, to prosecute certain actions. facts are stated in the opinion of the court.

The further

S. M. Swinnerton, and S. L. Cutter, for Appellant. R. M. F. Soto, and Herrmann & Soto, for Respondent.

MCKINSTRY, J.-W. V. McGarvey was tax collector of Monterey County for two years from the first Monday in March, 1878, and U. Hartnell held the same office from the first Monday of March, 1880, to the first Monday of January, 1883.

The plaintiff herein, an attorney at law, claims to have entered into a contract with the defendant whereby he was employed to collect commissions unlawfully retained by the tax collectors of the county, the county agreeing to pay him for such service thirty per cent of the amount he should recover and collect; that under such employment he commenced actions against tax collectors McGarvey and Hartnell, and their respective bondsmen, to recover commissions illegally retained by them; but that, after the commencement of said actions, the board of supervisors (by order in regular form) directed the district attorney to dismiss the actions, which was done, and that the county thereby prevented him from earning the thirty per cent he would have recovered had he been permitted to prosecute the suits.

Passing all other questions, the plaintiff ought not to recover in this action if he could have recovered nothing

for the county, in case he had prosecuted to judgment the actions against McGarvey and Hartnell. He could have recovered nothing unless the commissions sued for were illegally retained or paid to the tax collectors named.

There is no dispute here as to the amounts retained by the two tax collectors. And it must be conceded that if the act of March 16, 1872 (Stats. 1871-72, p. 419), fixed the compensation of the tax collector when McGarvey and Hartnell were in office, each of them was entitled to retain or to receive the sum by each retained.

The act of March 1, 1872 (Stats. 1871-72, p. 178), provided that the tax collector of Monterey should receive for collections of state and county taxes four per cent on the first ten thousand dollars, two per cent on all amounts over ten thousand dollars and less than twenty thousand dollars, and one and one half per cent on all moneys over twenty thousand dollars. By the act of March 16, 1872, it was enacted that the sheriff of Monterey should receive six per cent on the first ten thousand dollars collected for state and county taxes, four per cent on all over ten thousand dollars and less than twenty thousand dollars, and two per cent on any amounts more than twenty thousand dollars. The last act repealed all acts in conflict therewith.

When the acts mentioned were passed, the sheriff of Monterey County was ex officio the tax collector. Subsequently, and before the incumbency of McGarvey or Hartnell, the offices were made separate.

It was urged by appellant that the percentages to be received by McGarvey and Hartnell, as tax collectors, were determined by the act of March 1, 1872.

The contention is based on the proposition that in the act of March 16, 1872, the "sheriff" is named as the recipient of the percentages. But the sheriff was the tax collector. The offices of sheriff and tax collector, though held by the same person, were separate and distinct offices. (People v.

Ross, 38 Cal. 76; People v. Kelsey, 34 Cal. 470; Lathrop v. Brittain, 30 Cal. 680.) The act of March 16th fixed the percentages to be allowed the tax collector for collecting the taxes,-fixed them no less because it called the tax collector "sheriff." The title of an act does not control the plain meaning of the body of the act, a statute must be construed with reference to the objects to be accomplished by it. A thing clearly within the intention of a statute is within the statute. (Pierpont v. Crouch, 10 Cal. 315; Emery v. Reed, 65 Cal. 351; Burr v. Dana, 22 Cal. 20; Kinsey v. Kellogg, 65 Cal. 114, 115.) Judgment affirmed.

PATERSON, J., and TEMPLE, J., concurred.

[No. 9886. Department Two.-May 10, 1888.]

C. G. HOOKER, RESPONDENT, v. PINCUS BANNER ET AL., APPELLANTS.

LESSOR AND LESSEE SUCCESSIVE LEASES-COVENANT BY LESSEE TO RESTORE ALTERATIONS.-A lessee of a building during the term made certain alterations in the building, with the consent of the lessor. Prior to the expiration of the term, the parties entered into a new lease, to take effect upon the expiration of the former. This lease contained a provision to the effect that any alterations or changes made in the property by the lessees should be replaced, and the property left in its original condition. At the expiration of the second lease, the parties entered into a third, which contained a similar provision. Held, that upon the expiration of the third lease the lessee was obliged to restore the premises to the original condition in which they were while holding under the first lease.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The facts are stated in the opinion of the court.