penalty or forfeiture, and must be paid as above for the use of the county.

It may be granted that the two per cent is a penalty for non-payment of delinquent taxes. It may be granted also to be a forfeiture, but only in the sense of a penalty. The two words seem to mean the same thing, when said of money, in which sense it imports a requirement to pay the sum mentioned as a mulct for a default or wrong. (See Abbott's Law Dictionary, word Forfeit, and cases there cited.) When used in the section above quoted of a payment of a sum of money, it is diffi cult to distinguish the one from the other. We think they mean here the same.

If it be conceded, then, that the payment of interest above mentioned is a penalty or forfeiture, the two words being used in the sense stated above, does it follow that the payment is required to be made for the use of the county?

The tax collector of the city and county, as well as of each county, collects both the state and county taxes of the character involved herein.

The unpaid taxes become delinquent on the last Monday in December, at 6 o'clock P. M., and unless paid prior thereto five per cent must be added to the amount thereof, and this five per cent must thereafter be collected by the collector for the use of the county. (Pol. Code, sec. 3756.)

The tax collector must afterward, on a day mentioned in the statute, publish the delinquent list. (Pol. Code, sec. 3764.) The expense of this publication is a charge against the county. (Same section.) The tax collector must also append and publish with this list a notice that unless the delinquent taxes, together with the costs and percentage, are paid, the real property upon. which such taxes are a lien will be sold at public auction. (Pol. Code, sec. 3765.) These taxes become a lien on such property on the first Monday in March of each year. (Pol. Code, secs. 3717, 3718.)

If these taxes are not paid or collected by sale of the property of the delinquent by the third Monday of March following the notice of sale, interest on them must be collected at the rate of two per cent per month from the time of the delinquency in December until paid.

This interest is not to be charged on the delinquency in December unless the taxes remain unpaid on the third Monday in March following. This was so held in Harper v. Rowe, 53 Cal. 233, where it was said of this section that it "has no application to a sale made by a tax collector to collect a delinquent tax in the first instance. If the tax remains finally delinquent after the tax collector has exhausted all means for its collection, it may possibly be subsequently collected in some other method provided by law, in which event the interest is to be added to compensate for the long delay, and as an incentive to the tax-payer to make a voluntary payment, and thus stop the interest." Harper v. Rowe has been followed by this court in Lake County v. Sulphur Bank etc. Co., 66 Cal. 17; 68 Cal. 14; People v. North Pacific etc. R. R. Co., 68 Cal. 553.

It will be observed that in the foregoing sections which lead up to the collection of the two per cent per month interest on delinquent taxes under section 3803, requiring it to be collected, nothing is said definitely for whom it is to be collected. The five per cent to be added on the delinquency in December is required to be collected for the use of the county. This is distinctly and clearly provided for in section 3756.

Conceding, then, as above pointed out, that such interest is required to be paid by the delinquent as a penalty or forfeiture, it must be determined to whom such money goes when paid under section 3886 of the Political Code, above quoted, and by that section let it be noted that it must be paid "into the treasury for the use of the county where the person against whom the recovery is had resides."

We

It is material to be determined what is the meaning of the word "recovery" in the above section. Does it signify a collection without suit, or a payment compelled by action? In its general use it means a recovery had by process and course of law. It was so held in Jones v. Walker, 2 Paine, 688. In a special case it may mean collected or obtained without a suit. It was so held in Douglass v. Reynolds, 7 Pet. 113, 126. think the word is here used in its general sense, which is its ordinary and popular meaning, and when there is nothing in the statute to indicate that it is used in a peculiar sense, we must attribute to it its ordinary and popular signification. This is the rule to be adopted in the construction of a statute or any writing. (Code Civ. Proc., sec. 1861.) We find nothing in the title establishing the revenue system of the state which indicates that this word is used in any other than its ordinary and popular meaning. On the contrary, we find much to indicate that it is so used. The words "collect" and "collection" are used in the title, but nowhere signifying recovery by action or judicial process, except where such meaning is manifested by the context. Unless so manifested, the word "collect" and its cognates or derivatives are clearly used to signify the obtainment of the money without suit. (See Pol. Code, c. 7, tit. 9.)

Further, there are penalties or forfeitures (using the word "forfeiture" in the sense set forth above) prescribed in the title, which are to be recovered by action. (Pol. Code, secs. 3656, 3697, 3737.) There are other penalties or forfeitures which require no action to be brought. They are directed to be withheld or deducted by an officer of state designated, viz., the controller. (Secs. 3867, 3870). The amount withheld under section 3867 "to be paid into the treasury for the use and benefit of the state."

The above considerations lead to and fortify the conclusion that the penalties and forfeitures spoken of in

section 3886 refer only to those to be recovered by action under the statute, and not to the interest of two per cent per month on delinquent taxes which is obtained by the ordinary method of collection without a suit.

And as this interest is not required by the statute to be collected for the use of the county, or city and county, it is reasonable to hold that that portion of the interest accrued and collected on the state tax should be paid to the state and go into its treasury.

In regard to the argument that delinquent taxes do not bear interest as a debt, we cannot see much force in it, for certainly it is within the power of the legislature to enact that they shall bear interest in the same manner as a debt, regulate the rate, and require such interest on the state's portion of delinquent taxes to be paid to the state and go into its treasury; and this is true under the statute, conceding that such interest may be regarded as a penalty or forfeiture.

We have examined the other points made by appellants, which refer to the sufficiency of the complaint, and we are of the opinion that as there was no demurrer, either general or special, to the complaint, and no objection made to it in the court below, we ought not to reverse the judgment. The cause appears to have been tried as if the complaint was in all respects sufficient. On an examination of the record we find no error or defect in the pleadings or proceedings which affects the substantial rights of the parties, and in such a case the judgment should not be reversed. (Code Civ. Proc., sec. 475.)

It is doubtful whether the express or distinct demand upon the defendant to perform the acts required prior to the application for the writ of mandate is necessary in this case, which relates to the performance of a public duty, and in which the relator has no private interest, and claims no benefit of the acts to be done. (See Oroville & V. R. R. Co. v. Plumas County, 37 Cal. 362, 363.)

But we think it was substantially averred to have been made by the general words "often requested and refused" to be done, and the bill of exceptions refers to the demand as having been made.

Both of the judgments appealed from must be affirmed. So ordered.

MCFARLAND, J., and SHARPSTEIN, J., concurred.

[No. 20410. In Bank.-May 25, 1888.]

THE PEOPLE, RESPONDENT, v. GEORGE W. COX, APPELLANT.

CRIMINAL LAW-ORAL INSTRUCTION.-Although an oral charge in a criminal case, which is not taken down by the phonographic reporter, as required by section 1093 of the Penal Code, is ground for the reversal of a judgment of conviction, or of an order denying a new trial, if the character or effect of the oral instruction does not appear; yet, where the record shows that the language used, which was not taken down by the reporter, merely led up to an instruction which was properly taken down, and did not affect nor in any way qualify the charge which was taken down, it is not ground for reversal. ID.-BILL OF EXCEPTIONS-NOTES OF REPORTER.-The notes of the short

hand reporter, and his transcription of them, are but prima facie evidence of the charge of the court; and the judge in settling the bill of exceptions should insert what he actually said to the jury, as a substitute for what the reporter erroneously stated was said. The settled and certified bill of exceptions imports absolute verity if the settlement is not attacked as provided by statute. If the judge should refuse to insert what was actually said, the remedy is to apply to the supreme court for leave to prove an exception which the judge below refused to settle according to the facts, as provided by section 1174 of the Penal Code. But such a refusal can never be assumed. ID. HOMICIDE-EXHIBITION OF WEAPONS.-The exhibition of a bowieknife, pistol, and coat of mail, which are brought into court by the sheriff, and laid upon the table in sight of the jury by the district attorney, but not offered in evidence, upon the trial of a defendant accused of murder, is not a sufficient reason for reversing the judgment of conviction, if no objection is taken at the time to the action of the sheriff or district attorney, and the court is not requested to rule or charge with reference to the articles, but instructs the jury that they are to be governed alone by the evidence admitted