mitted. There is, as seen, no charge of malice or corrupt motives in the act of the defendant in issuing the warrant. Obviously, an attempt-a very crude attempt, it is true-was made to charge the crime of common barratry, and it will be admitted that some facts were stated in the complaint which, co-operating with other conceivable facts not stated, would constitute the crime which it was attempted to charge. As above stated, in passing upon the question of the sufficiency of the complaint to state the offense named therein, the defendant was only exercising the powers with which he was invested as a judicial officer, and, although to a trained lawyer the insufficiency of the facts stated in the complaint to state the offense thus sought to be charged would readily appear, still we must assume, in the absence of a showing of malice or other bad motives in the act of the defendant in issuing the warrant, that in so doing he acted in good faith and in the honest belief that the document upon which he issued the warrant was sufficient in law as a complaint to justify that act. And it may with no impropriety be added that, while there is no legal presumption that the average person selected to fill the office and discharge the duties of a justice of the peace is not a lawyer, still, as a matter of very common knowledge, we know that, generally speaking, laymen, without any previous education in the law and who are not conversant with the technical rules of procedure whereby justice is required to be administered, are called to fill judicial positions of inferior and limited jurisdiction, and, therefore, it is not to be taken as a matter of astonishment that the law, substantive as well as procedural or adjective, is often administered in the inferior tribunals in a very primitive and irregular manner. Hence, it may readily be apprehended that it might and perhaps would prove to be destructive of an efficient branch of our judicial system, as it now exists, if it were found necessary to promulgate a rule whereby a justice of the peace may be subjected to a civil suit for damages for a mere error of judgment in the doing of some act or the issuance of some process which is within the general scope of his judicial powers, such act not having been prompted by an evil motive, but done in perfect good faith and in an honest belief that he was legally warranted in doing it. Indeed, it is very doubtful whether a lawyer, much less a layman, would be willing to accept the office of justice of the peace if it were true, as a legal proposition, that he would be required to discharge his judicial duties or examine every legal document or proceeding filed or brought before him at the peril of an action for damages in case he, through error of judgment, did some act which, though within his general jurisdiction, was not authorized in the particular case in hand. Of course, in all such cases, someone may suffer injury, of a more or less aggravated nature, from the illegal act of the justice; but this result is only one of a number of inconveniences which are necessarily incident to a system, the product of the imperfect human mind, which has not attained, and, in the very nature of things, cannot attain to that degree of perfection which admits of no mistakes and the inconveniences or injuries following therefrom. But we may repeat, as the cases above mentioned with gratifying perspicacity explain, that, upon the soundest principles of public policy, injuries resulting from errors so committed are without a legal or any remedy, a situation necessary to the preservation, in all its essential features, of the very system itself established for the administration of the law. For the reasons herein given, the judgment is affirmed. Chipman, P. J., and Burnett, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 7, 1918. [Civ. No. 1691. Third Appellate District.-November 10, 1917.] WILLIAM CAULFIELD et al., Respondents, v. W. GUGLIELMETTI, Copartners, etc., et al., Appellants. RESCISSION OF CONTRACT-ACTION FOR BALANCE DUE-PLEADING FINDING LACK OF VARIANCE.-In an action for the recovery of the balance due under an agreement for the rescission of a contract of sale of personal property, where the complaint set up an express contract of surrender, release, and rescission based upon a money consideration, and the answer denied the same, the finding that the sum due was less than alleged in the complaint is not a departure from the cause of action stated in the complaint. ID. FINDINGS ON MATERIAL ISSUES-DUTY OF COURT.-It is the duty of the court to make findings on all the material issues raised in a case and upon which testimony is given, regardless of how or by whom the issues are introduced. APPEAL from a judgment of the Superior Court of Sonoma County. Thomas C. Denny, Judge. The facts are stated in the opinion of the court. W. H. Early, and A. H. Crook, for Appellant. Gil P. Hall, and E. J. Dole, for Respondents. HART, J.-The first four paragraphs of the complaint in the action are also alleged, in practically the same language, in the cross-complaint of defendants. They are: (1) That defendants are copartners, doing business as dairymen in the county of Sonoma, under the firm name and style of W. & R. Guglielmetti. (2) "That, on the fourteenth day of September, 1914, defendants and William Caulfield, for the benefit of himself and Thomas Caulfield, made their agreement in writing, in the words and figures as follows, to wit: "Petaluma, Cal., Sept. 14/14. "We agree to sell to Will Caulfield 71 cows, 18 heifers, 40 calves, for the sum of $6,300.00, and reserve the right to pick out any of the above stock, and either replace them with other as good cows or whatever they may be or pay cows that are short of the above number $59.14 each, heifers, $50.00 each and calves $30.00 each. 666 '(Signed) "WM. CAULFIELD, "W. and R. GUGLIELMETTI. (3) That at the time of the execution of the above agreement said William Caulfield, on behalf of himself and the said Thomas Caulfield, "and in pursuance to the provisions of said agreement, paid defendants the sum of one thousand dollars." (4) That the said Thomas Caulfield then and there became and ever since has been and is now the owner of an undivided one-half interest in and to said agreement (in the cross-complaint, "and the personalty therein described"), "and all rights accruing therefrom, and in and to all claims mentioned in this complaint" (in the crosscomplaint, "in and to all claims arising thereon"). Paragraph 5 of the complaint reads: "That on or about October 1st, 1914, defendants agreed to pay to plaintiffs the sum of $20.00 in lawful money and to return to plaintiffs all sums theretofore paid on account of said agreement, by plaintiffs, provided plaintiffs would surrender, release and rescind said agreement; and said plaintiffs accepted said promise on the part of defendants as aforesaid, and pursuant thereto and in consideration thereof, did surrender, release and rescind said agreement, and thereafter defendants paid to plaintiffs the said sum of $20.00 and $580.00 and no more, and there now remains due and unpaid from defendants, the sum of $420.00, no part of which has ever been paid, although demand therefor has been made." In the answer the allegations of said paragraph 5 are denied, and it is alleged that, on September 30, 1914, defendants were ready and willing to perform said contract and tendered to plaintiffs said stock in pursuance of the terms of said contract; that plaintiffs unqualifiedly refused to accept said stock "and did offer to said defendants the sum of twenty dollars to rescind and cancel and annul said agreement," which was refused by defendants; "that pursuant to the terms of said agreement said plaintiffs were obligated to pay to said defendants for and on account of said stock, the sum of six thousand three hundred dollars, and by reason of the said refusal of said plaintiffs to comply with the terms of said agreement, said defendants, in order to mitigate the damages they had sustained by reason thereof, were compelled to and did, after having notified said plaintiffs of their intention to so do, sell said stock for the sum of five thousand nine hundred dollars," the highest price they could receive; that defendants paid to plaintiffs six hundred dollars, the difference between six thousand three hundred dollars, which plaintiffs were obligated to pay, and five thousand nine hundred dollars, the sum defendants received. The cross-complaint alleges the tender and refusal to accept said stock, as above set forth, and proceeds: "That said plaintiffs did refuse to pay the balance of the purchase price due, and for the period of thirty days thereafter continued to refuse to comply with the provisions of said agreement; that by reason of said refusal, defendants were compelled to and did furnish and provide for, for thirty days, the feed, keep, pasturage and care of said stock," the reasonable value of which was alleged to be five hundred dollars. The allegations of the cross-complaint are denied by plaintiffs. The judgment was that plaintiffs do have and recover from defendants "the sum of four hundred dollars, the balance due on the purchase price of the stock mentioned in plaintiffs' complaint, together with interest on the sum of one thousand dollars, from October 1, 1914, to April 26, 1915, and interest on the sum of four hundred dollars from April 26, 1915," together with costs. The appeal is by the defendants from said judgment. Appellants specify alleged errors of the court in rulings upon the admission of evidence and in failing to determine certain issues. Insufficiency of the evidence to support the judgment in several designated particulars is also relied upon. The court found as follows: That the written agreement of September 14, 1914, was made and entered into by the parties; that on said date, and on said agreement, the plaintiffs paid to the defendants the sum of one thousand dollars; that, on October 1, 1914, the defendants agreed to return to the plaintiffs "all sums theretofore paid on account of said agreement by plaintiffs, provided plaintiffs would surrender, release and rescind said agreement," and that the plaintiffs thereupon accepted that proposition, and, pursuant to said agreement of rescission did surrender, release and rescind said agreement, and thereafter the defendants paid to the plaintiffs the sum of six hundred dollars and no more, "and there now remains due and unpaid from the defendants to plaintiffs the sum of four hundred dollars, no part of which has ever been paid," etc. No finding was made as to the bonus of twenty dollars which the complaint alleges the defendants agreed to pay the plaintiffs as a part of the consideration for the rescission; but the court did make findings upon the issues, above briefly recapitulated, made by the cross-complaint of the defendants. The appellants contend that the findings and conclusions of law are at variance with the issues raised by the pleadings and the essential theory of the case following the issues so made. In support of this position, counsel say: "The complaint set up an express contract of surrender, release, and rescission based upon a consideration of twenty dollars and the answer denies the same. The court finds that no such |