canceled, and set aside. In the evidence the contract was continually referred to as having been terminated and rescinded, and it is so pleaded in the complaint, admitted in the answer and found by the court. The effect of a rescission by the parties was to entitle the plaintiffs to recover from Horn the amounts paid by them on account of the contract. The rule is that where a contract has been abandoned or rescinded by the parties, the vendee, although in default, may recover back installments paid on the purchase price, less actual damages to the vendor occasioned by the vendee's breach of contract, although it was stipulated that such payments should be forfeited upon default. (Cleary v. Folger, 84 Cal. 316, [18 Am. St. Rep. 187, 24 Pac. 280]; Drew v. Pedlar, 87 Cal. 443, [22 Am. St. Rep. 257, 25 Pac. 749]; Phelps v. Brown, 95 Cal. 572, [30 Pac. 774]; Shively v. Semi-Tropic Co., 99 Cal. 259, [33 Pac. 848]; Heilig v. Parlin, 134 Cal. 99, [66 Pac. 186].) Besides this, we are of the opinion that Horn was in no position to claim the strict forfeiture provided for under the terms of his contract, for whatever default was suffered by the Burmesters thereunder was waived by the acts of Horn. It appears from the evidence that no one of the seven or eight monthly payments was ever made by the Burmesters in accordance with the terms of their contract. In one instance several months had elapsed between two of the payments, and the Burmesters were always in arrears as to part of the amount due from the very inception of their contract. Under such circumstances where, as here, time is of the essence of the contract, the vendor is deemed to have waived strict compliance with its terms as regards time of payment, and he cannot thereafter rescind or forfeit the contract without first notifying the vendee of his intention to require a strict compliance with the conditions of the agreement, and allowing him a reasonable time to make good the existing default. Where, says the supreme court of this state, time is made of the essence of the contract for the payment of money, and this covenant has been waived by the acceptance of payments after they are due, with knowledge of the facis, such conduct will be regarded as creating such a temporary suspension of the right of forfeiture as could only be restored by giving a definite and specific notice of an intention to enforce it. (Boone v. Templeman, 158 Cal. 290, [139 Am. St. Rep. 126, 110 Pac. 947]; Stevinson v. Joy, 164

Cal. 279, 285, [128 Pac. 751]; Pearson v. Brown, 27 Cal. App. 125, [148 Pac. 956].)

In the case at bar this notice was never given. The default of the Burmesters having been waived by the repeated acceptance of payments after their due date, no right existed in Horn to terminate their rights under the contract and to declare forfeited the payments already made; and when he undertook to terminate the contract by his notice of January 19th, the Burmesters were entitled to acquiesce in such action and to recover from Horn the amounts paid to him under the contract.

The judgment is reversed.

Lennon, P. J., and Richards, J., concurred.

[Civ. No. 1747. Third Appellate District.-December 12, 1917.] S. A. WOODY, Petitioner, v. HOWARD A. PEAIRS, Judge, etc., Respondent.

GRAND JURY-EMPLOYMENT OF ASSISTANTS-LACK OF AUTHORITY.-A grand jury or the superior court has no authority to designate, appoint, or require any person other than the public officers charged by law with the performance of such duties to search for testimony and subpoena witnesses to be used by and before the grand jury as to matters legally under investigation by that body, there being no express authority, and it not coming within the inherent powers of the superior court.

COUNTIES-PRESENTATION AND FILING OF CLAIMS.-Unless there is some provision of law expressly authorizing a different course of procedure, all claims or charges against a county must be presented and filed and approved and allowed as provided in sections 4075, 4076, 4091, 4173, and 4307 of the Political Code, in which cases only is the auditor required to interpose his official approval as a prerequisite to the payment thereof by the treasurer.

ID.-AUDITING OF CLAIM-MANDAMUS.-The superior court has no inherent power to make an order requiring a county auditor to audit a claim against the county for services of detectives employed by the grand jury to assist that body in the investigation of crime, the auditor not being an officer of the court or a party to the proceeding in which the order was made, the claimant's remedy being by writ of mandate.

APPLICATION for a Writ of Prohibition originally made to the Supreme Court to prevent a Superior Court from enforcing a judgment for contempt, and transferred to the District Court of Appeal for the Third Appellate District for hearing and decision.

The facts are stated in the opinion of the court.

E. F. Brittan, for Petitioner.

E. L. Foster, and Chas. A. Barnhart, for Respondent.

HART, J.-Petitioner applied to the supreme court for a writ of prohibition to prevent respondent from punishing petitioner for contempt of court, and the proceeding was duly transferred to this court for hearing and decision.

From the petition and from the return of respondent, the following facts appear: The petitioner, at all times mentioned, was the duly elected, qualified, and acting auditor of Kern County. On the third day of June, 1915, one J. J. Deuel petitioned the superior court of Kern County for an order allowing his two certain claims for services, one in the sum of $240 and the other in the sum of $925, "under and by virtue of section 4307 of the Political Code"; and said court was asked to make an order requiring the auditor to draw his warrants for said sums and a further order requiring the treasurer to pay the same. After a hearing in the matter of said petitions the court found the following facts: That, from January 2, 1915, to and including April 9, 1915, said J. J. Deuel "was employed by the grand jury of the county of Kern in securing evidence and witnesses in the various investigations being conducted by and before said grand jury"; that during said times said grand jury "was actually engaged in investigations into the conditions of affairs in the county of Kern, as provided by law"; that said grand jury "was engaged in an effort to close up all houses of prostitution and prevent their operation, and to prevent felonies, and was further engaged in an effort to stop the illicit sale of intoxicating liquors; and that during all of the time there was a large number of matters of this kind and character being investigated by the said grand jury, and that . . . it became and was necessary for the said grand jury to employ special detectives, for the reason that the sheriff of the county of Kern was unable to furnish sufficient officers who could assist

the grand jury in their investigations, and that the help and assistance provided by the district attorney of the county of Kern was inadequate, and that by reason of the facts above stated, the grand jury was unable to procure the attendance of witnesses, material and necessary to investigations then and there being made by the said grand jury, and that by reason of the inadequacy, incompetency, and lack of moral support from the sheriff and inadequate help from the district attorney and the board of supervisors, it became and was necessary to appoint special officers as aforesaid, to assist and aid the grand jury in the proper administration of its duties, under the instructions given by the presiding judge, when the said grand jury was impaneled; that the said grand jury duly and regularly employed J. J. Deuel as a special detective, and authorized him to secure witnesses and evidence in matters being investigated by and before said grand jury"; that said Deuel performed necessary and proper services for the county of Kern, "all of which services were in relation to criminal proceedings, for which no specific compensation is provided by law, and that a just and reasonable compensation for the services was, and is, the sum of ten dollars per day; that the nature and kind of services performed by the said Deuel was as follows: Subpoenaing and interviewing witnesses; securing information as to the character of various alleged houses of prostitution, and investigating the character and habits of the inmates thereof; investigating into the sale and disposition of liquors in cases of alleged violation of the law; and investigation of matters of criminal investigation, then being conducted by the said grand jury, and in relation thereto, subpoenaing of witnesses, and interviewing the same, and investigating the commission of felonies; that by reason of the said services, the county of Kern is indebted to J. J. Deuel in the sum of $925, which said sum is due, owing and unpaid"; that said claim has been approved by the foreman and secretary of said grand jury and said sum is a reasonable compensation for the services rendered. The order of the court was that the auditor draw his warrant for said sum of $925 in favor of said Deuel and that the treasurer pay said warrant upon presentation.

Contemporaneously with the filing of said petitions by said Deuel, one John Lang filed petitions alleging the same facts, the amount claimed by him being $523.65, which included an

item of $19.65 for traveling expenses, and similar findings and orders were made and entered as in the matter of the Deuel petition. Each of said orders was dated on the twenty-sixth day of June, 1915.

On the second day of July, 1915, a citation was issued to petitioner, Woody, requiring him to show cause, on the eighth day of July, why he had not complied with said orders above referred to. Upon said last-mentioned date, after hearing, the court adjudged said Woody guilty of a willful contempt of court in disobeying said orders and ordered that he be committed to the county jail of the county of Kern, "to be there imprisoned until he shall have obeyed said judgment, order, and decree of this court by drawing and issuing" warrants as directed.

Petitioner contends that the said superior court, respondent, was without jurisdiction to make said orders, the respective claims not being county charges, and that there is no provision of law authorizing the foreman and secretary of the grand jury or the superior court to appoint anyone to do special work for the grand jury as a detective.

We think the court exceeded its jurisdiction in adjudging petitioner guilty of contempt and that the adjudication must, therefore, be set aside as null and void.

In the first place, it is to be remarked that counsel for the respondent have not pointed to any law authorizing a grand jury or the superior court to designate or appoint or require any person other than the public officers charged by law with the performance of such duties to search for testimony and subpoena witnesses to be used by and before the grand jury as to matters legally under investigation by that body; and, unless there is some express authority for such a course either in the grand jury or the superior court, it is very doubtful whether such power may legally be exercised by either, for we do not believe that such authority comes within the inherent powers of the superior court.

The grand jury is clothed by law with certain specifically enumerated powers. (See secs. 915 and 928 of the Penal Code and sec. 4151 of the Political Code.) In none of said sections is there any provision that the grand jury may employ any person other than the public officers whose duty it is to perform that service to gather testimony or subpoena witnesses. On the contrary, section 1328 of the Penal Code