[1] Mandamus—Performance of Duty by Public Officer—Demand.—Where demand must be made in order to impose a duty upon a public officer, mandamus to compel the performance of the duty will not lie unless there has been a proper demand.

[2] Municipal Corporations—San Francisco—Payment of Claims— Demand—Charter.—Under the charter of the city and county of San Francisco, it is essential, before the payment of any claim against the city and county can be made from the treasury, that a demand upon the claim should receive the check and approval of the auditor.

[3] Mandamus—Payment of Judgment Against City and County of San Francisco—Pleading—Demand.—In a proceeding for a writ of mandamus to compel the payment of a judgment against the city and county of San Francisco after the collection of the money by a tax levy under the act of 1901 (Stats. 1901, p. 794), it is essential that the petition allege a demand upon the auditor for the issuance of a warrant and a refusal thereof, although a demand for the taking of the steps necessary to collect the money had been timely made.

[4] Id.—Refusal to Pat Judgment—Insufficient Allegation of Demand.—In such a proceeding, the general ■ allegation that the respondents refuse to pay the judgment is too vague to support an implication of a demand upon the auditor for the issuance of a warrant.

[5] Municipal Corporations—Tax Lett for Patment of Judgment—Entire Amount—Right of Judgment Creditor.—Under the act of 1901 regulating the payment of judgments against counties and municipalities, the hoard of supervisors in levying a tax to pay a judgment is free to exercise the option of raising a sum sufficient to pay the whole of the judgment, or of raising an amount equal to at least one-tenth thereof, but in the event that the whole amount is collected, the judgment creditor has the right upon proper demand to receive such amount in one payment.

[6] Mandamus — Patment of Judgment — Demand — Pleading — Insufficient Excuse.—In a.< proceeding for a writ of mandamus to compel the payment of the whole amount of a judgment obtained against a municipality, an allegation of demand for the payment of the judgment is not excused on the ground that demand would have been an empty and unavailing formality because of a resolution of the board of supervisors directing the payment of but one-tenth of the amount out of the whole amount collected under a tax levy, where such resolution was not set forth in the petition for the writ, but in an answer, which was filed at the same time as a general demurrer attacking the sufficiency of the petition.

[7] Pleading—Defects in Complaint—Contemporaneous Demurrer and Answer.—When considering the sufficiency of' a pleading attacked by demurrer, defects in the pleading attacked cannot be held to he cured by allegations in an answer filed at the same time as the demurrer, for the answer is before the court only in the event that the pleading withstands the test of the demurrer.