1. The fact that a magistrate answered a writ of certiorari amounts to a waiver of the service of the writ and petition upon him as required by section 4643 of the Civil Code.
2. Sustaining a cértiorari for the first time, upon questions of fact, and sending the case back for a new hearing in the magistrate’s court, is equivalent to the first grant of a new trial, which will not be disturbed by this court, unless the plaintiff in error shows that the judge abused his discretion, and that the law and the facts required the verdict notwithstanding the judgment of the presiding judge.
3. Where statements of fact in a bill of exceptions are qualified by an interlineation therein, made by the judge, to the effect that these statements are mere contentions of counsel and “are only certified as such,” this court can not deal with the matters thus brought to its attention. It is essential to this end that such statements should be verified as setting forth the truth of what actually occurred.
Judgment on main bill of exceptions affirmed; cross-bill of exceptions dismissed.