payments were made by checks sent from Arizona to the company here.

On cross-examination witness stated that he had charge of all the letters and orders of the company, and that everything was under his control. He further testified that all the goods were shipped direct from San Francisco by, order of defendant.

Plaintiff here rested, and defendant moved for a nonsuit, on the ground: 1. That there had been no assignment to him proven by the plaintiff in this action of the claim of the California Powder Works, alleged in the complaint; 2. That it had not been proven by the plaintiff that the goods sued on in the complaint were sold to the defendant at the city of San Francisco. The motion was denied, and the defendant excepted.

Defendant then moved for a continuance of the trial, on the ground that he had not had an opportunity to prepare for the trial, and was therefore unable to produce any testimony. The motion was denied, and the defendant excepted.

Defendant offered no testimony, whereupon the court rendered its decision, and ordered judgment for plaintiff and against defendant, as prayed in plaintiff's complaint. Defendant moved for a new trial, which was denied, and the appeal is from the judgment and the order denying the motion for a new trial.

In order to maintain his action, it was necessary for the plaintiff to allege an assignment to him by the California Powder Works of the claim sued on. And the denial of that allegation by the defendant cast the burden of proving it upon the plaintiff. This he attempted and failed to do. The secretary of the company, who executed the assignment on which plaintiff relies, is not shown to have had any power to make it. The ratification of the board of directors was not given until after the commencement of the action,-too late to avail the

LXXIX. CAL-6

plaintiff anything, as he could not recover for a cause of action accruing after he commenced his action.

We think the form of denial sufficient to raise an issue upon the allegation of the complaint as to the fact of assignment. It is a form authorized by the code, and we think this a case in which it might properly be employed. This, in our opinion, constitutes the only error disclosed by the record.

Judgment and order reversed.

MCFARLAND, J., and THORNTON, J., concurred.
Hearing in Bank denied.

[No. 12967.

Department Two.-April 29, 1889.] JOHN W. CARTER, ADMINISTRATOR ETC., APPELLANT, v. RUFUS C. HOPKINS ET AL., RESPONDENTS. NONSUIT-STATEMENT OF GROUNDS OF MOTION.-A statement of the grounds of a motion for a nonsuit, that the plaintiff had failed to prove a single allegation of his complaint, is sufficiently precise and definite to sustain an order granting a nonsuit. Such statement would be understood to signify that plaintiff had not proved a single material allegation of the complaint. RESULTING TRUST-EXTINGUISHMENT-STATUTE OF FRAUDS.-A resulting trust is extinguished by the conveyance by the trustee to the beneficiary of other lands upon purchase of his equitable estate; and the statute of frauds does not in such case require a conveyance by the beneficiary of his equitable interest to the holder of the legal title.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The action was brought to establish a resulting trust in a certain city lot in San Francisco, alleged to have been purchased by plaintiff's intestate, Thomas T. Bouldin, deceased, and conveyed to the defendant Rufus C. Hopkins, in trust. The defendant Hopkins answered, admitting the advance of purchase-money to him by the decedent for the purchase of the San Francisco lot, but

averring that the advance was for Hopkins's benefit, and further averring that in the decedent's lifetime he had sold all his equitable interest to the defendant Hopkins, and that the said defendant had paid the decedent for all advances upon a settlement by the conveyance to the decedent of the land in San Bernardino County. Plaintiff introduced evidence as to the granting of administration upon the estate of Bouldin, and as to the rental value of the San Francisco lot. The plaintiff's evidence as to the relations between Bouldin and Hopkins consisted of testimony that Hopkins had acted as Bouldin's general agent in his absence, and the declarations of Hopkins that there were various transactions between them, and that Thomas T. Bouldin purchased the San Francisco lot and put the title in his (Hopkins's) name when about to leave the state, and that he had afterward purchased all of Bouldin's interest in 1873, and had conveyed to him the San Bernardino property, for which the city lot was part consideration, and thereafter claimed that the San Francisco lot was his, and that he did not owe Bouldin anything, though he had no conveyance of Bouldin's equitable interest. A nonsuit was granted after the close of the plaintiff's evidence, upon motion of counsel for defendant Hopkins, who assigned as ground of the motion that plaintiff had not proved a single allegation of his complaint. The further facts are stated in the opinion of the court.

J. P. Langhorne, for Appellant.

Plaintiff had proved a resulting trust. (Civ. Code, sec. 853; Millard v. Hathaway, 27 Cal. 140; Hidden v. Jordan, 21 Cal. 92.)

Mhoon & Flournoy, and J. F. & William A. Stuart, for Respondents.

The nonsuit was proper for want of evidence to sustain plaintiff's case. (Gilman v. Bootz, 63 Cal. 120; Van

derford v. Foster, 65 Cal. 49; Harney v. McLeran, 66 Cal. 34; Whitney v. Purrington, 59 Cal. 36.)

The COURT.-The grounds on which the nonsuit was asked were sufficiently stated. They are equivalent to the statement that the plaintiff had failed to prove a single allegation of his complaint. The plaintiff's attorney, no doubt, understood what was meant by the statement made. by the attorney for the defendants, viz., that the plaintiff had not proved a single material allegation of the complaint. We cannot say that the nonsuit was erroneously granted, for the reason that the grounds on which it was asked were not stated with the precision and definiteness that the law required.

Conceding that a resulting trust was established as to the lot in the city and county of San Francisco, the court is of opinion that this trust was extinguished by the conveyance by Hopkins to Bouldin of the land in the county of San Bernardino, and that the statute of frauds does not require a conveyance by Bouldin to Hopkins of his equitable interest in the San Francisco lot.

Judgment affirmed.

[No. 11621. Department Two.-April 29, 1889.]

THE PEOPLE, RESPONDENT, v. T. C. VAN NESS ET AL., APPELLANTS.

OFFICIAL BOND-COMMISSIONER OF IMMIGRATION-EVIDENCE OF CONVERSION. When the commissioner of immigration, upon being required to render immediately to the controller a detailed statement of receipts, and to pay the same into the state treasury, replies that he had received no moneys belonging to the state, such reply is evidence of a conversion of all moneys of the state, which had theretofore come to his hands, as fast as received, and such conversion was a breach of his official bond, which was in force at the time of the receipt of the moneys.

ID. STATUTE OF LIMITATIONS.-The statute of limitations for breach of an official bond does not commence running until the expiration

of the official term, and the period thereafter required to effect a bar is four years. ID.—DELIVERY OF OFFICIAL BOND-APPROVAL.-An official bond, like every other deed, is not operative until a delivery, nor are the sureties liable thereon for any breach until after its delivery. There can be no delivery of an official bond until its approval by the proper authority. ID.-FEES ILLEGALLY COLLECTED BY COMMISSIONER OF IMMIGRATION— RIGHTS OF STATE.-Fees collected by the commissioner of immigra tion for administering oaths to masters of vessels, when making the reports required by section 2949 of the Political Code, were collected without authority of law, and the money thus, collected belonged to the shipmasters who paid it; but having been collected in the name and by the authority of the state, the state was the proper custodian of the moneys. The commissioner had no right to retain them, and having paid them to the state, cannot claim a credit therefor on a judgment for breach of his official bond.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Van Ness & Roche, for Appellants.

Attorney-General Johnson, and Langhorne & Miller, for Respondent.

THORNTON, J.-Action on the official bond of the defendant Van Ness, as commissioner of immigration of the port of San Francisco.

The bond on which this action was brought bears date on the 11th of January, 1876, on which day it was signed by Van Ness as principal, and Henry Barroilhet and Leland Stanford as sureties, was approved by the governor on the next day, and filed and recorded on the next day in the office of the secertary of state.

Van Ness held the office of commissioner of immigration from the seventh day of January, 1876, to the 21st of January, 1880.

During the incumbency of Van Ness, his official bond was by an act of the legislature, approved March 25,