lar; the verdict should in all cases be either declared by the foreman of the jury, or if sealed read by the clerk, so that the parties may be distinctly informed of its purport. No objection, however, was taken to the course pursued. The appellant would seem to have acted upon the supposition that either party had the right to claim a poll at any time before the jury was discharged. In this respect, as we have shown, he was mistaken. See Martin vs. Maverick, 1 McCord, 27; Ropps vs. Barker, 4 Pick. 238; also, Fellows' case, 5 Greenl. 333; Commonwealth vs. Roby, 12 Pick. 513; and State vs. Allen, 1 McCord, 525. There is nothing in the objection that the assent to the verdict was expressed by the foreman and not by the jurors themselves. The jurors, acting as a body, speak through their foreman. They declare by his voice their verdict, and their assent to the same as recorded. His assent is conclusive upon all, unless a disagreement to the record be expressed at the time. 20 Cal. 70-72.

CHAPTER XC.

TROVER AND CONVERSION.

SECTION 1. Trover is a remedy to recover the value of personal chattels wrongfully converted by another to his own use. 2 Cal. 572.

SEC. 2. The refusal to deliver goods on demand will not in all cases constitute a conversion, unless the party refusing have it in his power to deliver up the goods detained. 2 Cal. 572.

SEC. 3. A bailee is not liable in trover where the goods have been lost or stolen, for there is no actual conversion. Trover is a remedy to recover the value of personal chattels, wrongfully converted by another to his own use. 5 Cal. 572.

SEC. 4. Where one is intrusted by another with goods with power to sell the same as the agent or clerk of the owner, a mere intention on his part to appropriate the proceeds to his own use, does not amount to a conversion of the goods; but while his agency continues his sales in pur

suance of his authority are valid and bind the owner.

If

one is intrusted with goods by the owner with power to sell the same at retail for the owner as his agent or clerk, and if he then sells the goods in payment of his private debt to one who has full knowledge of the owner's title and the agent's relation to the goods, the purchase made with this knowledge amounts to a conversion of the goods by the purchaser. 25 Cal. 556.

SEC. 5. The action of trover might be brought when the plaintiff's goods had been converted, and conversion is always implied where one had secured goods in any manner and without right to detain them, refused to deliver them upon request. 2 Cal. 571; 4 Cal. 184; 8 Cal. 514; 10 Cal. 392.

CHAPTER XCI.

TRUSTS.

SECTION 1. The radical idea of a trust is confidence. Butler's Co. Litt. 249, lib. 3. A trust, then, in its simplest elements is a confidence reposed in one person who is termed the trustee, for the benefit of another who is termed cestui qui trust, and it is a confidence respecting property, which is thus held by the former for the benefit of the latter. Every grant or assignment of any existing trust in land, goods or things, in action, unless the same shall be in writing, subscribed by the person making the same or by his agent lawfully authorized, shall be void. Gen. Laws, 3165.

SEC. 2. If property, in its original state and form, is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it or those who represent him in right (not being bona fide purchasers for a valuable consideration without notice), any more valid claim in respect to it than they respectively had before such a change. An abuse of a trust can confer no rights on the party abusing it or on those who claim in privity with him. This principle is fully recognized at law in all cases where it is sus

ceptible of being brought out as a ground of action, or of defense, in a suit at law. It matters not in the slightest degree into whatever other form, different from the original, the change may have been made, whether it be that of promissory notes or of goods or of stock, for the product of a substitute for the original thing still follows the nature of the thing itself so long as it can be ascertained to be such. The right ceases only when the means of ascertainment fail, which, of course, is the case when the subjectmatter is turned into money and mixed and confounded in a general mass of property of the same description. 13 Cal. 140, 141.

SEC. 3. One who is a trustee or who stands in a situation of trust and confidence, cannot purchase or deal with the subject of the trust, neither can he purchase debts due to be paid out of the trust estate nor place himself in an attitude antagonistic to the trust. 6 Cal. 245.

WHAT IS JOINT AND SEVERAL... 5-6 INJUNCTION BONDS..

12-13

SECTION 1. Taking all of our statutes together, the obvious design was to put an undertaking on the same footing as a bond. 13 Cal. 608.

SEC. 2. If a party choose to execute a bond rather than pay money over to an officer which he could otherwise be compelled to do, it is a voluntary act upon his part and the bond is good as a common law bond. He is to be considered as a party who, for a personal accommodation, has assumed a legal responsibility, and after receiving its benefits on his part should be estopped from denying its legality. 7 Cal. 553, 554.

Consideration.

SEC. 3. A bond being under sale, imports a consideration, if there be nothing in its terms which negatives this conclusion. 17 Cal. 622.

SEC. 4. The mere fact of a receiver holding moneys in trust for parties, paying a portion as an advance to a party whom he believes or supposes will be entitled to it, is not such an illegal consideration as to vitiate a bond for its repayment. 12 Cal. 289.

What is Joint and Several.

SEC. 5. A bond running thus: "For which sums respectively, unto the said state of California in the manner and in the proportions hereinbefore set forth, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents," is a joint and several bond. 25 Cal. 521.

SEC. 6. The absence of the signature of the principal obligor to an official bond is not a defect which may be cured by its suggestion in a complaint under the eleventh section of the act concerning official bonds. 21 Cal. 585.

Liabilities of Sureties.

SEC. 7. The sureties on an undertaking cannot be held to do more than their principal was required to do. 7 Cal. 572.

SEC. 8. The defendant Dunlap was elected recorder of the city of Sacramento for one year from April 10th, 1857, and by an ordinance of the city was required before entering upon the discharge of his official duties to give a bond with two or more sureties for their faithful performance. The instrument upon which this suit was brought was filed and approved as such bond. It purports to be the bond of Dunlap as principal, and of Gass and Tucker as sureties, but is only signed by the sureties. It bears neither the signature nor seal of Dunlap, and the question for determination is whether the intended principal or the sureties are bound by it. We are clearly of the opinion that they are not. As Dunlap has never put his signature to it the in

strument is not his deed. If liable for the fees alleged to have been collected and to belong to the plaintiffs, it must be on grounds independent of the supposed bond, and as any one is liable for moneys received which are the property of others. The liability of the sureties is conditional to that of the principal. They are bound if he is bound and not otherwise. The very nature of the contract implies this. The fact that their signatures were placed to the instrument can make no difference in its effect. It purports on its face to be the bond of the three. Some one must

have written his signature first, but it is to be presumed upon the understanding that the others named as obligors would add theirs. Not having done so it was incomplete and without binding obligation upon either. [Bean vs. Parker et. al. 17 Mass.; 591; Wood vs. Washburn, 2 Pick. 24; Sharp vs. United States, 4 Watts, 21: Fletcher vs. Austin, 11 Vert. 447; Johnson vs. Erskine, 9 Texas, 1.] 14 Cal. 422.

SEC. 9. A bond which in form is the joint obligation of a principal and his sureties and not joint and several, and signed by the sureties but not by the principal, is invalid and not binding on the sureties. 21 Cal. 585.

Alterations and Erasures.

SEC. 10. No alteration or erasure will defeat the recovery upon a bond unless it materially affects the rights or condition of the obligor, or is the result of a fraudulent intent to effect the same object. Thus, a bond was made to the sheriff instead of the party to be protected by it by mistake; after the mistake was discovered the name of the sheriff was erased and that of the party inserted: Held, that this did not invalidate the bond. 2 Cal. 523.

Administrator's Bond.

SEC. 11. An action against an administrator on his bond for the faithful execution of his duties as an administrator, is an action against him personally, and may be within the jurisdiction of a justice's court. 1 E. D. Smith (N. Y.) 404.

Injunction Bonds.

SEC. 12. In an action upon an injunction bond to re