tion. In denying the motion, an opinion was filed, in which the learned judge said that it was conceded that the verdict or findings of a jury, in a case of the kind before the court, are merely advisory, and may be adopted in full, or modified or wholly rejected, by the court; that, if the court had mistaken the law, and misdirected the jury in the instructions given, or erred in refusing instructions asked, all such errors can be corrected when the case is finally submitted, and no injury can result to either party; that, though the case was tried half a dozen times, it would still be in the power of and the duty of the court "to reject, modify, or approve any or all the findings of the jury, and adopt such findings only as might be justified by the evidence."

The opinion proceeds as follows: "As far as I am now informed, I am satisfied that I will have to reject some of the findings, and perhaps modify others. My understanding is that other issues and further evidence are yet to be submitted to the court before the final submission of the cause for decision. I prefer withholding a definite and ultimate decision upon the matters involved in this motion until all the evidence is in, and the trial concluded. I see no impropriety in the practice, more particularly as the arguments and briefs of counsel on the motion seem to me to cover substantially the whole grounds of the controversy. Reserving the right hereafter to adopt such findings as are sustained by the evidence, to reject those which are not, and to modify others if necessary, I shall deny the motion."

On the twenty-third of February, 1883, the court filed a series of findings covering the most important issues in the cause. An interlocutory judgment followed, which was filed on the twenty-fourth of July, 1883. By this decree it was adjudged that certain trusts in said property existed in favor of plaintiffs, and defendants were directed to account to them for rents and profits, etc., and a referee was appointed to ascertain certain matters, and report to the court, and take and state the account above referred to. It appears that the referee never acted, and that the inquiry was made and the account was afterwards taken and stated by the court. Additional findings were made by the court covering the matters of which an account was to be taken. These findings were filed on the thirty-first of January, 1884.

The final judgment herein was filed on the first day of February, 1884, and on the eleventh day of the same month a notice of intention to move for a trial was, on behalf of defendants, served and filed. The notice stated that the motion would be made on a bill of exceptions to be settled and filed, and on the following grounds: "(1) Insufficiency of the evidence to justify the findings of the jury upon the issues of fact submitted; (2) insufficiency of the evidence to justify the findings of facts and decision of the court; (3) that the findings of fact and decision of the court are against law and evidence; (4) error in law occurring at the trial, and excepted to by the defendants." Both parties appeared before the judge on the settlement of the bill, which was certified and allowed on the eighteenth day of April, 1884. On the tenth of May, 1884, defendants' motion for a new trial was denied, and the fifth day of July following the defendants appealed from the interlocutory judgment, from the final judgment, and from the order denying their motion for a new trial.

What can be heard by this court on these three appeals?

No appeal lies from an interlocutory judgment except in an action for the partition of real property. Code Civil Proc. § 939, sub. 3. The appeal from the interlocutory judgment may therefore be disregarded.

There is no appeal from the order of July 30, 1882, denying defendants' motion to set aside the verdict of the jury as to certain of the special issues above stated. It is urged, on behalf of respondents, that this motion was for a new trial, opportunely made, and its denial was appealable, and that on such appeal the insufliciency of the evidence to justify the findings of the jury and

the errors of law properly reserved might have been considered; but no appeal having been taken from the order of the thirtieth July, 1882, which it is contended denied defendants' motion for a new trial, and no bill of exceptions or statement settled on such motion, the defendants cannot now be heard on their bill of exceptions as to that part of the trial which was had before the jury. Is this contention maintainable?

In Hinds v. Gage, 56 Cal. 486, which was an action to dissolve a partnership, for an accounting between the partners, for the payment of the partnership debts, and to set aside certain alleged fraudulent judgments and sales, the court below, on the twentieth of June, 1878, filed its findings of fact, and on the twenty-seventh of same month a decree was entered setting aside the judgments and sales, dissolving the partnership, directing the property to be sold by a receiver who had been theretofore appointed, and ordering a reference to a referee to take an account between the partners, and to ascertain the indebtedness of the firm to third parties and between themselves. It was also ordered that the referee report the result of the accounting, and that upon the coming in of the report, and its approval. the proceeds of the partnership property be applied as stated in the decree. On the fifth of July, 1878, defendants gave notice of their intention to move for a new trial, which motion was denied March 5, 1879. The report of the referee was filed October 18, 1878, and after hearing the objections of the defendants thereto, it was confirmed. The court held that, as the notice of motion for a new trial was given before the report of the referee was filed, it was therefore premature, and that the appeal from the order denying such new trial should be dismissed. The court relied on and followed Crowther v. Rowlandson, 27 Cal. 377, in which it was held that it was the intention of the legislature that the proceedings in new trials should be postponed until cases had been tried, and that the trial of the case was not complete until the final report of the referee was filed. The case of Hinds v. Gage has never been overruled.

In the case before us the referee did not act, and the account was taken and stated by the court. The findings on this branch of the case were filed on the thirty-first of January, 1884. If the trial in the case of Hinds v. Gage did not end until the report of the referee was filed, by a parity of reasoning the trial in this case did not end until the filing of the findings of the court on the day first above mentioned. The notice of new trial was served and filed on the eleventh of February following; and, though this was on the eleventh day after such filing, still, as it does not appear that any notice of the filing of these findings was ever served on the defendants, from which service the 10 days in which they had to be given notice of such motion is to be computed, we must hold the notice given in time. The appellants, then, on their appeal from the order of the tenth day of May, 1884, denying a new trial, within the reason of the rule laid down in Hinds v. Gage, have a right to be heard on the matters stated in their bill of exceptions.

Another view may be taken in relation to this matter, which would accord to the defendants the right to be heard as above stated. The case should be regarded as having been tried by the court, and the findings as incomplete until findings latest in date were filed. The defendants, then, have a right to be heard, on giving notice of their motion for a new trial within 10 days after receiving notice of the filing of the findings. As above said, they have received no notice of the filing, and, therefore, their motion was in time.

We think that it is eminently just that the defendants should be here heard on their bill of exceptions. The court, in denying the motion to set aside the findings above mentioned, seemed to be of opinion that the defendants would lose nothing by deferring their notice as they did. This is apparent from the opinion of the court above stated. It is evident from his remarks that the learned judge did not regard the case as finally submitted, and the motion seems to have been denied, without considering the merits of it, on the

ground that it would be better to make it after the final decision,--a course of procedure from which he said "no injury could result to either party." Though this course of procedure, taken at the suggestion of the judge, would not warrant us in establishing a practice not sustained by the Code, still, as we find the course proper, we advert to it to show that, if the defendants are not heard here in regard to the questions arising on their bill of exceptions, injustice would be done them. In fact, their motion for a new trial was not heard on the merits at all in the lower court until after the second set of findings was filed. When the bill of exceptions was settled, no objection was made to it as containing matters not proper to be inserted in it at that stage of the case, and the motion proceeded and was determined as if it was in all respects regularly made.

The parties appear to have acted on the intimation of the court. On the twenty-third of February, 1883, the court, after having been advised by the verdict, filed the first set of findings; and on the fifth of March, 1883, the parties consented in writing that defendants should have 20 days from March 1, 1883, to prepare and serve a bill of exceptions, and file and serve a notice of motion for new trial. On the same day, and in pursuance of this consent, an order of court was accordingly entered. This consent was continued in writing, and by order, to a day subsequent to the settlement of the bill of exceptions. Under these circumstances it would be most unfair now to hold that the bill of exceptions should not be considered in its entirety.

In the course of the trial several exceptions were reserved by defendants to the rulings of the court upon the admissibility of evidence offered on behalf of plaintiffs, which we proceed to consider.

The plaintiffs offered in evidence a petition signed, “F. S. DUFF, by S. M. BUCK, his Atty.," for letters of administration on the estate of Richard Duff, deceased. The petition was filed in December, 1877, and described by metes and bounds, or by reference to lots in certain blocks in the city of Eureka, giving the numbers of the lots and blocks, certain parcels of land as belonging to the estate of Richard Duff, deceased, and stated that certain of the parcels described as belonging to the estate were held by Robert P. Duff. Some parcels of this property described as held by Robert P. Duff were really claimed by and had been conveyed to Frank S. Duff. These parcels, or some of them, are portions of the property involved here. When this paper was offered, there was no proof that F. S. Duff (who is the defendant Frank S. Duff) ever signed it, or knew of its contents, or, in fact, ever heard of it.

At no time has the statute ever required that the real property belonging, or claimed to belong, to the estate of a decedent, should be described in the petition for letters of administration. It is only required that the value and character of the property, "when known to the applicant," should be stated. As the petition must state the facts essential to give jurisdiction of the case, it may in some cases be necessary to state that the deceased left property in the county in which the application is made. Code Civil Proc. § 1294. But the statute never required any further statement regarding the property than that above pointed out.

The paper in question was not offered to prove the fact that an application to procure letters of administration on the estate of the decedent was made by defendant Frank, but as an admission by Frank that certain statements made in it that certain parcels of the land individually claimed by him were not his property, but belonged to the estate of Richard Duff, deceased. This petition is a pleading, and the rules in regard to admissions in pleadings apply to it. Foster v. Wilber, 1 Paige, 540; Van Vleck v. Burroughs, 6 Barb. 344; Carle v. Underhill, 3 Bradf. Surr. 101; Code Civil Proc. §§ 420, 1371. Conceding that it contained the admissions of facts which would be evidence against a party who had knowingly made them, are they evidence against him under the circumstances above mentioned?

In 2 Whart. Ev. § 838, it is said "that the pleadings of a party in one suit may be used in evidence against him in another suit, not as estoppel, but as proof, open to rebuttal and explanation, that he admitted certain facts. But, in order to bring such admission home to him, the pleading must either be signed by him, or it must appear that it was within the scope of the attorney's authority to admit such facts." The learned author cites the following cases: Parsons v. Copeland, 33 Me. 370; Green v. Bedell, 48 N. H. 546; Currier v. Silloway, 1 Allen, 19; Gordon v. Parmelee, 2 Allen, 212; Bliss v. Nichols, 12 Allen, 443; Brown v. Jewett, 120 Mass. 215; Cook v. Barr, 44 N. Y. 156; Tabb v. Cabell, 17 Grat. 160; Hammat v. Russ, 16 Me. 171; Ayers v. Insurance Co., 17 Iowa, 176; Meade v. Black, 22 Wis. 241; Hobson v. Odgen, 16 Kan. 388.

In Cook v. Barr, 44 N. Y. 156, the commission of appeals, speaking by EARL, C., said: "When a party to a civil action has made admissions of facts material to the issue in the action, it is always competent for the adverse party to give them in evidence; and it matters not whether the admissions were in writing or by parol, nor when nor to whom they were made. Admissions do not furnish conclusive evidence of the facts admitted, unless they were made under such circumstances as to constitute an estoppel, or were made in the pleadings in an action, when they are conclusive in that action. They may be contained in a letter addressed to the opposite party, or to a third person, and in either case are entitled to equal weight and credit. They are received in evidence because of the great probability that a party would not admit or state anything against himself or his own interest unless it were true. And I am unable to see why the rule does not apply to admissions contained in the pleadings in an action under our system of practice, which requires the facts to be alleged truly in the pleadings. It must first be shown, however, by the signature of the party, or otherwise, that the facts were inserted with his knowledge, or under his direction, and with his sanction."

In Boileau v. Rutlin, 2 Exch. 664, a question arose on the admissibility of a bill in chancery as evidence of the admission by the complainant of the truth of the facts stated therein, and it was held inadmissible for any such purpose, but only for the purpose of showing that a suit was instituted, and the subject-matter of it. This case was decided in 1848, and Judge CURTIS, in Church v. Shelton, 2 Curt. 275, states that it was held as above after a very careful examination of all the previous authorities both in England and Ireland. The same learned judge further says of this ruling: "I consider this decision to be in conformity with the weight of authority in this country;" and cites Adams v. McMillan, 7 Port. (Ala.) 73; Durden v. Cleveland, 4 Ala. 225; and Isaac's Lessee v. Clarke, 2 Gill, 1.

In Church v. Shelton, supra, the question arose as to the admissibility of a libel as evidence of a confession, by the party filing it, of the particular facts stated in it. The learned judge held it inadmissible as a confession, but admissible on another ground and for another purpose. The purpose for which it was admitted in the case cited does not exist in the case before us. In the cases excluding bills in chancery, they seem to have been considered as the mere suggestions of counsel, for which the parties on whose behalf they were filed should not be held responsible.

In Boileau v. Rutlin, supra, it seems that the privity of the party complainant appeared. Still the bill was held inadmissible as an admission of

the facts stated in it.

In Marianski v. Cairns, 1 Macq. 212, the defendant offered in evidence a pleading (answer) of plaintiff in a suit brought against him by his wife for alimony, as an admission of his poverty. Its admissibility was sustained by the house of lords on the ground that it was signed by the plaintiff. As to this Lord TRURO said: "The document in question stands on a footing quite different from that of pleadings in general, for it is signed by the party him

self; and I recollect to have asked (though I do not remember that I have received an answer) whether it was upon oath or not. Assuming, however, that it was not upon oath, still it was a representation made by the individual himself, under his hand, as to the state of his own circumstances. By that document he described himself as living upon 8s. a week. And, one of the points in this case being whether Marianski had the means to make the advances which he claimed to be due to him, the document was tendered to show his position and resources at a period shortly antecedent to that at which the advances were alleged to have been made by him. Now, it certainly appears to me that this document is not open to the objection which would apply to pleadings in ordinary; and I am of opinion that being a statement of his own circumstances, made by the individual, and signed by him, the fact of its having been made in the course of another suit ought not to render it inadmissible as evidence in this suit."

In McDermott v. Mitchell, 47 Cal. 249, the joint answer of Root and Mitchell in the action of Brock v. Mitchell and Root, verified by Root, but not by Mitchell, was offered in evidence. It was held admissible as to Root, but not as to Mitchell. "As to the latter," the court said, "it was the mere work of the attorney, and not admissible as evidence against the client in another action."

In the cases above cited from Massachusetts, the pleadings were admitted on the ground that they were the statements of an agent (the attorney for the party) while employed and acting within the scope of his authority. 2 Allen, 215.

In this case it appears that the petition admitted was not signed by the petitioner, Frank S. Duff. His name was written at the end of the paper by his attorney. So far as appears, the authority of the attorney was to file a petition appropriate to the procurement of an order of court for letters of administration. This authority would not extend beyond the insertion of such allegations which the law required such application should contain. As is clear from the section of the statute above cited, a description of the property of the decedent's estate was not required, but only the value and character of such property. The character of the property would sufficiently appear by a statement in the petition that it was realty or personalty. The attorney was only authorized to file a petition stating the character and value of the property. In going beyond this, he was not acting within the scope of his authority, and therefore the statements in the petition describing the property were not on that ground admissible.

Evidence in relation to the preparation and filing of this paper was put in at a subsequent stage of the trial. The evidence shows that Frank Duff and his brother, James, called to see the attorney who drew it (Mr. Buck) about the date of its filing. James Duff said to him that he claimed that a portion of the property held by Robert Duff belonged to the estate of his father, and desired to have some one appointed administrator, and a suit brought for the purpose of testing his right. After some conversation Buck proposed to James Duff to file a petition, and asked him who should become the administrator. It seems not to have occurred to James that he could not very well be such because he was not a resident of the state. Buck suggested Frank as a proper person, to which Frank reluctantly assented. Frank had nothing to say about the business. Buck then asked about the property, and James said that it was the property of Robert Duff, and distinctly stated in Frank's presence that he made no claim to the portion of it that belonged to Frank Duff. Buck then asked where he could get a description of the property, to which James replied that he did not know unless from the records. Instead of sending to the recorder's office, Buck sent to the assessor's office, and told the person sent to copy the property assessed to Robert Duff. It turned out that some of Frank's property was assessed to Robert, and this portion of v.12p.no.13-37