is awarded granting a peremptory writ as prayed for. Writ granted.

BRANTLY, C. J., and MILBURN, J., con

cur.

($3 Cal. 99)

HODGE v. NORTON et al. (S. F. 1,617.) (Supreme Court of California. May 29, 1901.) HOMESTEAD-MORTGAGE BY WIDOW-FORECLOSURE MINOR CHILDREN-RIGHTS OF PURCHASER.

Mortgages executed by a widow on homestead property are valid as to her interest therein, and a purchaser of such property at a foreclosure sale thereof is entitled to enter into possession on the youngest child's attaining majority.

Department 2. Appeal from superior court, Santa Cruz county; Lucas F. Smith, Judge.

Action by Thomas Hodge against Marian G. Norton and others. From a judgment for plaintiff, and an order refusing to set aside an execution and order of sale, certain defendants appeal. Affirmed.

Nicholas Bowden, for appellants. S. A. Baker, S. G. Tompkins, and Wm. M. Beggs, for respondent.

HENSHAW, J. Marian G. Norton and H. C. Morril, defendants, appeal from the judgment of the superior court for the foreclosure of a mortgage executed by Marian G. Norton to the plaintiff, and for the foreclosure, on the cross complaint of defendant Yocco, of a mortgage executed by Marian. G. Norton to him. During the progress of the administration upon the estate of Henry B. Norton, deceased, formerly husband of defendant Marian G. Norton, the court in probate set aside about 36 acres of land, as a homestead for the widow, Marian G. Norton, and her two minor children. The property thus set aside was community property; and, subject to the homestead, the title to an undivided one-half vested in Marian G. Norton, and the title to an undivided one-fourth each in the two minor children. One of the children was a minor at the commencement of the action, and would arrive at majority upon January 1, 1900. In 1894 Marian G. Norton executed the mortgage in suit to plaintiff upon her interest in the homestead land. Subsequently,

in 1895, she executed another mortgage upon the same land to her co-defendant Yocco. The decree of the court ordered a foreclosure of the liens of these mortgages, and decreed a sale of Marian G. Norton's interest in the land; providing further, however, that the purchaser at foreclosure sale should be entitled to enter into possession only when the youngest child obtained majority.

Upon this appeal there is no pretense but that the money was paid upon the security of the mortgages, and has not been repaid. The contention merely is that the mortgages so made by Marian G. Norton were nullities, and ineffectual to impose any liens upon the

homestead property. This contention is conclusively answered by the case of Hoppe v. Fountain, 104 Cal. 101, 37 Pac. 894. In that case, as in this, the widow executed a mortgage upon the probate homestead set apart to her and to the minor children, and in discussing the validity of this mortgage it was there said: "As the owner of an undivided interest in the land, it was competent for the mother to mortgage or convey such interest. She could not, however, confer upon her grantee or mortgagee any greater rights in the premises than she herself held. As she could not destroy the homestead quality of the premises, or deprive the minor children of their right to occupy the homestead, any grantee of her interest must take it subject to the same limitations. A purchaser at the foreclosure sale can obtain no greater rights than would her immediate grantee, and the court in the foreclosure proceedings would have no right, by reason of any covenant in the mortgage or allegation in the complaint, to make any order or direct any act which would affect the rights of any of her co-tenants. For the purpose of informing the court of the extent of her interest and the nature of the estate which she had mortgaged, it was proper for her to allege in her answer the manner in which her title had been derived, and to show that the premises had been set apart as a homestead, and that their homestead quality had not yet ceased. Upon these facts being brought to the attention of the court, the decree it might make would be adapted to the rights of the respective parties to the action. As the purchaser under the decree would not have a right of entry upon the premises as a co-tenant until the termination of the homestead, that limitation should be included in the decree under which the sale should be made. The demurrer to the sepa rate answer of Mrs. Hoppe should therefore have been overruled." As overruling this case, the appellants rely upon the case of Moore v. Hoffman, 125 Cal. 90, 57 Pac. 769. But the Hoffman Case neither overrules the Fountain Case, nor is it in conflict with it. In the Hoffman Case a probate homestead had been set apart to the widow and the minor children. Upon obtaining majority one of the children deeded his interest, and the grantee under the deed sought to take possession as tenant in common with the wid

Ow.

It was there decided that when the children arrive at majority their interest in the homestead, as such, ceases, and the homestead as to them is terminated, but as to the widow it continues to be a homestead so long as she desires to preserve its character as such, and does no act towards its destruction. Therefore, in the Hoffman Case, as the widow insisted upon preserving the homestead character, it was held that, as to her, it could not be destroyed by the act of an adult child. In the case at bar, however, it is the widow herself, by her own act, who has destroyed this character.

The court refused to recall and set aside the execution and order of sale which it had issued. The grounds of the motion were that the judgment itself as rendered by the court was void. The court's denial of the motion was therefore proper. The judgment and order appealed from are therefore affirmed.

We concur: TEMPLE, J.; MCFARLAND, J.

(133 Cal. 107)

PEOPLE ex rel., etc., v. BANK OF MENDOCINO et al. (S. F. 2,354.)

(Supreme Court of California, May 29, 1901.) BANKS-INSOLVENCY-DISSOLUTION-FINAL JUDGMENT-INJUNCTION-APPEAL.

1. A judgment in favor of the people, under the bank commissioners' act (St. 1895, p. 175, § 11), to the effect that defendant bank is insolvent, and it is unsafe for it to continue business; that the property of the bank previously sequestered and in the hands of commissioners be delivered to the corporation for liquidation purposes, to be administered by the directors under direction of the bank commissioners; and that the injunction applied for issue, is a final judgment, from which an appeal may be taken under Code Civ. Proc. § 1908, subd. 2.

2. The fact that defendants were enjoined under the judgment from doing business "until the further order of this court" did not affect the finality of the judgment, so as to render it nonappealable.

Commissioners' decision. Department 2. Appeal from superior court, Mendocino county; Albert G. Burnett, Judge.

Suit by the people, on the relation, etc., against the Bank of Mendocino and others. From an order refusing to modify an injunction, defendants appeal. Affirmed.

T. L. Carothers, for appellants. Tirey L. Ford, Atty. Gen., and Geo. A. Sturtevant, Dep. Atty. Gen., for respondent.

*

SMITH, C. Appeal from an order refusing motion of defendants to modify an injunction. The injunction affected by the motion was part of the judgment rendered March 10, 1896, in a suit of the people against the defendant corporation, under section 11 of the bank commissioners' act, as amended March 26, 1895 (St. 1895, p. 175). The motion was made on two grounds, namely, the one, "that the judgment, * by its terms, provides that it be operative only until the further order of the court"; the other, "that the said judgment, in so far as it restrains and enjoins * * * the * * * defendant bank," etc., "is not warranted by the law and facts of the said case." It is claimed by the appellants that the judgment in which the injunction was ordered is "an interlocutory order, and not a final judgment," and the motion, with regard to both the grounds specified, proceeds on this assumption; otherwise, the appeal would not lie, or at least could not be sus

tained, for the time for appealing from the judgment has long since expired, and, assuming it to be final, it was not in the power of the court to modify it. Code Civ. Proc. § 939, subds. 1, 3. On the other hand, even were the judgment interlocutory, and hence unappealable, as not falling within the class of interlocutory judgments mentioned in subdivision 3 of the section, it would not follow that it would be within the power of the court to modify it. Id. §§ 577, 936, 1908. Possibly a judgment may be final in the sense of the term as used in the sections cited, and yet not final as the term is used in section 939. But, under the view we take of the case, it will be unnecessary to consider this aspect of the subject. We are satisfied that the judgment entered in a case of this character is final in the sense of the term as used in subdivision 1, § 939, Id., and therefore appealable. Such a judgment is, in effect, an adjudication that the defendant corporation is insolvent; that it is unsafe for it to continue business; that the property of the corporation previously sequestered and in the hands of the commissioners be delivered to the corporation for purposes of liquidation, to be administered by the directors under the direction of the bank commission-. ers; and that the injunction applied for be issued. Id. § 1908, subd. 2. This is the only judgment provided for in the act, and is, therefore, final in the strictest sense of the term. Stockton Combined Harvester & Agricultural Works v. Glens Falls Ins. Co., 98 Cal. 577, 33 Pac. 633; Bouv. Law Dict. "Decree" and "Judgment." Nor is the case affected by the peculiar language of the judgment, which is that the defendants be enjoined, etc., "until the further order of this court." Indeed, we are not satisfied that this addition to the usual form of the order is improper. It is expressly provided in the act that "the affairs of [the] corporation shall be closed and the business thereof settled within" the time specified in the act; and upon such settlement, and the fact being made to appear, it would doubtless be in the power of the court-or, to speak more cautiously, it would perhaps be in the power of the court to dissolve the injunction. If such be the case, the clause in question would add nothing to the order that was not implied by the law. But, however this may be, the character of the judgment was not affected by the language used. It was undoubtedly final, and there was no limitation as to its effect with reference to its principal provisions, to which the provision for injunction was merely subsidiary. While these remained in force, the injunction-which was essential to their due execution-could not be dissolved. Nor, even if the court had had power or jurisdiction to dissolve it, would it have been justified in doing so. The authorities cited by the respondent fully sustain this proposition.

1. Code Civ. Proc. § 540, provides that a sheriff must safely keep attached property; and section 553 declares that, if the defendant in attachment recover judgment, all the property attached remaining in the sheriff's hands must be delivered to the defendant. Held, that where a sheriff, without an order of court, allowed attached property in his possession to be sold by a warehouseman for storage charges, he was liable for conversion.

2. Property was seized in attachment, and the sheriff, without an order of court, allowed it to be sold by a warehouseman for storage charges, and defendants in the attachment obtained judgment, which they assigned to A. Held, that the fact that A. discharged the sureties on the attachment bond from liability constituted no defense to an action by him against

the sheriff for conversion.

3. Where a sheriff allowed goods which he held under attachment to be sold by a warehouseman for storage charges, and the defendant in attachment obtained judgment, such judgment was admissible in an action against the sheriff for conversion to show a dissolution of the attachment.

4. Where there was evidence that the converted property was worth $315, a judgment fixing its value at that amount was, as a matter of law, supported by the evidence.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; Edward A. Belcher, Judge.

Action by E. H. Aigeltinger against R. I. Whelan and others. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Affirmed. Reddy, Campbell & Metson, for appellants. Wal. J. Tuska, for respondent.

GRAY, C. This action is brought by the assignee of the defendants in an attachment suit against the sheriff of the city and county of San Francisco and the sureties on his official bond for damages arising out of a failure on the part of said sheriff to safely keep the attached property of the said defendants in said attachment suit, and to restore the same to said defendants on de

Rehearing denied June 27, 1901

mand, after judgment rendered in their favor. The plaintiff had judgment, and defendants appealed from the same, and from an order denying them a new trial, and also from an order modifying said judgment.

The undisputed facts of the case are as follows: In the suit of Slosson against Glosser et al., a writ of attachment was issued, and the defendant in this case, as sheriff, under said writ, took into his possession some 22 bicycles and some other articles of small value belonging to said defendant Glosser. Nearly two years later judgment was duly given, made, and entered in said suit in favor of defendants and against the plaintiff therein. Thereupon the said defendant Glosser demanded of said sheriff that he return the property taken by him under said writ of attachment. In response to this demand, the sheriff made no claim of lien on the property for any costs, charges, keeper's fees, or anything of that kind, but stated, in substance, that he did not have the property, that he had stored it, and the warehouseman had sold it for storage, all of which was proven at the trial to be true. Thereafter, and before the commencement of this action, said Glosser assigned his claim against said Whelan, arising out of said facts, to the plaintiff herein. No order was made in the attachment suit allowing or fixing keeper's fees or other compensation to the sheriff for attaching or keeping the property.

It was also proven at the trial, and found by the court, that prior to the commencement of this action the plaintiff herein, in consideration of $60, the amount of the Judgment for costs in favor of defendants in the attachment suit, released the sureties from all obligation on the undertaking on attachment given in said suit.

1. In permitting the property to be sold for storage, the sheriff violated the duty to safely keep the same, and to restore it to the defendant on his recovering judgment. Code Civ. Proc. §§ 540, 553. It is unnecessary to determine whether the sheriff ever had e lien on the property; but as to that matter it is sufficient to say that he had no right to sell the property, or to permit it to be sold, pending the suit, in the absence of an order of the court directing its sale. The act of the warehouseman in making the sale is to be treated as the act of his principal, the sheriff, and in so selling, or permitting the property to be sold, without authority of law, the sheriff became liable as for a conversion of the property, whether he ever had a lien on it for his charges or not. It he had a lien on the property, that alone would not warrant such a sale of it as the circumstances here disclose.

2. Nor does the fact that the plaintiff discharged the sureties on the undertaking on attachment from further liability operate as a defense to this action. They were not joint tort feasors with the sheriff, and it

is immaterial whether or not they were liable at all for the act of the sheriff. It is only by virtue of their contract that they can be held so liable. They were guilty of no tortious act. The sheriff's liability arose from his tortious act in not safely keeping the property, but permitting it to be disposed of contrary to law. In Chetwood v. Bank, 113 Cal. 414, 45 Pac. 704, Urton v. Price, 57 Cal. 270, and Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. 1165, the party discharged by plaintiff in each instance was a Joint tort feasor with the defendant in the suit; and it was upon the joint tort, from which one party to it had been discharged, that action was based in each of those cases. Of course, those cases are entirely inapplicable here. Civ. Code, § 1543; Wristen v. Curtiss, 76 Cal. 6, 18 Pac. 81; Insurance Co. v. Potter, 63 Cal. 157; French v. McCarthy, 125 Cal. 508, 58 Pac. 154.

3. The judgment in defendants' favor in Slosson against Glosser et al. ipso facto dissolved the attachment. Section 553, Code Civ. Proc.; O'Connor v. Blake, 29 Cal. 316; Loveland v. Mining Co., 76 Cal. 564, 18 Pac. 682; Hamilton v. Bell, 123 Cal. 93, 55 Pac. 758. It was proper, therefore, to admit said judgment in evidence to establish the dissolution of the attachment, and show defendants' right to a return of the property; and the fact that the time for appeal had not expired, and the judgment was not final, did not limit its effect on the attachment. On the record before us, no question arises as to whether an attachment may be continued in force by a compliance with section 946, Code Civ. Proc.

4. There was substantial evidence in the testimony of Van Der Vort tending to show that the property at the time of its sale by the warehouseman, as well as when seized by the sheriff, was of the value fixed in the modified judgment. It cannot be said, therefore, as a matter of law, that the decision that the property was worth $315 is without support in the evidence. The Judgment and orders appealed from should be affirmed.

We concur: HAYNES, C.; SMITH, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and orders appealed from are affirmed.

(133 Cal. 72)

PEOPLE. WYNN. (Cr. 729.)1 (Supreme Court of California. May 29, 1901.) CRIMINAL LAW-PLEADING MINOR DEFECTSARREST OF JUDGMENT-INSTRUCTIONS. 1. Minor defects and imperfections in pleadings, not affecting any substantial right of defendant as provided by Pen. Code, §§ 960-1258, are insufficient to sustain a motion to arrest judgment.

2. An instruction that, "in case of a reasonable doubt whether defendant's guilt is satisfactorily shown, he is entitled to an acquittal," shows no error.

1 Rehearing denied June 28, 1901.

Department 2. Appeal from superior court, city and county of San Francisco; William P. Lawlor, Judge.

P. J. Wynn was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

John J. Barrett, for appellant. Tirey L Ford, Atty. Gen., for the People.

HENSHAW, J. Defendant was indicted, tried, and convicted of the crime of obtaining money by false pretenses. He appeals from the judgment, and from the order denying his motion for a new trial. In a long and studious brief his counsel assails the sufficiency of the indictment under which conviction was had, urging that the demurrer to the indictment should have been suștained, and his motion in arrest of judgment granted. But, after careful consideration of the points that he makes, we are satisfied that the ruling of the trial court was correct. The indictment charges an offense in language sufficient and sufficiently clear to put the defendant upon trial before a jury. While there are, as pointed out by the learned judge of the trial court, some minor imperfections and defects in the pleadings, none of them does, nor do they altogether, affect any substantial right of the defendant, and for these reasons the trial court properly refused to arrest the judgment. Pen. Code, ¡§ 960-1258.

Many objections are also presented to the court's rulings in the admission and rejection of evidence. These, too, have been examined. The rulings were without error, or, if it can be said that in any case error was committed, it was harmless to the defendant. To illustrate: Exception is taken to the court's overruling defendant's objec tion to a question asked by the district attorney of the complaining witness, upon the ground that it called for a conversation, without specifying the time and place and circumstances thereof, but the answer which the witness gave to the question began as follows: "He came in there in the evening afterwards,-into this place where I was doing business. I mean, 643 Mission street. And he went into a little room that was there, where was my wife and myself." Thus the answer itself relieved from the force of appellant's objection. Again, error is asserted in the ruling of the court in sustaining the people's objection to questions propounded by defendant to the complaining witness, concerning statements contained in two complaints sworn to by him in the police court, touching the ownership of the money of which the complaining witness was defrauded; but, notwithstanding, the ruling of the court allowed the defendant's counsel the fullest latitude in this inquiry. These are given as examples. It would serve no useful purpose to discuss one by one the many like objections pressed upon our attention. The only instruction given by the

court to which exception is taken is found in its declaration to the jury as follows: "In case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, he is entitled to an acquittal." We fail to see any just ground for complaint in this instruction. Whether or not during the trial of this cause the court took up other legal matters to the injury of defendant, as asserted in the affidavit of counsel for defendant upon his motion for a new trial, was a question disputed by counter affidavits, and one with the determination which was made of it by the trial court we see no valid ground of complaint. The judgment and order appealed from are therefore affirmed.

We concur: MCFARLAND, J.; TEMPLE, J.

(133 Cal. 39)

PEOPLE v. ROWELL. (Cr. 702.) (Supreme Court of California. May 25, 1901.)

BURGLARY-EVIDENCE-ADMISSIBILITY-
MISCONDUCT OF JUROR.

1. Where one witness in a prosecution for burglary testifies to having seen a man running from the burglarized house, evidence of another witness that defendant's shoes corresponded with tracks found at the place of the burglary is admissible, though it is not shown that the tracks were made by the man running from the house.

2. Evidence of the appearance of defendant, accused of burglary, when his shoes were compared and found to correspond with certain tracks, and when brought before the prosecuting witness for identification, is admissible against him.

3. Where the defendant attempts to show an alibi by proving his presence in a certain saloon at the time of the commission of the crime, the fact that a juror visits the saloon during the trial is not sufficient misconduct to invalidate a conviction.

Department 1. Appeal from superior court, Los Angeles county; B. N. Smith, Judge.

George Rowell was convicted of burglary, and he appeals. Affirmed.

W. H. Shinn, Zue G. Peck, M. E. C. Munday, and E. E. Rowell, for appellant. Tirey L. Ford, Atty. Gen., and A. A. Moore, Dep. Atty. Gen.. for the People.

GAROUTTE, J. Defendant has been convicted of the crime of burglary, and appeals to this court. Some intimations are made to the effect that the evidence is insufficient to support the verdict; but, after a careful reading of it, the court is entirely satisfied with the verdict rendered. A witness testified that she saw a man, soon after the burglary, running from the house burglarized. A second witness testified that, in the presence of the defendant, he placed defendant's shoes in certain tracks which he found near the scene of the burglary, and that the shoes fitted those tracks. The objection was made that the tracks to which the shoes were fitted were not those made by the per

son to whom the first witness referred. This objection goes to the weight of the evidence, and in no way to its competency. If tracks near the scene of the crime compared with defendant's shoes, it was some evidence tending to show that defendant was there when the crime was committed. The weight of the evidence would be dependent upon a hundred different circumstances, and the particular weight to be given to it was for the jury alone to determine. The court sees no reason why the evidence of similarity in the tracks when compared with defendant's shoes would not have been admissible, regardless of the evidence of the first witness to the effect that she saw a man hastening away from the scene of the crime. We see no error in the admission of evidence as to the appearance of defendant when the tracks and his shoes were compared, or when he was brought before the prosecuting witness for identification. This character of evidence has always been held admissible. The identification of the cane found in the house as being the cane seen in the possession of the defendant shortly prior to the commission of the crime was amply sufficient to justify its admission in evidence.

Misconduct of the juror Stein in visiting a certain saloon during the progress of the trial is claimed to have amounted to error. Defendant's evidence tended to show an alibi to the effect that he was in this saloon building at the time the crime was committed in another portion of the city. Stein made affidavit that he went to this saloon for lawful purposes; but, aside from that fact, it would seem that the mere circumstance of a juror visiting a public place of business, only material to the case by reason of defendant's claim that he was there when the crime was committed in another portion of the city, could not possibly affect defendant prejudicially.

There are a few other objections made to the admission of evidence, but we find the rulings of the court thereon to be sound. Also, the action of the court in giving and refusing certain instructions of which complaint is here made is without error. For the foregoing reasons, the judgment and order are affirmed.