damages to real property, the case should be tried in the county where the property was situated. We think this motion should have been granted. Section 392, Code Oiv. Proc., provides that "actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial as provided in this Code: (1) For the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property." It will be seen that the section is mandatory by its terms, and unless it is controlled by, or is in conflict with, some provision of the constitution, the action "must be tried" in the county where the property is situated. Section 16, art. 12, of the constitution, provides that “a corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases." This provision of the constitution does not affect the Code provision quoted. It relates to a different subject, and is not necessarily inconsistent with said Code provision. The constitutional provision does not in express terms refer to actions for injuries to real estate or to actions concerning real estate. We cannot be permitted to infer that it was meant to include injuries to real estate in its provisions because it uses the phrase, "or where the obligation or liability arises"; for to indulge in such an inference would make it include actions for the enforcement of liens on real estate, to quiet title, etc., and render it inconsistent with section 5, art. 6. It cannot be successfully contended that the two sections of the constitution referred to are not in harmony (Fresno Nat. Bank v. Superior Court of San Joaquin Co., 83 Cal. 491, 24 Pac. 157); and the same rule that would harmon

ize these provisions of the constitution, and give effect to both, would also harmonize the Code provision with the quoted section of the constitution. In Griffin & Skelly Co. v. Magnolia & Healdsburg Fruit Canning Co., 107 Cal. 378, 40 Pac. 495, the court, in speaking of section 16 of article 12 of the constitution, says: "This provision of the constitution is merely permissive to the plaintiff (Fresno Nat. Bank v. Superior Court of San Joaquin Co., 83 Cal. 491, 24 Pac. 157); and the provision therein that the court may 'change the place of trial, as in other cases,' indicates that it is no more controlling upon the action of the court than if it were a mere statutory enactment. Being a provision of the constitution, the legislature cannot deprive the plaintiff of the privilege which it confers, but he has not thereby received any greater privilege than if the same provision

had been made by statute. In either case it is only a rule of procedure, to be acted upon by the court in connection with other rules of procedure."

The very question here involved has been determined in Drinkhouse v. Waterworks, 80 Cal. 308, 22 Pac. 252. As shown by the complaint in that action, the defendant had its principal place of business in the city and county of San Francisco, where the action was begun for injury to real estate situated in San Mateo county. The defendant moved to change the venue to San Mateo county, the motion was granted, and this court affirmed the order. It is true that no provision of the constitution is referred to in the opinion or cited in the briefs; but section 392, Code Civ. Proc., is referred to, and it is directly held that under that section the proper place for the trial of an action for injury to real property is in the county where such real property is situated. We should not presume that the court and counsel overlooked a provision of the constitution, but rather that they had it in mind, and saw no inconsistency between it and the Code provision. Fresno Nat. Bank v. Superior Court of San Joaquin Co., supra. For the foregoing reasons, we advise that the order be reversed.

1. Plaintiff testified that he owned a cigar store, and had been in possession of the goods therein for nearly a month, before defendant constable took possession thereof. A witness testified that at the time the goods were sold to plaintiff they were delivered, and had been in plaintiff's possession ever since. Plaintiff's daughter testified that the goods were moved from the apartments of her husband to those of her father, in the same house, on the night of the sale. Plaintiff thereafter employed his son-in-law about the store to sell the goods bought from him. Held sufficient to show an immediate delivery and an actual and continued change of possession as against defendant constable's levy thereon as the goods of the son-in-law.

2. Where plaintiff's demand and affidavit setting out his title and right to goods wrongfully in the possession of defendant constable were set forth in the verified complaint, and not denied in the answer, and the affidavit and demand were thereafter offered in evidence without objection, there was no error.

3. Where plaintiff testified as to the value of goods wrongfully attached by defendant constable, and offered in evidence without objection an invoice taken a short time prior to the attachment, without contradictory evidence as to the value, a verdict for a less amount is supported by the evidence.

4. In an action to recover possession of personal property, plaintiff may recover damages for the detention thereof.

Commissioners' decision. Department 2. Appeal from superior court, Santa Clara county; M. H. Hyland, Judge.

Action by J. H. Hickey against M. Coschina and others. From an order denying a new trial, defendants appeal. Affirmed.

I. S. Thompson and C. L. Witten, for appellants. Will M. Beggs, for respondent.

COOPER, C. This action was brought to recover of defendant Coschina, as constable, and the other defendants, as sureties on his official bond, a certain stock of cigars, goods, and fixtures in a cigar store at No. 116 West Santa Clara street, in the city of San Jose, or, in case a delivery cannot be had, the value thereof, with damages for the detention. The case was tried with a jury, and a verdict returned for plaintiff fixing the value of the property at $315, and the damages to plaintiff by reason of the taking at $140. Judgment was accordingly entered. Defendants made a motion for a new trial, which was denied, and this appeal is from the order denying said motion.

No objection appears to have been made to the instructions given by the court to the jury. The principal question discussed in the case is as to whether the evidence supports the verdict. There is no question here as to the good faith of plaintiff in purchasing the goods, nor as to the payment of the purchase price. The only question is as to whether the sale was accompanied by an immediate delivery, and followed by an actual and continued change of possession. The evidence upon this question was conflicting, but the jurors were the judges of the question of fact, and by their verdict they have determined that there was such immediate delivery and actual and continued change of possession. The court below had the power to, and no doubt did, carefully weigh and consider the evidence for the purpose of determining whether or not the verdict was the correct conclusion from all the testimony in the case. It had the power to set aside the verdict, even though the evidence was conflicting, if convinced that it was unjust, or not in accord with the weight of the evidence. Here we have no such power. The presumptions are all in favor of the correctness of the verdict. To this presumption is added the sanction of the court below in denying the motion for a new trial. We can, therefore, only look to the evidence, and, if the verdict finds substantial support therein, we cannot disturb it. The plaintiff testified: "I took possession of the goods that evening. Some of them were already in my rooms, and the balance was put in my rooms. *

I was the owner and conducting a cigar store at No. 116 West Santa Clara street, in the city of San Jose, California, on the 6th of April, 1897. I had been engaged in that

business about a month. I commenced fitting up my store on the 1st day of March, 1897, and opened it for business about the 10th day of March, 1897. I continued my business at the same place until the defendant M. Coschina took possession of it on the 6th day of April, 1897." The witness Offield testified: "At the time of the sale the goods were delivered into his possession, and he has had continuous possession of them ever since." Mrs. Offield, the daughter of plaintiff, testified: "The position of the goods was not changed until the evening of the sale. About half were in father's rooms, and half in our rooms, and they were all moved into father's rooms that night." There is other testimony tending to show an immediate delivery and an actual and continued change of possession, but the above is sufficient. It is urged that plaintiff, after the sale, employed Offield, his son-in-law, in and about the cigar store. While this was a suspicious circumstance, and one that should have been carefully weighed by the jury and the court below, yet it was by no means conclusive. It was a circumstance that might be and was explained. The jury had the right to believe the explanation. If the sonin-law, after the sale, had made no delivery, and continued in the sole and exclusive possession, it would amount to a fraud in law. But there is evidence of an actual delivery and a continued change of possession. The employment by plaintiff of the son-in-law who had sold the goods is not prohibited by statute.

It is claimed by appellant that the court erred in admitting in evidence the demand and affidavit of plaintiff setting out his title and right to possession under Code Civ. Proc. § 689. The argument of appellant is that the evidence shows that a copy, and not the original affidavit, was served. It is sufficient to say that no such objection was made when the affidavit was offered in evidence. Further, there was no issue as to the demand and affidavit. The complaint, which is verified, alleged that the demand and affidavit marked "Exhibit A" were served upon de fendant Coschina. The answer does not deny the allegation. The verdict fixing the value of the property is supported by the evidence. The plaintiff testified that he took an invoice four days before the goods were attached, and that the stock and fixtures footed up $482. This evidence is not contradicted. Nor has our attention been called to any other evidence as to the value at the time of the taking. The evidence seems to have been admitted without objection, and we cannot say that it was not competent for all parties to allow the invoice as evidence of value.

There was evidence to support the portion of the verdict awarding plaintiff damages. Plaintiff testified that he was damaged in the sum of $450 or $460. No objection appears to have been made to this evidence, nor is

it shown in cross-examination or otherwise how this damage was estimated. But we must take the record as we find it, without regard to what the record under other circumstances might show. In an action to recover the possession of personal property the plaintiff may recover damages for the detention. Code Civ. Proc. § 667; Kelly v. McKibben, 54 Cal. 193.

The defendants appear to have allowed a general allegation of damage to go unchallenged in the complaint. They also allowed the plaintiff to make a general statement as to how much he was damaged, without requiring him to state in what manner. The jury seems to have compromised the matter by allowing $115 damages. We cannot disregard the evidence for the first time in this court, and hold that there is no evidence of damages. The order should be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the order is affirmed.

(133 Cal. 131)

In re GREGORY'S ESTATE. (S. F. 2,528.) (Supreme Court of California. May 29, 1901.) WILLS CONTEST-EVIDENCE-DECLARATION OF DECEASED-HEARSAY.

On application for the probate of an alleged will, which was contested by one named as executor in a former will, on the ground that it was a forgery or procured by undue influence, contestant was permitted to offer testimony and to testify to declarations made by deceased, about the time the alleged will bore date, that the persons charged with procuring such will were hounding her pretty nearly to death, trying to get her to make such a will, and that thereafter and shortly before her death she repeatedly said she had made no will since the one in which contestant was named as executor. Held, the reception of such testimony was error, since testimony of declarations of an alleged testator as to menace or duress or as to the fact of his signature is hearsay, and should not be received.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

Application by A. C. Freese, public administrator of San Francisco, for probate of the will of Catherine E. Gregory, to which Robert Ash filed a contest. From an order denying a new trial after judgment denying probate, proponent and legatee appeal. Reversed.

J. D. Sullivan and Adams & Adams, for appellants. Robert Ash and Lloyd & Wood, for respondent.

CHIPMAN, C. A. C. Freese, public administrator of the city and county of San Francisco, filed his petition for letters with the will annexed of Catherine E. Gregory, deceased, praying that it be admitted to probate. In the offered will, Charlotte B. Gregory, adopted daughter of deceased, is

named as legatee, and Martha Munson, widow of the late John Munson, as guardian of Charlotte, but no executor was named. It was dated December 10, 1895. Deceased died about August 17, 1898. Robert Ash appeared as contestant, alleging that he is the executor named in the last will of deceased, dated March 22, 1892, and one of the legatees under said will, and guardian of the estate of Charlotte, who is also one of the legatees. As grounds of contest, it is alleged: First. That the will of December 10, 1895, is a forgery, and was written by one W. C. Rippey. Second. That it was not signed by deceased in the presence of any witnesses or acknowledged to have been signed by her. Third. That it "was prepared and procured by one W. C. Rippey, and obtained through the undue influence of the said W. C. Rippey and Martha Munson." The specification alleges that deceased was in ill health, was in the habit of drinking intoxicating liquors to excess periodically, and was of nervous temperament, and susceptible of being easily influenced by persons in her company who would supply her with liquors, a small quantity of which would affect her and render her incompetent to transact or understand important business transactions; that on said 10th day of December, 1895, the said Rippey and Munson were with deceased in her house, and induced her to drink intoxicating liquors, and deceased did drink such liquors, and became under the influence thereof, and while in said intoxicated condition the said Rippey and Munson prepared the alleged will, and induced deceased to sign the same. Fourth. The same specifications are stated in support of the allegation of fraud in the procurement of the will. The allegations of the contest were specifically denied. Certain questions were submitted to a jury, to which they answered, in effect, that the alleged will was not signed by deceased in the presence of the attesting witnesses or at all, nor acknowledged by her to have been signed, nor was it declared by her to be her will. The jury answered that deceased did not sign or acknowledge or declare the will to be her will under undue influence of either Rippey or Munson. The court adjudged that the will offered for probate is not the will of deceased, and denied it probate. The appeal is from the order denying motion for new trial, and is prosecuted by the public administrator and by Charlotte, who appeared by attorney in the action. Mrs. Munson appeared at the hearing by counsel, but she does not appeal.

1. The question of first importance raised by the appellants relates to alleged error in permitting certain declarations of deceased to be given in evidence. Contestant called James Geary as a witness, who testified, against proponent's objection, that he knew Mrs. Gregory in 1891; also that he met her three months before her death, at which

time she said: "I think I will die very soon. I have got everything in good shape. My will has been made, and I feel contented if I do die." He stated that he had the child Charlotte at his house in 1891, and while there Mrs. Gregory spoke to him about making her will. "Three months later, after the child went home, she (Mrs. Gregory) told me she had made her will. Q. What did she say about it? A. She told me she had made her will, and that Mr. Ash had consented to take care of the child and be guardian of the child, and that she had made it an object in her will for Mr. Ash to do so, and he had consented. This was late in 1892." He testified that he spoke with her concerning her property and the disposition she had made of it in the event of her death, about three months before her death, and that she told him she had not made any other will. Robert Ash testified in his own behalf. He had been Mrs. Gregory's attorney for several years, and attended to much of her business for which he had been paid. Against proponents' objection, he was asked to, and did, identify a certain promissory note given by Rippey to deceased, and also a certain order for promissory notes purporting to be signed by deceased, and delivered by Rippey to Ash. "Q. State what Mrs. Gregory said about the genuineness of her signature as attached to this paper." The question was objected to, and counsel for contestant stated that he offered it-First, to show the influence that Rippey had over her; and, second, to show that Mrs. Gregory had repudiated the signature which counsel for proponent claimed compared with the signature attached to the will in dispute. By her declarations it was thus sought to establish the forgery of the will by showing what she said as to the genuineness of her signature to a certain paper. He was then asked to state what Rippey was seeking to do "with regard to the making of a will by her, and the disposition of her property. It was about two weeks before this will in dispute was made. She said Rippey had been hounding her pretty nearly to death, trying to get her to make a will in favor of the old woman, Mrs. Martha Munson,-annoying her all the time; both Mrs. Munson and Rippey. She said: 'I don't know what he may do. He claims that he can prove and show that the child, Charlotte B. Gregory, was the child of young Jim Fair, and I have got to listen to some of his statements when he comes around in that way. I have been supporting him and taking care of him, and I don't know what he may do.' She further said: 'I will go and get the letters to me on the subject of this note.' And she went and got them, and told me to keep all those papers, and said: 'You may need them some time. Look out now. I don't know what he may do.' She also said that Mr. Rippey had been annoying her and trying to appoint Mrs. Munson as guardian of the

A.

'He must think I am

child, and she said: crazy, to place an old woman as guardian over that little girl.' That is what she said, and she became indignant. At different times subsequent to December 10, 1895, I had conversations with the deceased regarding the matter of her will, up to the time of her death. The night prior to the day before her death (she was sick in bed) she told me she thought she would never get out of the bed; that she was going to die; and she said: 'I want you to carry out my will, and take care of that little girl.' I said: 'I will do it. Don't worry about it.' She told me three or four times then that she wanted me to carry out her will; that everything was in my hands, and she wanted me to see the little girl was taken care of. She told me positively there was no other will in existence." The will referred to by contestant, under which he claimed, had been previously introduced in evidence against proponents' objection, which is the only other error now urged, and will be noticed later.

There was no evidence which in the slightest degree indicated mental incapacity of deceased by reason of periodical drunkenness or any cause whatever. There was evidence that she became intoxicated at times, but no evidence in any way indicating want of mental capacity from that cause, or connecting her drunkenness with the making of any will; and her alleged incapacity to make a will, by reason of her alleged disposition to become periodically intoxicated, was not even submitted to the jury as an issue of fact. The evidence was all addressed to the issues of forgery and undue influence. It requires no argument to show that the declarations of the deceased were prejudicial, if it was error to admit them. That it was error, we entertain no doubt. Appellants cite in support of their objections to the evidence typical cases from very early times to the present. These cases state the rule and the principles upon which it rests. They are: Strode v. Russel (1708) 2 Vern. 621; Jackson v. Kniffen (1806) 2 Johns. 31, 3 Am. Dec. 390; Provis v. Reed (1829) 5 Bing. 435; Shailer v. Burnstead, 99 Mass. 112; Stevens v. Vancleve, 4 Wash. C. C. 262, Fed. Cas. No. 13,412; Robinson v. Brewster, 140 Ill. 649, 30 N. E. 683, 33 Am. St. Rep. 265; Gibson v. Gibson, 24 Mo. 227; Jones v. Roberts, 37 Mo. App. 163; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; In re Palmateer's Will, 78 Hun, 43, 28 N. Y. Supp. 1062; Bush v. Bush, 87 Mo. 480; Gordon's Case, 50 N. J. Eq. 397, 26 Atl. 268; Kennedy v. Upshaw, 64 Tex. 411; Boylan v. Meeker, 28 N. J. Law, 274. And from our own Reports: In re Calkins' Estate, 112 Cal. 296, 44 Pac. 577; In re Kaufman's Estate, 117 Cal. 288, 49 Pac. 192; In re James' Estate, 124 Cal. 653, 57 Pac. 578, 1008. To which may be added People v. Rodley, 63 Pac. 351. The answer made to these cases is that this "whole line of authorities refers to cases where a deed,

bond, or will has been in fact executed, and its execution proved." It is claimed that the paper filed as a will by proponent "was never established even by alleged attesting witnesses, or either of them. It was claimed to be a forgery. Its execution was not established, and the jury pronounced it a forgery." Contestants rely upon Throckmorton v. Holt, 12 App. D. C. 552, and cases there cited; also Johnson v. Brown, 51 Tex. 65; Hoppe v. Byers, 60 Md. 381; Colvin v. Warford, 20 Md. 367; Neel v. Potter, 40 Pa. 483; Boylan v. Meeker, supra; Turner v. Hand, 3 Wall. Jr. 88. Fed. Cas. No. 14,257; and sections 1800, 1850, Code Civ. Proc. Throckmorton v. Holt, on which respondent relies as a lead ing case, we are informed was reversed by the United States supreme court on appeal. 21 Sup. Ct. 474, 45 L. Ed. - It is true that in some of the cases cited by appellants the question arose where the fact was that the will had been duly executed and proved by subscribing witnesses, but we cannot say that this fact was regarded as essential to the operation of the rule. We are unable to see why this should be an invariable test by which the rule is to be applied. The danger in admitting declarations would be equally great in both cases. Where the very question under examination is one of execution, how could it be said that the execution had been proved? Such a situation might exist where the proceeding is to revoke a will that had been proved. Code Civ. Proc. $ 1327. But where, as in the present case, the initiatory proceedings are to determine the question of execution or no execution, there could be no such thing as an existing duly executed and proved will to overthrow. The very offer to prove the will is arrested by the contest. The Code of Civil Procedure (section 1312) provides that in cases of contested wills "the contestant is plaintiff and the petitioner is defendant." For the purposes of the contest there are no issues before the jury, except such as are presented by the contestant, and evidence on no other issues can be submitted to the jury. "It is necessary, before the court can admit a will to probate, to require proof of all the acts requisite to constitute the execution of a valid will; but the proof of the acts, as to which the contest is not addressed, will be heard and passed upon by the court alone, and is not to be submitted to or passed upon by the jury" (In re Cartery's Estate, 56 Cal. 470); but, so far as contested issues are concerned, the burden of proof is on the contestant. It devolves on him to allege and prove the facts on which he relies to prevent probate of the will. His evidence is first called for and first submitted, and not until he rests is the proponent called upon to submit any evidence. As to matters or acts necessary to a valid will not put in issue by the contest the contestant has no voice. It is with the court to require the proofs from the proponent. In re Gharky's

Estate, 57 Cal. 274; In re Dalrymple's Estate, 67 Cal. 444, 7 Pac. 906; In re Burrell's Estate, 77 Cal. 479, 19 Pac. 880. Why should contestant be permitted to attack the will by declarations which would not be admissible in a proceeding to revoke where the will has been proved? We can perceive no good reason. The petition states, among other things, "that said deceased left a will

* [describing it and offering to produce it] which your petitioner believes, and therefore alleges, to be the last will and testament of said deceased," etc. It cannot be that the door to declarations of the deceased is thrown wide open, and that a contestant is at liberty to appropriate indiscriminately whatever the deceased may have said in her lifetime in support of the contest, simply because the execution of the will has not been proved; that contestant is permitted to prove by declarations what perhaps he could prove in no other way, solely because as yet the will has not been proved; and this, too, where the orderly course of the proceeding prescribed by the statute places proponent in a position where he can submit no proofs until after the contestant has rested. We cannot believe that the rule governing the admissibility of declarations can depend upon or is controlled by the fact that the proposed will has been already proved or admitted to have been executed by the deceased. There may be different and greater reason in the one case than the other, but the principle upon which declarations are excluded as hearsay applies in both cases. The declarations admitted in this case do not go to the question of mental capacity at all. They go directly to the issue of forgery and undue influence and fraud, and to the independent, substantive fact that deceased did not execute the will in question, by showing that she said in her lifetime she made no will except that of March 22, 1892. In short, contestant was permitted to prove declarations of the deceased which went to the principal issues in the contest, and did not go, nor were they intended to go, to mental capacity or the state of her mind in any perceptible degree. It was said in Re Calkins' Estate, supra: "Where a will is contested on the ground of undue influence or other like cause, not drawing into question the mental capacity of the testatrix at the time of its execution, neither her prior nor subsequent declarations are admissible to show either that the influence was exercised or that it affected her actions. To the extent that they purported to be declarations of the acts of others or her own acts, they were but matters of hearsay, merely, whose truth rested in the veracity of the utterer, and upon which there was no opportunity for crossexamination or explanation by the party who uttered them, and were not entitled to any weight by the jury, and cannot be considered for the purpose of sustaining the verdict. The court should not have permitted evi