mortgage debt, and also further modifying the decree by directing the trial court to "adjudicate separately the amounts due on the real estate described in the first two mortgages and those due on the chattel mortgage, and directing the sale of said real estate and personal property separately, each for the amount due on it. * 容 And, as so modified, the judgment should stand affirmed." The modified decree was entered June 20, 1900. The real estate, however, had already been sold, and was purchased by plaintiffs, as above stated, but the personal property was not sold. It is this sale which defendants seek to set aside by their first motion. Defendants have shown no injury resulting to them from the sale. The restitution which the court may make under section 957, Code Civ. Proc., when the judgment or order is reversed or modified, is not mandatory, but rests in the discretion of the court. Yndart v. Den, 125 Cal. 85, 57 Pac. 761. The only showing made by defendants in support of the motion was that this court had modified the original decree; but no facts are set forth in the affidavit, nor does anything elsewhere appear, from which it can be seen that any injury has come to defendants by the sale, or that they would be benefited by setting it aside. Some question is raised as to whether the lower court modified the original decree as directed, but, conceding that in some respects the modified judgment does not conform strictly to the directions given by this court, the fact cannot avail defendants on this motion, without it is made to appear that the judgment, when modified as is claimed by defendants it should be, would entitle them to have the sale set aside. No such showing is made. There is no pretense that the real property which was sold failed to bring its full value, or that there was any unfairness in the sale, or that on resale it would bring more than it sold for at the first sale. Nor does it appear that in selling the real property to pay the entire judgment, including the note secured by the chattel mortgage, the price paid was sufficient to pay the real-estate mortgages in full. Unless the proceeds of this sale were applied in part payment also of the chattel mortgage, we cannot see that defendants suffered injury, even though it was error, as was held here on the first appeal, to sell the real property in order to pay the judgment, which in fact included the chattel-mortgage debt. The facts show that the amount realized from the sale of the real estate was less than the amount due on the real-estate mortgages. Defendants have not brought themselves within the principles laid down in Barnhart v. Edwards, 128 Cal. 572, 61 Pac. 176, and cases there cited, and are not entitled to have the sale set aside. It is further claimed that the order of sale is directed to the sheriff, and as it was not executed by that officer, but by a commissioner, the sale is void and should be set 65 P.-53

aside. This was not made a ground of defendants' motion to vacate the sale, and is presented here for the first time. But, aside from this fact, the decree directed the sale to be made by a commissioner who was named therein, and the decree was copied in the body of the order of sale and formed part of it, thus plainly showing that the order of the court was intended to be executed by the commissioner, as in fact it was; and his authority to act is found in section 726, Code Civ. Proc., as amended in 1893. The Code provides that the commissioner, when appointed, shall possess the powers and be subject to the duties of sheriffs in like cases. At most, the direction of the order of sale to the sheriff was a harmless irregu larity. McDermot v. Barton, 106 Cal. 194, 39 Pac. 538.

2. Concerning the modified judgment, which is claimed to be excessive, we can discover no error, except that in the attorney's fee allowed on the chattel mortgage, which should not exceed 25 per cent. of the amount due at the date of the original judgment, which would be $66.55, instead of $75, as stated in the modified judgment. Defendants make the point that the modified judgment must be reversed because the trial court did not amend the findings, and therefore the modified decree is without support. This court did not direct any amendment of findings. Indeed, if any amendment had been necessary to the modifications, the judgment would have been reversed, and not modified. This court does not direct amendments of judgments where they would conflict with the findings. It can neither make findings nor amend findings.

3. Inasmuch as the sale cannot be set aside, plaintiffs had an undoubted right to a writ of assistance on proper proceedings. No question is raised as to the regularity of the steps taken, except that it is claimed that the commissioner's deed and demand were not served on Arnold Ellenberger, the incompetent, who was the owner of the real property described in the deed. It appeared in the affidavit served with the notice of the application for the writ that one E. Ellenberger was the guardian of the person and estate of Arnold Ellenberger, an incompetent person, and that the said guardian was in possession of the premises, and that George G. Taylor, one of the plaintiffs, presented to the said guardian, both as guardian and individually, the commissioner's deed, and demanded of him possession of the premises. E. Ellenberger appeared and answered in the action as general guardian throughout all the proceedings. It was early determined by this court that a general guardian may appear in an action for his ward without personal service first made on the latter. Redmond v. Peterson, 102 Cal. 595, 36 Pac. 923, 41 Am. Rep. 204, and cases cited. At the hearing of the motion for the writ, counsel "appeared specially for defend

PEOPLE v. SIMPTON. (Cr. 719.) (Supreme Court of California. July 16, 1901.)

PERJURY-INDICTMENT-SUFFICIENCY.

In a prosecution under Pen. Code, § 118, providing that every person who, having taken an oath that he will testify truly before any competent tribunal, in any of the cases where an oath may by law be administered, willfully states as true any material matter which he knows to be false, is guilty of perjury, an indictment alleging that the defendant, before a certain notary public in and for a certain city and county, duly authorized to administer oaths, did then and there willfully, falsely, and feloniously swear, take oath, and make his affidavit and state matters material in said proceeding as true, which he knew to be false, and did then and there depose and swear in substance as follows, etc., does not charge the offense of perjury, in that it does not show that defendant was sworn to testify truly, or that any party administered an oath to him.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; Carroll Cook, Judge.

G. W. Simpton was indicted for perjury. From an order sustaining his demurrer to the indictment, the people appeal. Affirmed.

Tirey L. Ford, Atty. Gen., and Lewis F. Byington, Dist. Atty., for the People. D. J. Murphy and J. H. Budd, for respondent.

COOPER, C. This appeal is by the people from an order sustaining defendant's demurrer to the indictment. The indictment attempted to charge the defendant with the crime of perjury in making a certain affidavit in the estate of James G. Fair, deceased, in a proceeding entitled "Petition of Nettie R. Fair for a Family Allowance." The main contention in support of the ruling of the lower court is that the indictment fails to show that an oath was taken by, or administered to, defendant. The indictment is quite lengthy, and it is necessary to state herein only the portion of it bearing upon the point under discussion, nor is it necessary to discuss other questions raised by counsel, for the reason that the demurrer was properly sustained upon the grounds

herein given. The part of the indictment material here is as follows: "And the jurors aforesaid, on their said oaths, do say that on or about the said 12th day of August, 1899, at the said city and county of San Francisco, state of California, the said G. W. Simpton, before one Harry J. Lask, a notary public in and for said city and county of San Francisco, state of California, residing therein. and duly commissioned and sworn, and then and there duly authorized by law to administer oaths, and authorized by law to administer an oath to the said G. W. Simpton, did then and there willfully, corruptly. knowingly, falsely, and feloniously swear, take oath, and make his affidavit and state matters material in said proceeding as true which he knew to be false, and did then and there depose and swear in substance as follows." The Penal Code provides: “Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath states as true any material matter which he knows to be false, is guilty of perjury." Section 118. It is evident, from the definition of "perjury" contained in said section, that it is of the very essence of the offense that the person alleged to have committed the crime must have been first duly sworn that he would "testify, depose, or certify truly" before a competent tribunal, officer, or person. There is no pretense of a statement that defendant was sworn to "testify truly" in said matter. He must have been first duly sworn to "testify or depose truly" before he could have been guilty of perjury in not testifying truly. The words "swear, take oath, and make his affidavit" are not equivalent to an averment that he was "duly sworn to testify truly." It is not even alleged that any party administered an oath to defendant.

If he

"took oath" by having it administered by some other notary public or magistrate in the presence of Lask, or if he took it by solemn vow made to himself, it might be true that he took oath before Lask. It is essential that an indictment shall state every fact and circumstance necessary to constitute the offense charged in direct and positive language. If not in the words of the statute, it must be by plain and direct words which are equivalent. It must clearly appear upon the face of the indictment that a crime has been committed. No imagination or presumption can be called in to aid a defective indictment. If the facts stated may be true, and yet may or may not constitute a crime, the presumption is that no crime has been charged. People v. Terrill, 127 Cal. 100, 59 Pac. 836.

Applying the test to this indictment. it will be readily seen that it does not charge an offense. Some other than Lask might have administered the oath, and yet the in

dictment be true. Defendant might have taken an oath to the effect that he would not testify truly, and the indictment be true because it is not even intimated that he took an oath to testify truly. At common law it was necessary for the indictment to allege that the defendant "was sworn and took his corporal oath before [naming the officer], on the Holy Gospel of God, to speak the truth, the whole truth, and nothing by the truth, of and concerning the matter then depending." 2 Whart. Prec. Indict. pp. 6, 7. St. 1 & 2 Vict. c. 105, changed the rule by providing that the oath might be administered "in form and with such ceremonies as such person may declare to be binding"; but this statute did not dispense with the necessity of administering an oath to the party. Our Code has recognized the modern tendency to regard the conscientious scruples of all persons by providing that "the term oath as used in the last section includes an affirmation and every other mode authorized by law of attesting the truth of that which is stated." Pen. Code, § 119. But, although the term "oath" is defined, there is no provision dispensing with the necessity of being sworn to testify, declare, depose, or certify truly before a competent tribunal, board, or person; and all indictments or informations for perjury in this state, in the cases to which our attention has been called, state that the defendant was duly sworn before some competent tribunal, officer, or person to testify, declare, depose, or certify truly. People v. Ah Bean, 77 Cal. 12, 18 Pac. 815; Same v. De Carlo, 124 Cal. 463, 57 Pac. 383; Same v. Rodley (Cal.) 63 Pac. 351. In People v. Dunlap, 113 Cal. 74, 45 Pac. 183, the indictment charged that the county assessor had authority to administer oaths, and that defendant "did then and there willfully, corruptly, falsely, and feloniously testify, declare, depose, swear, and certify, * * in a case in which said oath was by law properly administered, * after having taken an oath that she would testify truly, she willfully, falsely, and contrary to such oath, corruptly and feloniously swore and testified to said false and material facts as aforesaid." It was held that the indictment did not state facts sufficient to constitute a public offense, and that it was not in fact stated that the assessor or any other person did in fact administer an oath to her. In the opinion it is said: "In an indictment for perjury it must appear that the defendant was sworn, and that the person who administered the oath to him had authority therefor." In U. S. v. McConaughy (D. C.) 33 Fed. 168, the indictment alleged that defendant did "depose and swear," and that "said oath, taken as aforesaid, was then and there duly administered." The court sustained a demurrer to the indictment, and in the opinion said: "In an indictment for perjury it must be directly stated in some form of apt words that the defendant was

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sworn. It is not sufficient that it appears by inference or argument. may swear who is not duly sworn. case the oath, so to speak, is self-imposed, and the swearer incurs no legal liability thereby, while in the other the oath is administered by a person having authority so to do, and the affiant takes it subject to the pains and penalties for perjury." In the case of State v. Divoll, 44 N. H. 142, the authorities and precedents are fully examined and stated, and it is said: "That the party was sworn must be alleged distinctly and positively. It is not enough to state it argumentatively, or to make such a statement as by inference implies that a party was sworn, however strong this implication may be." It follows that the order should be affirmed.

BURFORD, C. J. The plaintiff in error was convicted in the district court of Noble county for the crime of burglary in the second degree, and sentenced to serve a term of five years in the penitentiary. The judgment and sentence were entered on December 30, 1899. No brief has been filed, and we are not advised what the plaintiff in error complains of, or relies upon for a reversal. In cases of this kind we do not consider it the duty of this court to go into a careful examination of the evidence, to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the indictment, the instructions of the court, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment. The judgment of the district court of Noble county is in all things affirmed, at the costs of the plaintiff in error. All the justices concur, except HAINER, J., who tried the cause below, not sitting.

(11 Okt. 184) UNION CENT. LIFE INS. CO. v. CHAMPLIN et al. (Supreme Court of Oklahoma. July 6, 1901.) CONTRACTS-PUBLIC POLICY-PROVISION IN

NOTE.

1. Any stipulation, agreement, or contract which forbids the debtor from discharging his obligation by borrowing money, in whole or in part, except from the creditor, is subversive of the rights of the citizen, injurious to the general welfare of the public, and is therefore void on the high ground of public policy.

2. Hence the provision or stipulation contained in the note sued on in this action, to the effect that the right of the maker to make payment at any time is waived, providing the money tendered is borrowed in whole or in part elsewhere, is contrary to public policy, and is therefore void.

(Syllabus by the Court.)

Error from district court, Logan county; before Justice John H. Burford.

Action by E. R. Champlin and Grace A. Staples against the Union Central Life Insurance Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

This was an action brought by Edward R. Champlin and Grace A. Staples against the Union Central Life Insurance Company, a corporation, to release and discharge a certain note and real-estate mortgage upon a certain tract of land in Logan county, Okl., and to quiet the title thereto. On March 14, 1898, one Oscar R. Champlin conveyed by warranty deed a certain tract of land situated in Logan county to Edward R. Champlin and Grace A. Staples, defendants in error, plaintiffs in the court below. It appears from this deed that the defendants in error assumed and agreed to pay a certain note executed by said Oscar R. Champlin to the Union Central Life Insurance Company, plaintiff in error, and defendant in the court below, on the 1st day of March, 1898, a copy of which is as follows: "$350.00. Guthrie, Oklahoma Territory, March 1, 1898. Ten years after date, for value received, we promise to pay to the order of the Union Central Life Insurance Company of Cincinnati, O., three hundred and fifty and no/100 ($350.00) dollars, at the home office of said company, in Cincinnati, Ohio, with interest at the rate of ten per centum per annum from date until maturity, and twelve per centum per annum after maturity, until paid, payable annually on November first of each year, excepting the last installment, which shall be due and payable with the principal. If this note is sent to Guthrie National Bank, at Guthrie, Oklahoma Territory, or to any other bank, for collection, we agree to pay exchange and collection expenses, and this note shall not be deemed paid until the funds are actually transmitted to and received by payee. Interest coupons are hereto attached, representing the interest from date to maturity, which, with this principal note, are secured by a mortgage deed of even date herewith. If any installment of interest is not paid at maturity, this principal

note and all interest due thereon shall become due and payable at once, at the option of the holder of this note; notice of such option being hereby waived. This note is executed upon the condition that partial payments in any amount at any time after one year will be received at the home office of said company, in Cincinnati, Ohio, and that the interest will be rebated from the date of such payments, provided each matured interest note has been paid on or before maturity. This condition is waived, provided the maker's total indebtedness is not being reduced, or providing the money tendered is borrowed in whole or in part, elsewhere. Oscar R. Champlin. Postoffice address: " To secure the payment of the said note the said Oscar R. Champlin executed to the Union Central Life Insurance Company a certain real-estate mortgage upon the land subsequently deeded to the defendants in error. On July 24, 1899, the defendants in error made a tender of the full amount due on the note and mortgage, together with the interest which had accrued from date to that time, to the plaintiff in error, which tender the said plaintiff in error refused to accept unless the defendants in error made an affidavit that the money which was tendered for such payment had not been borrowed in whole or in part elsewhere, which affidavit the defendants in error refused to make. This action was then brought to have said mortgage released and discharged of record, and defendants in error tendered in court the full amount of the indebtedness. To the petition of the plaintiffs the defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action. The court overruled the demurrer to the petition, and the defendant, having elected to stand upon said demurrer, declined to plead further, and judgment was entered in favor of the plaintiffs. From this judgment the defendant appeals.

J. C. Strang and Chas. H. Wood, for plaintiff in error. Dale & Bierer, for defendants in error.

HAINER, J. (after stating the facts). The only question involved in this case is the validity of that provision of the note which provides that the right to make payment of said note at any time is waived if the money tendered is borrowed, in whole or in part, elsewhere. It is contended by the appellant that this provision in the note is a valid and binding agreement on the mortgagor, and that the court erred in holding said agreement to be void for being contrary to public policy. The record in this case shows that the debtor tendered to the creditor the full amount of the principal and interest that was due upon his obligation, and the sole objection made by the creditor for not receiving the amount tendered was because the debtor had refused to make an affidavit that he did not borrow the money, in whole or in

part, elsewhere. We think it is clear that the creditor has no right to impose such a condition upon the debtor. It is sufficient if the debtor tendered the amount of money that was due. It is true that a creditor has a right to stipulate in a contract any particular kind of money to discharge an indebtedness, for instance, as gold coin of a certain weight and fineness; but he has no power to stipulate the source from whence the money is obtained to discharge the debt. It could not affect the rights of the creditor if the debtor borrowed the money elsewhere, unless it was intended by the creditor to compel the debtor to borrow from the creditor in the event he desired to discharge the debt. To uphold such an agreement would be equivalent to holding that the debtor must borrow from the creditor, and not elsewhere, if he desires to discharge the indebtedness before the loan matures. Mr. Story, in his work on Conflict of Laws (section 546), after reviewing the authorities, deduces the following rule: "Public policy is in its nature so uncertain and fluctuating, varying with the habits and fashions of the day, with the growth of commerce and the usages of trade, that it is difficult to determine its limits with any degree of exactness. It has never been defined by the courts, but has been let loose and free from definition in the same manner as fraud. This rule may, however, be safely laid down: That whenever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void, as being against public policy." Mr. Greenhood, in his work on Public Policy, says: "By 'public policy' is intended that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law, or public policy in relation to the administration of the law. The strength of every contract lies in the power of the promisee to appeal to the courts of public justice for redress for its violation. The administration of justice is maintained at public expense. The courts will never, therefore, recognize any transaction which, in its object, operation, or tendency, is calculated to be prejudicial to the public welfare." In 15 Am. & Eng. Enc. Law (2d Ed.) p. 934, the rule is thus stated: "Where a contract belongs to a class which is reprobated by public policy, it will be declared illegal, though in that particular instance no actual injury may have resulted to the public, as the test is the evil tendency of the contract, and not its actual result." The principle deducible from the authorities is that any stipulation, agreement, or contract which forbids the debtor from discharging his obligation by borrowing money, in whole or in part, except from the creditor, is subversive of the rights of the individual, injurious to the public at large, and is therefore void on the high ground of public policy. We therefore hold

that the stipulation in the note sued on in this action, which forbids the maker from discharging his obligation by tendering to the payee money which was borrowed, in whole or in part, elsewhere, is in clear contravention of public policy, and is therefore null and void. For the reasons herein stated, the judgment of the district court is affirmed, at the costs of the plaintiff in error. All the justices concurring, except BURFORD, C. J., who presided in the court below, not sitting.

(11 Okl. 156)

HARVEY v. TERRITORY. (Supreme Court of Oklahoma. July 6, 1901.) SEDUCTION-CHARACTER OF PROSECUTRIXEVIDENCE-VENUE - JUDICIAL NOTICE - REVIEW-NEW TRIAL-CUMULATIVE EVIDENCE. 1. Under the statutes of Oklahoma, the previous chaste character of the prosecutrix in a prosecution for seduction is a material element of the offense, and must be alleged and proven by the territory. The usual presumption of chastity in favor of a female does not prevail in a charge for seduction under promise of marriage.

2. "Upon a trial for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured, unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense." St. 1893, § 5211. this statute the female is only required to be corroborated as to the promise of marriage, and the illicit intercourse, and not as to being unmarried, or of previous chaste character.

Under

3. Venue need not be proven by direct and positive testimony, but may be shown by such facts and circumstances as will support a reasonable and rational inference as to where the alleged act was committed.

4. The courts will take judicial notice of the boundaries of the counties and the territory, and of the geographical location of cities and towns within its jurisdiction, and the court judicially knows that a place about eight miles southeast of Lexington is in Cleveland county, Okl.

5. This court will not disturb the verdict of a

jury upon a controverted question of fact, where there is ample testimony both for and against the fact at issue.

6. The actions, conduct, promises, attentions, and letters of the accused to and towards the prosecutrix after the date of the alleged seduction are competent to be shown in evidence in actions for seduction, for the purpose of corroborating the testimony of the prosecutrix as to the promise of marriage.

7. It is not error to permit the father of the prosecutrix in a prosecution for seduction to testify that the prisoner asked him for the prosecutrix at a time subsequent to the alleged illicit intercourse. Such evidence is competent for the purpose of corroborating the female as to the previous promise of marriage.

8. The female in a prosecution for seduction is not required to be corroborated by direct and positive proof of facts independent of her testimony, but only as to such facts and circumstances as usually form the concomitants of the main fact sought to be established, which facts should be sufliciently strong within themselves, and pertinent in their bearing on the case, to satisfy the jury of the truthfulness of the prosecutrix in her evidence on the principal facts. 9. It is not reversible error to overrule a motion for new trial based upon newly-discovered