has no general power, as such, to maintain an action to enforce a trust in lands or compel a conveyance of the title to the property to himself, and that the statute does not confer upon him any such authority. That was an action brought by the heirs, and it was objected that it should have been brought in the name of the administrator. It is there said: "The present action is brought to establish a trust, and to compel defendant to convey the legal title to real estate to the heirs at law of Janes. On his death his title, then an equity, passed to the heirs, as was held in the cases last cited; and unless it can be maintained, which we think cannot be done, that the administrator is entitled under our statute to have the title to the property conveyed to him, it would seem clear that he is not the proper party to bring this action." If the action be regarded as one brought under section 1589, supra, to set aside a fraudulent conveyance and convert the property into assets of the estate, and subject it to the payment of the creditors of the deceased,-and that such is its intended character and purpose is practically conceded by respondent,-then the complaint is fatally defective for want of facts, and the demurrer should have been sustained on that ground. Section 1589 is as follows: "When there is a deficiency of assets in the hands of an executor or administrator, and when the decedent, in his lifetime, has conveyed any real estate, or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed, and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance." The obvious intent and meaning of this section is that two things must concur to authorize the administrator to commence an action to set aside a deed of his intestate as void against creditors: First, there must exist creditors to be paid; and, second, there must be an insufficiency of assets in the hands of the administrator to meet their demands. Both of these facts must coexist to bring the case within the limitations of the statute. Ohm v. Superior Court, 85 Cal. 545, 26 Pac. 244. If there are no creditors, or, there being creditors, the administrator has sufficient assets of the estate in his hands to meet their demands, in either case he is without power to maintain the action.

The only allegation in the complaint as to the existence of creditors of the deceased

is: "That the time within which claims against the estate of the said Jose Maria Andrada, deceased, can be presented by creditors thereof has not yet expired; that as the plaintiff is informed and believes, and therefore alleges the fact to be, there are creditors of the said Jose Maria Andrada, deceased, who have claims against his estate, but which have not as yet been presented, and who are entitled to present the same, the names of which said creditors and the amounts of said claims are now here by the said plaintiff unknown, and he is unable, therefore, to allege specifically the names of said creditors, or the amounts of said indebtedness." It is held in Ohm V. Superior Court, supra, that, to constitute a "creditor," within the meaning of the statute, "he must be a creditor whose claim has been allowed by the administrator or is evidenced by a judgment,"-citing Mesmer v. Jenkins, 61 Cal. 153; McMinn v. Whelan, 27 Cal. 300. And in Michigan, under a statute similar to our own, it is held that, until the estate has been charged with claims by allowance or judgment, "there is no basis for a bill against a decedent's fraudulent conveyance in order to recover means to pay them.” O'Connor v. Boylan, 49 Mich. 209, 13 N. W. 519. To the same effect are the cases of Fletcher v. Holmes, 40 Me. 364, and Estes v. Wilcox, 67 N. Y. 264. Within these principles, this averment does not bring the case within the statute. To the contrary, the matter averred shows that there did not at the commencement of the action exist, within the restricted meaning of the statute, any creditors of the deceased, since it is made affirmatively to appear that no claims had been presented against the estate. It is not an instance of the mere defective statement of a requisite fact, but a statement from which it appears that the fact essential to recovery does not exist.

Nor does it appear from the complaint that there is an insufficiency of assets in the hands of the administrator. The language of the pleading in that regard is: "That immediately upon the death of the said Jose Maria Andrada, deceased, the said defendant Manuel Andrada, and one Marco Andrada also, took possession of all the personal property belonging to the said decedent, and ever since have claimed, and now are claiming, the whole of said personal property, and are in possession thereof. And said defendan Manuel Andrada and the said Marco Andrada claim said property as their own property, and a suit for the recovery thereof is now pending between the plaintiff herein against the said defendant Manuel Andrada and Marco Andrada, in the superior court of the county of Los Angeles, being case No. 17,632 of the files of said superior court, which suit is as yet undetermined. That the said Jose Maria Andrada at the time of his death did not own or possess any other property, real or per

sonal, whatever, or at all, other than the said real property herein before described, and the said personal property aforesaid." From this averment it simply appears that the personal property of the estate has been taken by mere trespassers having no right thereto, and which it is bound to be presumed the administrator, in the performance of his duty, will recover to the estate. For the purposes of this action, therefore, it is to be regarded as in his hands. It is not made to appear what the amount or value of that property is, and non constat that it will not be amply sufficient to meet the demands of all creditors of the estate. The facts alleged are not in any essential the equivalent of the substantive fact required by the statute to sustain the action. The respondent contends, in effect, that, while the facts adverted to are perhaps defectively stated, they are sufficiently alleged to avoid a general demurrer, and to authorize the trial court to receive evidence of them. With this contention we do not agree, for the reasons stated. But, if respondent were correct in this view, his position would not be bettered. These features of the complaint were also attacked specially upon the ground of uncertainty, and the demurrer upon that ground would necessarily have to be sustained. The objection that the special demurrer is obnoxious to the doctrine of Kraner v. Halsey, 82 Cal. 209, 22 Pac. 1137, and for that reason cannot be considered, is not well taken. While there is in the demurrer a general and conjunctive assignment of ambiguity, unintelligibility, and uncertainty, the only specifications are on the ground of uncertainty; and, properly construed, we think the demurrer should be regarded only as a demurrer on the latter ground. The judgment is reversed, and the cause remanded, with directions to the lower court to sustain the demurrer.

We concur: HARRISON, J.; GAROUTTE, J.; MCFARLAND, J.

(106 Cal, 104)

PEOPLE v. O'BRIEN. (No. 20,999.) (Supreme Court of California. Feb. 15, 1895.) CRIMINAL LAW-PRESUMPTION OF INNOCENCE-EM

BEZZLEMENT.

1. The presumption of innocence does not cease upon the submission of the cause to the jury.

2. The prosecution in an action for embezzlement cannot introduce evidence in chief that the prosecuting witness has money on deposit, in order to strengthen her testimony.

3. Where defendant was an attorney at law, and the prosecuting witness was, as to some matters, his client, the relation of employer and employé existed; but where a variety of dealings extended over a number of years, and there was a long, unsettled, and disputed account between them, with no evidence

that defendant attempted to steal or convert the property clandestinely and feloniously, a case of disputed mutual account is presented, for which a civil action is the appropriate remedy.

In bank. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by the people against O'Brien. From judgment for plaintiff, defendant appeals. Reversed.

D. J. Toohy, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. The defendant was convicted of the crime of embezzlement, and appeals from the judgment and from an order denying his motion for a new trial. There were undoubtedly some errors of law committed at the trial. For instance, the court instructed the jury that the presumption of innocence goes with the defendant "until the case is finally submitted, to you." This was error. "The presumption of innocence does not cease upon the submission of the cause to the jury." People v. McNamara, 94 Cal. 514, 29 Pac. 953. It was also error to allow the respondents, when putting in their evidence in chief, to show that the prosecuting witness had certain money on deposit, in order to strengthen or bolster her testimony in anticipation of what they supposed appellant's evidence might be. There were one or two other errors not necessary to mention. Whether any of these errors was of sufficient importance to warrant a reversal we need not determine, under the views which we take of the case.

We cannot find in the record sufficient evidence to sustain a conviction of the crime charged. Counsel for the people invoke the rule applicable to conflicting evidence, but the conflicting evidence was as to facts which, if taken as proven, do not make out a case of embezzlement. The modern statutory crime of embezzlement, which did not exist at common law, is not a substitute for imprisonment for debt,. and cannot be used to punish a party for a failure to comply with an ordinary pecuniary obligation. It can be committed only when the confidential relation of employer and employé exists, and where the latter has feloniously converted money or other property of the former which come into the hands of the employé by virtue of said confidential relation. It is true that in the case at bar the appellant is an attorney at law, and the prosecuting witness (a woman) was, as to some matters, his client, and therefore there was as to those matters the relation between them above mentioned; but there was a variety of dealings between them, running through several years, and a long, unsettled, and disputed account. There was conflicting evidence as to how the account stood, each party claiming a balance due; but it is clear that

there was no concealment on the part of appellant as to any of his dealings with the prosecuting witness, and we discover no evidence tending to show an intent to steal or to convert her property clandestinely and feloniously. The specific charge in the information is that appellant embezzled a certain sum of $1,000, which she had intrusted him with. Her own testimony does not support that charge, for she swears only that she left with him a certain note and mortgage for $1,000, which he had not returned to her. She did not know whether or not he had collected the amount due on the mortgage. Perhaps it appears from appellant's own testimony that he had received the amount due on the mortgage, but the facts about the mortgage, as fairly resulting from that evidence, appear to be these: Appellant had a subsequent lien on the mortgaged premises, and, desiring to prevent a foreclosure, applied to the prosecuting witness to advance sufficient money to buy the mortgage. She advanced $700, and other parties raised the balance of the $1,000, and the note and mortgage were delivered to appellant, either by her or with her consent. Appellant afterwards loaned to or paid her some money, and also invested for her $900 in certain land in Alameda county. She denies that appellant had authority to make said investment for her in Alameda, and there is a conflict of evidence as to the genuineness of a certain power of attorney from her to him, giving such authority; but it is beyond dispute, and admitted, that he took the deed of the Alameda land in her name, that he sent the deed to her, that she retained it, and that she afterwards sold the land and realized from it about $800. All this was done by appellant openly; and, indeed, in all his transactions with the prosecuting witness there was no attempt by him at concealment. He loaned her money at times; and he did considerable business for her as an attorney at law in various matters for which he seems not to have been paid, and for which he claims an indebtedness from her. All these transactions, taken together, present merely a case of disputed mutual accounts, for which a civil action is the appropriate remedy. They do not show that felonious intent which is a necessary element in the crime of embezzlement. Indeed, the prosecuting witness herself seems to have understood this prosecution to be in the nature of a civil action. She was asked, "Did you ever ask Mr. Baggett to bring suit for the recovery of this money?" and she replied: "I did. I don't know but this is a suit to recover this money." The judgment and order denying appellant's motion for a new trial are reversed.

We concur: BEATTY, C. J.; GAROUTTE, J.; VAN FLEET, J.; HARRISON, J.

CONTESTED ELECTION-BALLOTS AS EVIDENCE. In a contested election case, where the number of votes cast for plaintiff and defendant, respectively, is in issue, the ballots furnish the primary and controlling evidence.

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by Henry Schneider against C. E. Bray to contest defendant's election to the office of county commissioner. From a judgment entered on an order dismissing the action, plaintiff appeals. Reversed.

Alfred Chartz, for appellant. Torreyson & Summerfield, for respondent.

BONNIFIELD, J. Henry Schneider and C. E. Bray were candidates at the last general election for short-term county commissioner of Ormsby county. Upon the county commissioners of said county making an abstract of the votes, it appeared that the defendant had the highest number of votes cast for said office, and he received a certificate of election therefor. This action was brought in the district court of Ormsby county to contest the election of the defendant, on the ground of malconduct on the part of the board of inspectors, or members thereof, of election precinct No. 2. Such malconduct is alleged, in the plaintiff's statement or com

plaint, to consist "in calling and counting votes for and in behalf of said C. E. Bray which were in reality cast and should have been called and counted for and in behalf of the plaintiff, and the said board have otherwise failed to count votes cast for and in behalf of said plaintiff, which all of said votes, if correctly called and counted, would have been sufficient in number to elect said plaintiff, Henry Schneider, to said office of county commissioner." The defendant, by his answer, denies each of the above allegations in the complaint. The defendant moved the court below to quash the statement or complaint of the plaintiff, on the ground, among others, that it "does not state facts sufficient to warrant the court in hearing any testimony or considering the same." The motion was denied by the court. The plaintiff, to maintain the issues on his part, of fered to introduce in evidence the ballots cast at election precinct No. 2, and asked to have them counted. The defendant objected to the introduction of the ballots, "on the ground that the same are incompetent, immaterial, and irrelevant, and not tending to prove any issue in the proceeding." The court refused to admit the ballots in evidence, on the ground that they are "utterly immaterial," and ruled that the plaintiff "must first prove that ballots were called and counted for Bray which should have been called and counted for Schneider." The

plaintiff, by his attorney, stated to the court: "We have no such evidence, except the ballots themselves, which we now offer for that purpose." The court thereupon ordered the action dismissed, at plaintiff's costs. This appeal is taken "from the judgment therein made and entered, and ruling excluding evi, dence offered by plaintiff, and order dismiss ing the action"; and this ruling and order are assigned as error. That the ballots had not been tampered with, but remained the same as they were when cast, we understand, is not disputed. No suggestion was made to the contrary in the court below, and none has been made in this court.

If the members of the board of inspectors had been examined as witnesses as to whether any ballots cast for Schneider had been called and counted for Bray, they would have, doubtless, testified that the pallots were counted as they were cast, and they would have properly so testified if they were not conscious of making any mistake in the calling and counting, and still an erroneous canvass of the votes might have occurred to the extent of changing the result of the election. While such testimony would be good and satisfactory evidence of the honesty of their intention, it would not be conclusive that the alleged errors in calling and counting had not been committed. The evidence offered by the plaintiff was not to prove the quality of the inspectors' intention, but to establish his alleged facts. Upon the authority of the Kneass Case, 2 Pars. Eq. Cas. 553, cited in respondent's brief, the voters themselves could not have been compelled to disclose for whom they voted, even if their testimony was competent, and the plaintiff had resorted to that character of proof. The court ruled to the effect that it was proper for the plaintiff to prove that "ballots were called and counted for Bray which should have been called and counted for Schneider," but that he must do this before he would be permitted to introduce the ballots which the plaintiff had offered for the purpose of proving these alleged facts. If such proof had been made aliunde, a resort to the ballots would not have been necessary or material. The public interests imperatively require that the ultimate determination of such contest should in every instance, if possible, reach the very right of the case. It is the wholesome practice of the statute to invite inquiry into the conduct of popular elections. Its aim is to secure that fair expression of the popular will in the selection of public officers, without which we can scarcely hope to maintain the integrity of our political system. Minor v. Kidder, 43 Cal. 236; Lord v. Dunster, 79 Cal. 478, 21 Pac. 865. The true result of the election is the object to be sought. The returns of the inspectors of election are prima facie true, but, when the returns are impeached, the ballots are the primary and controlling evidence of the true result.

In the case at bar oral testimony would not have been competent to either prove or disprove the correctness of the canvass of the election inspectors, if such had been offered. That the court below erred in ruling out the ballots offered in evidence by the plaintiff is clear, not only upon reason and from the ordinary rules of evidence that the best evidence of the contents of a writing is the writing itself, but from the authority of the decided cases. That the ballots are the primary and controlling evidence in all cases of election contests based on the ground of alleged errors in the count made by the election officers charged with the duty of canvassing the votes, we are of opinion, is well settled. In the case of People v. Holden, 28 Cal. 123, the court say: "In an action brought in the district court to try the right to an office, the list of ballots cast in any precinct, and returned with the poll list and tally paper to the county clerk, is better evidence of the number of votes cast at the precinct, and for whom cast, than the tally list made from them by the officers of the election." In the case of Coglan v. Beard, 65 Cal. 58, 2 Pac. 737, the court adheres to the rule laid down in 28 Cal., supra. In Hudson v. Solomon, 19 Kan. 177, the court refer to the case in 28 Cal. with approval, and say: "(1) As between the ballots cast at an election and a canvass of the ballots by the election officers, the former are the primary and controlling evidence. (2) In order to continue the ballots controlling evidence, It must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that, while in such custody, they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with." In State v. Owens, 63 Tex. 261, and Owens v. State, 64 Tex. 500, the court maintain the same rule. In Dorey v. Lynn, 31 Kan. 758, 3 Pac. 557, the court say: "In an action in the nature of quo warranto to determine which of two persons is entitled to a certain office, the ballots cast at the election, where they can be properly identified, are the best evidence, and much better and more reliable than the mere abstract or summary of the same made by the election officers." The court in Searle v. Clark, 34 Kan. 49, 7 Pac. 630, approve the rule in 31 Kan, and 3 Pac., supra. The supreme court of Alabama, in State v. Judge of Ninth Judicial Circuit, 13 Ala. 805, decided that "the ballots or votes themselves are higher evidence of the number of votes cast than the certified lists of votes sent by the managers at each precinct to the managers at the courthouse; and, if either party received more votes than were counted for him, the circuit judge should correct the mistake, and count the votes." In Kingery v. Berry, 94 Ill. 515, the court say: "When we have before us the very ballots that were cast by the voters, as between