tion, it is not permissible to prove that the defendant has committed crimes other than that with which he is charged. People v. Gray, 66 Cal. 271, 5 Pac. 240; People v. Barnes, 48 Cal. 551; People v. Hartman, 62 Cal. 562; People v. McNutt, 64 Cal. 116, 28 Pac. 64. There are exceptions to the rule stated, which arise in cases where the intent or guilty knowledge is an element to be established, as in the case of uttering forged bills, etc., but they in no wise alter the general rule. Another exception to the rule is said to be that where two persons are killed at the same time and place, and apparently in the same transaction, or approximately so, evidence as to the circumstances of the killing of one is admissible on the trial under an indictment for the killing of the other. Brown v. Com., 76 Pa. St. 319; Com. v. Ferrigan, 44 Pa. St. 386; Fernandez v. State, 4 Tex. App. 419; Heath's Case. 1 Rob. (Va.) 735; People v. Foley, 64 Mich. 148, 31 N. W. 94; People v. Rogers, 71 Cal. 565, 12 Pac. 679; People v. McGilver, 67 Cal. 55, 7 Pac. 49; People v. Walters, 98 Cal. 141, 32 Pac. S64. We have no doubt of the soundness of the exception last mentioned. There was, however, in the present case, a more cogent reason for the introduction of the proffered testimony. Dolph and Charlie were living in the same house, in apparently an isolated place, and were left there by defendant alive and well, according to his statement. Under these circumstances, it might have appeared quite probable to the jury that Charlie, and not the defendant, it was who killed Dolph, and threw his body in the river. This was met by showing that Charlie, too, was killed, and his body also placed in the stream. Conceding this to be true, Charlie might still have killed his partner, and then committed suicide. This last theory was met by showing that Charlie was shot at the house, one-half of his head blown off, a part of his skull and one lobe of his brain being found there; thus showing that his death occurred at that point, and hence that he could not have gone to the river, where the body was found. In this point of view the evidence was highly important, and eminently proper. It should also be remarked that the evidence went to show that Charlie was killed, and not that defendant killed him.

Defendant offered himself as a witness, on his own behalf, and, on cross-examination, was interrogated in regard to the articles found in his possession when arrested at Collinsville. This was proper. On his direct examination he had testified explicitly that all the stuff he took upon leaving the house was his; that the bed was his, the tent, the gold and silver watches, etc., and that he was particular to take nothing that was not his own; and that, when he left, the boys' (Charlie's and Dolph's) things were in the house. In response to this it was legitimate cross-examination to ask him any questions tending to show that the articles, or some of

CIENCY RUNNING OF LIMITATIONS-FRAUD.

1. An inquiry by an administratrix, at the offices of a corporation, as to whether all dividends on stock owned by decedent had been paid, which is answered affirmatively, is a sufficient demand for such dividends to put in operation the statute of limitations against a claim for all dividends then due decedent. Garoutte, J., dissenting.

2. An administratrix, in 1879, inquired at the office of a corporation in which decedent held stock, as to whether all dividends due decedent had been paid him, and was told that they had all been paid to A., decedent's agent. Without making further inquiry from the corporation or the agent, she and her successor administered the estate, and the estate was settled without reference to such dividends. An assignee of the next of kin's interest sued in 1886 to recover dividends due decedent, averring that he was not informed till 1885 that there were dividends due. Held, that the running of limitations was not suspended under Code Civ. Proc. § 338, subd. 4. providing that a cause of action for fraud shall not be deemed to have accrued till the discovery of the fraud by the aggrieved party. Garoutte, J., dissenting.

In bank. Appeal from superior court, city and county of San Francisco, J. C. B. Hebbard, Judge.

Action by Albert V. Bills against the Silver King Mining Company and others to recover dividends. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

James L. Crittenden and James P. Bowie, for appellant. Garber, Boalt & Bishop and F. A. Berlin, for respondents.

MCFARLAND, J. The court below sustained a demurrer to the complaint, and, plaintiff declining to further amend, judgment went for defendants. Plaintiff appealed.

The court below correctly sustained the demurrer, and gave judgment for defendants. The demurrer was upon various grounds,among others, that the complaint does not state facts sufficient to constitute a cause of action, that the action is barred by several sections of the Code about the limitations of actions, and that the plaintiff is shown to

have been guilty of laches. The material averments of the complaint, which are made upon information and belief, are these: The defendant the Silver King Mining Company is a corporation, and during the years 1877, 1878, and 1879 one Benjamin W. Reagan was the owner of a large portion of the shares of the capital stock of said corporation, which were represented by a certificate in due form, No. 72, issued to one J. W. Anderson, who was the agent of said Reagan for the purpose of holding said shares, and collecting the dividends thereon. It was averred that between the 24th day of October, 1877, and the 30th day of June, 1879, the said corporation regularly declared dividends on its stock, and that upon said dividends "there became and was due and payable from said defendant the Silver King Mining Company to said J. W. Anderson, trustee, as agent of said Benjamin W. Reagan, on the shares of stock represented by said certificate No. 72," the sum of $224,932.50. Said Reagan died intestate on the 26th day of July, 1879, and his widow, Mary A. Reagan, was duly appointed as administratrix. She entered upon said office of administratrix on the 10th of September, 1879, and continued to be such administratrix until the 7th of November, 1882, when she resigned, and one Joseph Nash was then duly appointed administrator, and remained such until the 6th of March, 1884, when there was a final decree of distribution of the estate, and a closing of the administration. It was averred that, at periods before and after the said decree, plaintiff herein, who married the said widow, took an assignment from all the heirs and distributees of their interest in the property of said estate. It is further alleged that said administratrix, Mary A. Reagan, on or about the 10th day of September, 1879, "applied to the defendant corporation and its officers in the city and county of San Francisco for information as to said shares of stock, and as to whether any dividend which had been declared thereon prior to the death of said Reagan, or any part of such dividend, was unpaid, and as to whether any money was due from said defendant corporation to said estate, or to her as administratrix, for or on account of any dividend or dividends declared by said defendant corporation prior to the death of said Benjamin W. Reagan," and that the said corporation and its officers, for the purpose of defrauding said administratrix at said time, stated to said administratrix "that all dividends due on said shares of stock had been paid to said J. W. Anderson, and that no money was due or owing or unpaid on account of any dividends declared on said shares of stock during the lifetime of said Benjamin W. Reagan." It is further averred that said administratrix believed said statements as to said dividends. It does not appear that said administratrix, or her successor, the said Nash, or any other person interested in the estate, ever made any further effort to discover

any facts with respect to said alleged dividends. No demand was made for an inspection of the books or papers of said corporation, and no effort was made to discover from said J. W. Anderson whether or not it was true that such dividends had been paid to him. Said dividends were not included in the inventory of said estate, as property thereof, and said estate was distributed and closed without any reference to said alleged dividends. No reason is shown why inquiries were not made about said dividends of the said Anderson, the only averment in that respect being simply that he was absent from the state at the time of the death of said Reagan. There is no averment of any conspiracy between said corporation and the defendant Anderson to conceal any facts about said dividends, and no misconduct whatever is charged against said Anderson. It is merely averred that Anderson refused to bring this suit, and that, therefore, he is made a party defendant; there being also an aver ment, "on belief," that he asserts some right over said dividends. It is further averred that on the 10th of January, 1885, the person who afterwards became the attorney of record of plaintiff in this present action informed plaintiff that said dividends had not been paid, and that this was the first information plaintiff had of that fact. This action was commenced, as appears by an amendment to the record, on the 27th day of April, 1886. The complaint contains nine counts, each on a separate dividend alleged to have been declared as aforesaid during the said period above mentioned; and judgment is demanded for the said sum of $224,932.50, with interest. It is further averred that on January 10, 1885, the said Mary A. Bills (formerly Mary A. Reagan) demanded of said corporation the payment to her of said dividends, and that on or about the 10th of January, 1885, the said plaintiff demanded of said corporation the payment to him of said dividends, and also made the same demand on the 6th of January, 1886, and that the defendant corporation wholly refused to comply with any of said demands.

The action was clearly barred by the statute of limitations. If the alleged liability sued on is to be considered as one founded upon an instrument in writing, it is barred by section 337 of the Code of Civil Procedure. If it be not an obligation founded upon an instrument in writing, it is barred by section 339 of said Code. And, under any view of the liability, it is barred by section 343. Appellant contends that an action cannot be maintained for a dividend declared by a corporation until a demand shall have been made for the same, and that, therefore, the statute of limitations did not commence to run in the case at bar until the time in 1885 or 1886 when the said demands last above stated were made. There is some conflict of authority upon the point whether such a dividend is a debt owing by the corporation to

the holder of the shares, or mere property of the shareholder rightfully in possession of the corporation, and therefore a conflict as to whether a demand is necessary before suit. But in any event no particular form of demand is necessary; and therefore, waiving for the present the point above suggested, it is clear that what occurred between the administratrix and the corporation in 1879, as hereinbefore stated, amounted in law to a demand for the dividends. She was informed at that time by the corporation that there was no money due or owing or unpaid on account of said dividends; and it was a clear refusal of her request for the payment of said dividends, and a denial of any liability of the corporation thereon. The corporation then and there put itself in a state of hostility to the estate of said Reagan with respect to any alleged obligation in the matter of said dividends, and no further demand or refusal was necessary; and, if suit had been brought against it, want of demand would not have been a defense. Appellant contends, however, that he is entitled to relief on the ground of fraud, and that under subdivision 4 of section 338, Code Civ. Proc., the cause of action did not accrue until what he contends to be the discovery of the facts constituting the fraud in 1885. But waiving the question whether the averments of facts constituting the fraud in the complaint are specific enough, or whether such averments are sufficient if made only upon information and belief, still the statute of limitations cannot be avoided in a case where the facts are sufficient to put a person of ordinary intelligence and prudence on inquiry as to the truth. And in the case at bar the administratrix, Mary A. Reagan, was certainly guilty of the grossest laches in not making any effort to discover what she now alleges to be the real facts with respect to the dividends. She was informed that this large sum of money, amounting to nearly a quarter of a million, had been paid to Anderson, whom she avers to have been the agent of her deceased husband, yet she never made any inquiry of the said Anderson as to the truth of the statement that this large amount of money had been paid to him; and she went on to administer the estate, and, without any allusion to said large sum of money, she and her successor as administrator, and all interested in the estate, allowed it to be settled and finally distributed without any reference whatever to said dividends. Under these circumstances, the plaintiff in this case cannot be heard to say that his assignors were deceived for so many years by an alleged false statement of the defendant corporation, which, if false, could have been disproved so easily by the use of the slightest diligence. The foregoing views render it unnecessary to consider other points made by respondents,-as, for instance, that Anderson, being the holder of the certificate, could alone sue on it, and that the plaintiff is not the proper person to maintain an action

BEATTY, C. J. I concur in the judgment of affirmance. The substance of the complaint is that between November, 1877, and October, 1878, the corporation defendant declared large dividends, of which $225,000, in round numbers, were payable to Reagan or his trustee, Anderson, in whose name Reagan's stock stood; that no part of these dividends has been paid; and that the plaintiff, Bills, has succeeded to the right to demand and sue for the same. Much of the voluminous matter contained in the complaint consists of a deraignment of plaintiff's title, and another large portion consists of excuses for the long delay in making demand and commencing the action. Excluding these matters, the cause of action is merely the refusal of the corporation to pay to its stockholder his share of declared dividends. This is a simple action at law, to which the defense of the statute of limitations is as clearly applicable as to any other, and it is barred in two years after it accrues. Code Civ. Proc. 339. I concede that a preliminary demand of payment is necessary to perfect the right of action, and that if such demand is made within a reasonable time the statute does not begin to run until after demand and refusal to pay. But the stockholder cannot defeat the policy of the statute by unreasonable delay in making his demand. The policy of the statute is to prevent suits upon stale claims, and to exempt the debtor from the necessity of proving payment after the means of proof have been lost or impaired. If a creditor, in cases like this, could sue 10 or 20 or any number of years after his claim accrued, and maintain his action, upon the simple allegation that he had never demanded pay until at a date within the period of limitations, the debtor would never be secure, because the issue of payment could always be litigated by simply adding the other issue, failure to demand. For this reason it has been held in a great number of instances, and is undoubtedly the law, that the creditor, in cases of this character, must make his demand within a reasonable time after the money is received to his use. As to what is a reasonable time is ordinarily determined by the analogy of the statutory periods of limitation. If the cause of action is barred by the lapse of two years after it becomes com

plete, then the demand must be made within two years after the right to make it accrues, or a valid excuse must be shown for the failure to make it within that time. Now in this case Mrs. Bills (then Mrs. Reagan, and administratrix of Reagan's estate) knew of these dividends as early as September, 1879, and inquired of the corporation, through some of its trustees, if they had been paid. She was informed that they had been paid to Anderson, the trustee. In other words, she was informed that Anderson had in his hands $225,000 belonging to the heirs of the estate of which she was administratrix; but she never made any inquiry of Anderson if he had the money, or the slightest effort to collect any part of it for the benefit of the heirs of Reagan, whose trustee she continued to be for three years after that date. Such a thing seems incredible, but, assuming the fact to be as it is stated, the neglect to make inquiry of Anderson was gross and inexcusable laches. It is not only contrary to every dictate of ordinary business prudence, but was a grave violation of her duties to the heirs and distributees of Reagan's estate. She had the means of knowledge in her possession, and the next step in the inquiry was plainly and unmistakably indicated. She had only to apply to Anderson in order to obtain certain and exact information as to what dividends he had received on account of her intestate, and her failure to make this inquiry is fatal to her claim that she was excused from making a demand for payment by her belief that the dividends had already been paid.

It ought not to be necessary to notice again the old argument or appeal so often advanced when the defense of the statute of limitations is interposed by demurrer, that it is a shame and an outrage to allow a defendant who admits his indebtedness to defeat a recovery by this technical defense. The bar of the statute is not a technical defense. The purpose of the law is not to pre vent the recovery of money which is justly due, but to prevent the recovery of money that, according to all reasonable presumptions, has been paid, in an action commenced after the means of proving payment have been lost. It is a statute of repose and security, which can never operate unjustly against persons of ordinary prudence, and which undoubtedly prevents innumerable frauds. Its policy is sound and beneficent; but, even if it were not, it is the law, and is binding alike upon litigants and courts. And it is not true, in any substantial sense, that a demurrer on the ground of the statute of limitations admits an existing indebtedness as matter of fact. What the defendant really says by his plea is, "I admit I was indebted to you as you allege, but your pretense that I have not paid you is conclusively refuted by the other facts which you allege." In this case it appears that Anderson had express authority to collect these dividends, that all other dividends were actually

paid, and that the corporation claims to have paid these, also, to Anderson. This is its . real and meritorious defense, according to the allegations of the complaint; and it only demands, as every one may demand under the law, to be exempted from the necessity of proving after the lapse of years a fact which the law conclusively presumes.

I have not, in this brief statement of the grounds of my concurrence, attempted, and I cannot undertake, to review the authorities cited in the briefs; but I will notice one case upon which appellant specially relies,-the case of Schroeder v. Jahns, 27 Cal. 274. In that case, money was deposited by the plaintiff with defendant's intestate for safe-keeping, upon an express agreement that it should be kept by the depositary in trust for the depositor. As to the necessity of making a prompt demand of payment, there is a clear and manifest distinction between such cases, in which the very object of the transaction is the transfer of the custody of the money for the convenience of the parties during an indefinite period, and a case where the money is received for the mere purpose of paying it over to the person entitled upon his demand. This distinction is recognized in the carefully considered case of Palmer v. Palmer, 36 Mich. 487. These are, in brief, the grounds upon which I concur in the judgment of affirmance.

GAROUTTE, J. I dissent. A demurrer was sustained to plaintiff's complaint upon the ground that his cause of action was barred by the statute of limitations, and upon refusal to amend the action was dismissed, and thereupon this appeal was taken. The complaint contains the following allegation: "Plaintiff further complaining, avers and alleges upon information and belief that the said Silver King Mining Company, with the intent, object, purpose, and design to defraud the said Mary A. Reagan, the heirs of said Benjamin W. Reagan, said estate of said Benjamin W. Reagan, and said administratrix out of said dividend, and out of the moneys payable on account of said dividend, held by it in trust for said heirs and administratrix, and to deceive and impose upon said Mary A. Bills, as said administratrix and individually, and to fraudulently conceal the fact that said dividend had not been paid, so as to prevent an action or suit being brought therefor by said administratrix, and to make said Mary A. Bills, as said administratrix and individually, believe that such dividend had been paid, did on or about the 10th day of September, 1875, and thereafter, and at divers other times, at and in the said city and county of San Francisco, fraudulently state, declare, and represent to said Mary A. Bills and to said administratrix that said dividend on said 49,985 shares of stock had been paid to said John W. Anderson, and that all dividends due on said 49,985 shares of stock had been paid to

said J. W. Anderson, and that no money was due or owing or unpaid on account of said dividend, or on account of, or on any dividends that had been declared on, said 49,985 shares of stock during the lifetime of said Benjamin A. Reagan; that said Mary A. Bills, as said administratrix, at and before the time when said statements, declarations, and representations were made to her, applied to the defendant corporation and its officers in the city and county of San Francisco for information as to said 49.985 shares of stock, and as to whether any dividend which had been declared thereon prior to the death of said Reagan, or any part of such dividend, was unpaid, and as to whether any money was due from said defendant corporation to said estate, or to her as such administratrix, for or on account of any div idend or dividends declared by said defendant corporation prior to the death of said Benjamin W. Reagan, and that such statements, declarations, and representations of the defendant corporation were made at the times of said inquiries, and when such information was being sought, and in reply to such inquiries by said administratrix that said declarations, representations, and statements to said administratrix were made for and in behalf of said defendant corporation by certain of its officers and directors, namely, * * *. That the said administratrix, and said Mary A. Bills, was at the times of the making of said false representations, statements, and declarations as aforesaid, and was known to said corporation and said James M. Barney and B. A. Barney to be, ignorant as to the fact whether said dividends had been paid or not, and that she believed said statements, representations, and declarations to be true, and relied upon the same as true, and had no suspicion that any of the same was or were untrue or false, and was imposed upon and deceived by said false and fraudulent statements, representations, and declarations, and was deceived and misled and defrauded thereby. That she, as such administratrix, and individually, continued to believe and rely upon said statements, representations, and declarations as true, and to act upon the same as true, until the discovery of the fact, as hereinafter alleged. * * That said false statements, representations, and declarations were made to said Mary A. Bills, as aforesaid, with the fraudulent intent, object, purpose, and design to conceal the existence of the cause of action against said defendant corporation for said dividends until a sufficient time should elapse and expire to enable the defendant corporation to interpose a plea of the statute of limitations as a bar to any action to recover said dividends." The complaint further alleges that upon the 10th day of January, 1885, plaintiff discovered the falsity of these statements, and thereupon and upon that day made a demand for a payment of the dividends.

The foregoing facts are sufficient for the purposes before us. They form an interesting recital; and if, under the circumstances here detailed, the appellant can be deprived of his money, and the respondent be allowed to retain it as its own, there is something wrong in the law. It was held by the trial court that this action was barred by the statute of limitations, and this ruling is supported by counsel upon the grounds (1) that no demand for declared dividends is necessary to set the statute of limitations in motion; and (2) that, if such demand is necessary, then the foregoing facts set out in paragraph A constitute a demand on the part of appellant for these dividends, and a refusal upon the part of respondent to pay them, and by reason thereof the statute of limitations was set in motion, and the action fully barred before the filing of the complaint herein.

I cannot assent to either of these propositions. It is a well-established principle of law that a demand for declared dividends is necessary by the owner of stock in a corporation before a right of action exists. It can hardly be claimed that there is any authority to the contrary. It was said in State v. Baltimore & O. R. Co., 6 Gill, 387: "We are clearly of opinion that such demand was necessary before a right of action would exist on the part of the plaintiff to recover this dividend. The established principle that suits could be instituted without demand for dividends declared by banking and other corporations would greatly impair the value of stock held therein, by rendering it necessary to employ agents to hunt up stockholders in various parts of the state or Union, in order to prevent a multiplicity of suits, or, in the failure to do this, suits--and, of consequence, costs-might be multiplied to an alarming extent. Such a doctrine has certainly never been supposed to exist. Dividends are paid when called for, and we apprehend that limitations would not run until demand was made." See, also, Jones v. Railroad Co., 57 N. Y. 205; Railroad Co. v. Corwell, 28 Pa. St. 339; Scott v. Banking Co., 52 Barb. 69; Hagar v. Bank, 63 Me., 512. Upon sound reason, such should be the law. If it were otherwise, the corporation would be at the mercy of the stockholders; for, upon the declaration of a dividend, causes of action innumerable would be outstanding against the corporation. If the law were otherwise, the stockholders would be largely at the mercy of the corporation, for dividends might be declared, and the statute of limitations bar an action for a recovery, before the stockholders were even aware that such dividends had been declared.

The foregoing facts stated in paragraph A do not, in law, amount to a demand and refusal to pay dividends. At the time or times there specified, the administratrix, Mary A. Reagan, demanded nothing, and the corporation refused nothing. The occurrence was simply this: The administratrix, knowing