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tion, it is not permissible to prove that the them, belonged to Dolph, or to sift him as to defendant has committed crimes other than where he got them. There is no error in that with which he is charged. People v. the record calling for a reversal, and the Gray, 66 Cal. 271, 5 Pac. 240; People v. judgment and order appealed from should be Barnes, 48 Cal. 551; People v. Hartman, 62 affirmed Cal. 502; People v. McNutt, 64 Cal. 116, 28 Pac. 64. There are exceptions to the rule We concur: VANCLIEF, C.; BELCHER, C. stated, which arise in cases where the intent or guilty knowledge is an element to be es- PER CURIAM. For the reasons given in tablished, as in the case of uttering forged the foregoing opinion, the judgment and orbills, etc., but they in no wise alter the gen- der appealed from are affirmed, and the eral rule. Another exception to the rule is cause remanded, with directions to the supesaid to be that where two persons are killed rior court to take the proceedings necessary at the same time and place, and apparently for the enforcement of its judgment. in the same transaction, or approximately so, evidence as to the circumstances of the killing of one is admissible on the trial under
(106 Cal. 9) an indictment for the killing of the other.
BILLS V. SILVER KING MIN. CO. et al. Brown v. Com., 76 Pa. St. 319; Com. v. Fer
(No. 13,406.) rigan, 44 Pa. St. 386; Fernandez v. State,
(Supreme Court of California. Jan. 28, 1895.) 4 Tex. App. 419; Heath's Case, 1 Rob. (Va.)
CORPORATION DEMAND FOR DIVIDEND – SUFFI735; People v. Foley, 64 Mich. 148, 31 N.
CIENCY-RUNNING OF LIMITATIONS-FRAUD. W. 94; People v. Rogers, 71 Cal. 565, 12 Pac. 1. An inquiry by an administratrix, at the 679; People v. McGilver, 67 Cal. 55, 7 Pac. offices of å corporation, as to whether all divi. 49; People v. Walters, 98 Cal. 141, 32 Pac.
dends on stock owned by decedent had been
paid, which is answered affirmatively, is a 864. We have no doubt of the soundness of
sufficient demand for such dividends to put in the exception last mentioned.
operation the statute of limitations against a however, in the present case, a more cogent
claim for all dividends then due decedent.
Garoutte, J., dissenting. reason for the introduction of the proffered
2. An administratrix, in 1879, inquired at testimony. Dolph and Charlie were living the office of a corporation in which decedent in the same house, in apparently an isolated held stock, as to whether all dividends due deplace, and were left there by defendant alive
cedent had been paid him, and was told that
they had all been paid to A., decedent's agent. and well, according to his statement. Un
Without making further inquiry from the corder these circumstances, it might have ap- poration or the agent, she and her successor peared quite probable to the jury that Char
administered the estate, and the estate was set
tled without reference to such dividends. An lie, and not the defendant, it was who killed
assignee of the next of kin's interest sued in Dolph, and threw his body in the river. This 1886 to recover dividends due decedent, averwas met by showing that Charlie, too, was ring that he was not informed till 1885 that
there were dividends due. Held, that the runkilled, and his body also placed in the stream.
ning of limitations was not suspended under Conceding this to be true, Charlie might
Code Civ. Proc. $ 338, subd. 4. providing that still have killed his partner, and then com- a cause of action for fraud shall not be deemed mitted suicide. This last theory was met by
to have accrued till the discovery of the fraud showing that Charlie was shot at the house,
by the aggrieved party. Garoutte, J., dissent
ing. one-half of his head blown off, a part of his skull and one lobe of his brain being found
In bank. Appeal from superior court, city there; thus showing that his death occurred
and county of San Francisco, J. C. B. Hebat that point, and hence that he could not
bard, Judge. have gone to the river, where the body was
Action by Albert V. Bills against the Silfound. In this point of view the evidence
ver King Mining Company and others to rewas highly important, and eminently proper.
cover dividends. A demurrer to the comIt should also be remarked that the evidence plaint was sustained, and plaintiff appeals. went to show that Charlie was killed, and
Affirmed. not that defendant killed him.
James L. Crittenden and James P. Bowie, Defendant offered himself as a witness, on for appellant. Garber, Boalt & Bishop and his own behalf, and, on cross-examination, F. A. Berlin, for respondents. was interrogated in regard to the articles found in hỉs possession when arrested at Col- MCFARLAND, J. The court below sustainlinsville. This was proper.
On his direct ed a demurrer to the complaint, and, plainexamination he had testified explicitly that tiff declining to further amend, judgment all the stuff he took upon leaving the house went for defendants. Plaintiff appealed. was his; that the bed was his, the tent, the The court below correctly sustained the degold and silver watches, etc., and that he murrer, and gave judgment for defendants. was particular to take nothing that was not The demurrer was upon various grounds,his own; and that, when he left, the boys' among others, that the complaint does not (Charlie's and Dolph's) things were in the state facts sufficient to constitute a cause of house. In response to this it was legitimate action, that the action is barred by several cross-examination to ask him any questions sections of the Code about the limitations of tending to show that the articles, or some of actions, and that the plaintiff is shown to have been guilty of laches. The material any facts with respect to said alleged divi. averments of the complaint, which are made dends. No demand was made for an inspec. upon information and belief, are these: The tion of the books or papers of said corporadefendant the Silver King Mining Company tion, and no effort was made to discover from is a corporation, and during the years 1877, said J. W. Anderson whether or not it was 1878, and 1879 one Benjamin W. Reagan was true that such dividends had been paid to the owner of a large portion of the shares of him. Said dividends were not included in the the capital stock of said corporation, which inventory of said estate, as property thereof, were represented by a certificate in due form, and said estate was distributed and closed No. 72, issued to one J. W. Anderson, who without any reference to said alleged diviwas the agent of said Reagan for the purpose dends. No reason is shown why inquiries of holding said shares, and collecting the divi- were not made about said dividends of the dends thereon. It was a verred that between said Anderson, the only averment in that rethe 21th day of October, 1877, and the 30th spect being simply that he was absent from day of June, 1879, the said corporation regu- the state at the time of the death of said larly declared dividends on its stock, and that Reagan. There is no averment of any conupon said dividends "there became and was spiracy between said corporation and the de. due and payable from said defendant the Sil- fendant Anderson to conceal any facts about ver King Mining Company to said J. W. An- said dividends, and no misconduct whatever derson, trustee, as agent of said Benjamin is charged against said Anderson. It is mere. W. Reagan, on the shares of stock represent- ly averred that Anderson refused to bring ed by said certificate No. 72," the sum of this suit, and that, therefore, he is made a $224,932.50. Said Reagan died intestate on party defendant; there being also an averthe 26th day of July, 1879, and his widow, ment, "on belief,” that he asserts some right Mary A. Reagan, was duly appointed as ad- over said dividends. It is further averred ministratrix. She entered upon said office of that on the 10th of January, 1885, the person administratrix on the 10th of September, who afterwards became the attorney of record 1879, and continued to be such administra- of plaintiff in this present action informed trix until the 7th of November, 1882, when plaintiff that said dividends had not been she resigned, and one Joseph Nash was then paid, and that this was the first information duly appointed administrator, and remained plaintiff had of that fact. This action was such until the 6th of March, 1884, when there commenced, as appears by an amendment to was a final decree of distribution of the es- the record, on the 27th day of April, 1886. tate, and a closing of the administration. It The complaint contains nine counts, each on was averred that, at periods before and after a separate dividend alleged to have been de the said decree, plaintiff herein, who married clared as aforesaid during the said period the said widow, took an assignment from all above mentioned; and judgment is demanded the heirs and distributees of their interest in for the said sum of $224,932.50, with interest. the property of said estate. It is further al- It is further averred that on January 10, 1887, leged that said administratrix, Mary A. Rea- the said Mary A. Bills (formerly Mary A. gan, on or about the 10th day of September, Reagan) demanded of said corporation the 1879, “applied to the defendant corporation payment to her of said dividends, and that and its oflicers in the city and county of San on or about the 10th of January, 1885, the Francisco for information as to said shares said plaintiff demanded of said corporation of stock, and as to whether any dividend the payment to him of said dividends, and which had been declared thereon prior to the also made the same demand on the 6th of death of said Reagan, or any part of such January, 1886, and that the defendant cordividend, was unpaid, and as to whether any poration wholly refused to comply with any money was due from said defendant corpo- of said demands. ration to said estate, or to her as adminis- The action was clearly barred by the stattratrix, for or on account of any dividend or ute of limitations. If the alleged liability dividends declared by said defendant corpora- sued on is to be considered as one founded tion prior to the death of said Benjamin W. upon an instrument in writing, it is barred Reagan,” and that the said corporation and by section 337 of the Code of Civil Procedure. its officers, for the purpose of defrauding said If it be not an obligation founded upon an inadministratrix at said time, stated to said strument in writing; it is barred by section administratrix “that all dividends due on 3:39 of said Code. And, under any view of said shares of stock had been paid to said the liability, it is barred by section 313. ApJ. W. Anderson, and that no money was due pellant contends that an action cannot be or owing or unpaid on account of
maintained for a dividend declared by a corany dividends declared on said shares of poration until a demand shall have been stock during the lifetime of said Benjamin made for the same, and that, therefore, the W. Reagan.” It is further averred that said statute of limitations did not commence to administratrix believed said statements as to run in the case at bar until the time in 1883 said dividends. It does not appear that said or 1886 when the said demands last above administratrix, or her successor, the said stated were made. There is some conflict of Nash, or any other person interested in the es- authority upon the point whether such a divitate, ever made any further effort to discover | dend is a debt owing by the corporation to the holder of the shares, or mere property of upon said certificate; that plaintiff has not the shareholder rightfully in possession of shown a proper deraignment of title from the the corporation, and therefore a conflict as to heirs and distributees of the estate of Reawhether a demand is necessary before suit. gan; that the averments of fraud are not But in any event no particular form of de- against the corporation, but simply against mand is necessary; and therefore, waiving one or two of its oflicers; that, under any for the present the point above suggested, it view the plaintiff should have sued Anderson, is clear that what occurred between the ad- as trustee, and enjoined the corporation from ministratrix and the corporation in 1879, as paying dividends to him, and thus, through a hereinbefore stated, amounted in law to a de- decree in equity, have secured said dividends, mand for the dividends. She was informed etc. The judgment and order appealed from at that time by the corporation that there are affirmed. was no money due or owing or unpaid on ac
We concur: HARRISON, J.; VAN count of said dividends; and it was a clear refiisal of her request for the payment of said
FLEET, J. dividends, and a denial of any liability of the BEATTY, C. J. I concur in the judgment corporation thereon. The corporation then of affirmance. The substance of the comand there put itself in a state of hostility to plaint is that between November, 1877, and the estate of said Reagan with respect to any October, 1878, the corporation defendant dealleged obligation in the matter of said divi
clared large dividends, of which $225,000, in dends, and no further deinand or refusal w:1s round numbers, were payable to Reagan or necessary; and, if suit had been brought
his trustee, Anderson, in whose name Reaagainst it, want of demand would not have
gan's stock stood; that no part of these divibeen a defense. Appellant contends, how- dends has been paid; and that the plaintiff, ever, that he is entitled to relief on the ground Bills, has succeeded to the right to demand of fraud, and that under subdivision 4 of sec
and sue for the same. Much of the volumition 338, Code Civ. Proc., the cause of action nous matter contained in the complaint condid not accrue until what he contends to be
sists of a deraignment of plaintiff's title, and the discovery of the facts constituting the
another large portion consists of excuses for fraud in 1885. But waiving the question the long delay in making demand and comwhether the averments of facts constituting mencing the action. Excluding these matthe fraud in the complaint are specific ters, the cause of action is merely the reenough, or whether such averments are suffi- fusal of the corporation to pay to its stockcient if made only upon information and be holder his share of declared dividends. This lief, still the statute of limitations cannot be is a simple action at law, to which the deavoided in a case where the facts are suffi
fense of the statute of limitations is as clearcient to put a person of ordinary intelligence ly applicable as to any other, and it is barred and prudence on inquiry as to the truth.
in two years after it accrues. Code Civ. And in the case at bar the administratrix, Proc. § 339. I concede that a preliminary Vary A. Reagan, was certainly guilty of the demand of payment is necessary to perfect grossest laches in not making any effort to the right of action, and that if such demand discover what she now alleges to be the real is made within a reasonable time the statute facts with respect to the dividends. She was does not begin to run until after demand and informed that this large sum of money, refusal to pay. But the stockholder cannot amounting to nearly a quarter of a million, defeat the policy of the statute by unreasonhad been paid to Anderson, whom she avers to able delay in making his demand. The polhave been the agent of her deceased husband, icy of the statute is to prevent suits upon yet she never made any inquiry of the said stale claims, and to exempt the debtor from Anderson as to the truth of the statement the necessity of proving payment after the that this large amount of money had been means of proof have been lost or impaired. paid to him; and she went on to administer If a creditor, in cases like this, could sue 10 the estate, and, without any allusion to said or 20 or any number of years after his claim large sum of money, she and her successor as accrued, and maintain his action, upon the administrator, and all interested in the estate, simple allegation that he had never demandallowed it to be settled and finally distributed ed pay until at a date within the period of without any reference whatever to said divi- limitations, the debtor would never be sedends. Under these circumstances, the plain- cure, because the issue of payment could altiff in this case cannot be heard to say that ways be litigated by simply adding the other his assignors were deceived for so many years issue,-failure to demand. For this reason it by an alleged false statement of the defend- | has been held in a great number of instances, ant corporation, which, if false, could have and is undoubtedly the law, that the creditor, been disproved so easily by the use of the in cases of this character, must make his deslightest diligence. The foregoing views ren- mand within a reasonable time after the der it unnecessary to consider other points money is received to his use. As to what is made by respondents,-as, for instance, that a reasonable time is ordinarily determined by Anderson, being the holder of the certificate, the analogy of the statutory periods of limicould alone sue on it, and that the plaintiff tation. If the cause of action is barred by is not the proper person to maintain an action the lapse of two years after it becomes com
plete, then the demand must be made within | paid, and that the corporation claims to have two years after the right to make it accrues, paid these, also, to Anderson. This is its or a valid excuse must be shown for the fail- real and meritorious defense, according to ure to make it within that time. Now in the allegations of the complaint; and it only this case Mrs. Bills (then Mrs. Reagan, and demands, as every one may demand under administratrix of Reagan's estate) knew of the law, to be exempted from the necessity these dividends as early as September, 1879, of proving after the lapse of years a fact and inquired of the corporation, through some
which the law conclusively presumes. of its trustees, if they had been paid. She I have not, in this brief statement of the was informed that they had been paid to grounds of my concurrence, attempted, and Anderson, the trustee. In other words, she I cannot undertake, to review the authorities was informed that Anderson had in his hands cited in the briefs; but I will notice one case $225,000 belonging to the heirs of the estate upon which appellant specially relies,—the of which she was administratrix; but she case of Schroeder v. Jahns, 27 Cal. 274. In never made any inquiry of Anderson if he that case, money was deposited by the plainhad the money, or the slightest effort to col- tiff with defendant's intestate for safe-keeplect any part of it for the benefit of the heirs ing, upon an express agreement that it should of Reagan, whose trustee she continued to be be kept by the depositary in trust for the for three years after that date. Such a depositor. As to the necessity of making a thing seems incredible, but, assuming the fact | prompt demand of payment, there is a clear to be as it is stated, the neglect to make in- and manifest distinction between such cases, quiry of Anderson was gross and inexcusable in which the very object of the transaction laches. It is not only contrary to every dic- is the transfer of the custody of the money tate of ordinary business prudence, but was a for the convenience of the parties during an grave violation of her duties to the heirs and indetinite period, and a case where the mondistributees of Reagan's estate. She had the ey is received for the mere purpose of paying means of knowledge in her possession, and it over to the person entitled upon his de. the next step in the inquiry was plainly and mand. This distinction is recognized in the unmistakably indicated. She had only to ap- carefully considered case of Palmer v. Palmply to Anderson in order to obtain certain er, 36 Mich. 487. These are, in brief, the and exact information as to what dividends grounds upon which I concur in the judghe had received on account of her intestate, ment of affirmance. and her failure to make this inquiry is fatal to her claim that she was excused from mak- GAROUTTE, J. I dissent. A demurrer ing a demand for payment by her belief that was sustained to plaintiff's complaint upon the dividends had already been paid.
the ground that his cause of action was It ought not to be necessary to notice barred by the statute of limitations, and upagain the old argument or appeal so often on refusal to amend the action was dismissadvanced when the defense of the statute of ed, and thereupon this appeal was taken. limitations is interposed by demurrer, that The complaint contains the following allegait is a shame and an outrage to allow a de- tion: "Plaintiff further complaining, avers fendant who admits his indebtedness to de- and alleges upon information and belief that feat a recovery by this technical defense. the said Silver King Mining Company, with The bar of the statute is not a technical de- the intent, object, purpose, and design to defense. The purpose of the law is not to pre. fraud the said Mary A. Reagan, the heirs of vent the recovery of money which is justly said Benjamin W. Reagan, said estate of said due, but to prevent the recovery of money Benjamin W. Reagan, and said administrathat, according to all reasonable presump- trix out of said dividend, and out of the tions, has been paid, in an action commenced moneys payable on account of said diviafter the means of proving payment have dend, held by it in trust for said heirs and been lost. It is a statute of repose and se- administratrix, and to deceive and impose curity, which can never operate unjustly upon said Mary A. Bills, as said adminisagainst persons of ordinary prudence, and tratrix and individually, and to fraudulently which undoubtedly prevents innumerable conceal the fact that said dividend had not frauds. Its policy is sound and beneficent; been paid, so as to prevent an action or suit but, even if it were not, it is the law, and is being brought therefor by said administrabinding alike upon litigants and courts. And trix, and to make said Mary A. Bills, ils said it is not true, in any substantial sense, that administratrix and individually, believe that a demurrer on the ground of the statute | such dividend had been paid, did on or of limitations admits an existing indebted about the 10th day of September, 1875, and ness as matter of fact. What the defendant thereafter, and at divers other times, at and really says by his plea is, “I admit I was in- in the said city and county of San Frandebted to you as you allege, but your pre- cisco, fraudulently state, declare, and repretense that I have not paid you is conclusive- sent to said Mary A. Bills and to said adminly refuted by the other facts which you al- istratrix that said dividend on said 49,983 lege." In this case it appears that Anderson shares of stock had been paid to said John had express authority to collect these divi- W. Anderson, and that all dividends due on dends, that all other dividends were actually said 49,985 shares of stock had been paid to
said J. W. Anderson, and that no money The foregoing facts are sufficient for the was due or owing or unpaid on account of purposes before us. They form an interestsaid dividend, or on account of, or on any ing recital; and if, under the circumstances dividends that had been declared on, said here detailed, the appellant can be deprived 49,985 shares of stock during the lifetime of of his money, and the respondent be allowed said Benjamin A. Reagan; that said Mary to retain it as its own, there is something A. Bills, as said administratrix, at and be- wrong in the law. . It was held by the trial fore the time when said statements, declara- court that this action was barred by the tions, and representations were made to her, statute of limitations, and this ruling is supapplied to the defendant corporation and its ported by counsel upon the grounds (1) that officers in the city and county of San Fran. no demand for declared dividends is necescisco for information as to said 49.985 shares sary to set the statute of limitations in moof stock, and as to whether any dividend tion; and (2) that, if such demand is neceswhich had been declared thereon prior to the sary, then the foregoing facts set out in death of said Reagan, or any part of such paragraph A constitute a demand on the dividend, was unpaid, and as to whether part of appellant for these dividends, and any money was due from said defendant a refusal upon the part of respondent to pay corporation to said estate, or to her as such them, and by reason thereof the statute of administratrix, for or on account of any div. limitations was set in motion, and the action idend or dividends declared by said defend fully barred before the filing of the comant corporation prior to the death of said plaint herein. Benjamin W. Reagan, and that such state- I cannot assent to either of these proposiments, declarations, and representations of tions. It is a well-established principle of the defendant corporation were made at the law that a demand for declared dividends is times of said inquiries, and when such in- necessary by the owner of stock in a corporaformation was being sought, and in reply to tion before a right of action exists. It can such inquiries by said administratrix that hardly be claimed that there is any authorisaid declarations, representations, and state- ty to the contrary. It was said in State v. ments to said administratrix were made for Baltimore & O. R. Co., 6 Gill, 387: “We are and in behalf of said defendant corporation clearly of opinion that such demand was necby certain of its officers and directors, name- essary before a right of action would exist ly, * * *. That the said administratrix, on the part of the plaintiff to recover this divand said Mary A. Bills, was at the times of idend. The established principle that suits the making of said false representations, could be instituted without demand for divstatements, and declarations as aforesaid, idends declared by banking and other corpoand was known to said corporation and said rations would greatly impair the value of James M. Barney and B. A. Barney to be, stock held tberein, by rendering it necessary ignorant as to the fact whether said divi. to employ agents to hunt up stockholders in dends had been paid or not, and that she be- various parts of the state or Union, in order lieved said statements, representations, and to prevent a multiplicity of suits, or, in the declarations to be true, and relied upon the failure to do this, suits--and, of consequence, same as true, and had no suspicion that any costs-might be multiplied to an alarming of the same was or were untrue or false, and extent. Such a doctrine has certainly never was imposed upon and deceived by said false been supposed to exist. Dividends are paid and fraudulent statements, representations, when called for, and we apprehend that limand declarations, and was deceived and mis- itations would not run until demand was led and defrauded thereby. That she, as made." See, also, Jones v. Railroad Co., 57 such administratrix, and individually, con- N. Y. 205; Railroad Co. v. Corwell, 28 Pa. St. tinued to believe and rely upon said state- 339; Scott v. Banking Co., 52 Barb. 69; Haments, representations, and declarations as gar v. Bank, 63 Me., 512. Upon sound reatrue, and to act upon the same as true, until son, such should be the law. If it were oththe discovery of the fact, as hereinafter al- erwise, the corporation would be at the mercy leged.
That said false statements, of the stockholders; for, upon the declaration representations, and declarations were made of a dividend, causes of action innumerable to said Mary A. Bills, as aforesaid, with would be outstanding against the corporation. the fraudulent intent, object, purpose, and if the law were otherwise, the stockholders design to conceal the existence of the cause would be largely at the mercy of the corporaof action against said defendant corporation tion, for dividends might be declared, and for said dividends until a sufficient time the statute of limitations bar an action for a should elapse and expire to enable the de- recovery, before the stockholders were even fendant corporation to interpose a plea of aware that such dividends had been declared. the statute of limitations as a bar to any ac- The foregoing facts stated in paragraph A tion to recover said dividends." The com- do rot, in law, amount to a demand and replaint further alleges that upon the 10th day fusal to pay dividends. At the time or times of January, 1885, plaintiff discovered the there specified, the administratrix, Mary A. falsity of these statements, and thereupon Reagan, demanded nothing, and the corporaand upon that day made a demand for a tion refused nothing. The occurrence was payment of the dividends.
simply this: The administratrix, knowing