as against the person who holds it. Recognizing the force of this principle, Harding attempted to show his right by proof of the trust deed, the sale under it, and his purchase. There was a claim that what he did at the ranch in Park county when he went to demand the property gave him control of the cattle in Eagle, which were taken by the sheriff under his attachment, and held under an execution at the time this suit was brought.

The first matter to be determined respects the statute which has been quoted. There was contention in the argument that the instrument which is the foundation of Johnson's title was not a chattel mortgage, and did not come, either by its description or its character, within the definition of this class of security. It is likewise insisted that the nature of the property and the character of the bonds secured by the instrument must necessarily take it out of the operation of this act. Whatever force there may be in the suggestion that, because the bonds ran for 10 years, the property could not be preserved intact for that period without a practical destruction of the security, we are not at liberty to consider these matters in the resolution of the inquiry. This would be judicial legislation which nothing short of a public necessity would warrant, and it may be doubted whether any emergency would justify it. There is no analogy between cattle and the rolling stock of a railroad. In the latter case this sort of property is an integral part of the road, and absolutely essential to its successful operation and maintenance as a railroad. The road itself runs through many counties; the property is in one county to-day and in another to-morrow, and often travels the circuit of the entire state. For these as well as other reasons which will readily occur, this sort of property has never been regarded as coming within the provisions of chattel mortgage acts in states where the question has been raised as to the necessity to observe the provisions of such statutes in the recording of railroad transfers and securities. There is no such practical difficulty with a herd of cattle. The herd can be kept in the limits of the county which is the home of the corporation, the instrument may be recorded in whatever counties the cattle may run, and all statutory limitations can be regarded in the construction of the instrument. The only difficulty springs from the duration of the mortgage. If it ruas for 10 years, and the mortgagors are compelled to keep the same identical cattle, this duty would in some measure destroy the value of the security, because the age of the herd would render it practically unsalable. This seems a very substantial impediment when parties desire to issue corporate bonds running for a period of years, and to provide for their payment out of a herd then in the corporate ownership. We cannot, howev

er, on this account legislate on this subject. The statute declares that the provisions of the chattel mortgage act shall extend to all deeds of trust which have the effect of a mortgage upon personal property. That this particular instrument had that effect does not admit of doubt. If the cattle had been dissevered from the ranch, and there had been two instruments executed to secure the bonds,-one a trust deed upon the realty, and the other a chattel mortgage upon the herd,-nobody would have presumed to question the operative force of the mortgage act upon the instrument. That both species of property are included in one deed can make no possible difference when the statute says that if such an instrument is intended to operate as a mortgage or lien upon the property it shall be held to be within its provisions. We are thus driven to the conclusion that, in order to determine the rights of the parties, we must look to the act and its judicial construction, and the instrument which the parties have executed, to settle the controversy.

The mortgage deed is clearly invalid under the act as it has been construed by the supreme court and by this. It will be observed the corporation attempted to mortgage its entire herd, as well as the 7,000 head included in it, which was the limit to which it must always be maintained during the life of the security. It is practically conceded that 7,000 was not the exact number, but there were cattle outside of it, and of necessity there would be more if the herd increased. The parties agreed that the mortgagor should have the right to dispose of both cattle and horses from time to time, as the cattle should reach the stage of beef, or as the horses should become unproductive and useless, and apply the proceeds to its own use and benefit. Such a provision has been uniformly held by the courts of this state to be absolutely repugnant to the provisions of the statute, and necessarily void as against attaching creditors. As this court said, speaking by the writer of this opinion: "By the terms of the attempted contract, the cattle company had the right to use and enjoy the property and dispose of it in the ordinary methods, and it was under no obligation, by the provisions of the security, to account to the mortgagees for the proceeds of what might be sold. Such a mortgage has been adjudged invalid as to all existing creditors, who are permitted to assert its invalidity as against any but bona fide purchasers for a valuable consideration." As it was well put by the learned justice of the supreme court who delivered the opinion which first established the law in the state (Wilson v. Voight, 9 Colo. 614, 13 Pac. 726), "when the mortgage stipulates, either in the mortgage or out of it, that the mortgagor may sell the very thing composing his security, and retain the proceeds, he thereby destroys every vestige of a valid statutory

or common-law mortgage, and leaves himself in no better position than if it had not been executed. Besides, the inevitable tendency of the transaction is disastrous to other creditors of the mortgagor; for the effect is to hinder and delay such creditors while the mortgagor makes way with the property and leaves the general aggregate of his indebtedness undiminished. Predicated upon these considerations is the view sustained, as we think, by the larger number and the better-reasoned cases, viz. that the existence of the facts mentioned, whether shown by the mortgage or by evidence aliunde, wholly invalidates the transaction as to creditors." In the Brasher Case, 10 Colo. 284, 15 Pac. 403, the court, by the learned commissioner Mr. Macon, held "that the agreement to sell invalidates the mortgage as to creditors and incumbrancers; and this effect takes place at the moment of the delivery of the instrument. It is not necessary to this effect that any of the property be sold under the power. The transaction is vitiated ab initio, as to all the property upon which it is attempted to create a lien, by the reservation of such right, and not by the exercise of it." It is thus plain it is the law of this state that a mortgage like that from which Johnson derives his title is invalid as against creditors, and cannot prevail in a contest concerning the property. Wilson v. Voight, 9 Colo. 614, 13 Pac. 726; Brasher v. Christophe, 10 Colo. 284, 15 Pac. 403; Harbison v. Tufts, 1 Colo. App. 140, 27 Pac. 1014; Wile v. Butler (Colo. App.) 34 Pac. 1110.

If, in our judgment, the present case by its proof was not brought so clearly within the purview of these decisions, we might be called upon to decide some other questions of considerable difficulty which are suggested in the briefs of counsel. Since our conclusion respecting this matter entirely determines the rights of the parties, we do not deem it necessary to consider or decide these other questions. For the error which the court committed in rendering judgment for the plaintiff, this case must be reversed and remanded. Reversed.

(106 Cal. 142)

Action by P. Henry against J. L. Merguire and others as executors. There was a verdict for plaintiff, and he appeals from an order granting defendants' motion for a new trial. Reversed.

and W. H. Chickering, for respondents. Thos. S. Ford, for appellant. J. M. Walling

BELCHER, C. This is an appeal by the plaintiff from an order granting the defendants' motion for a new trial. The motion was made upon a statement of the case, and was granted upon the ground that "the evidence is insufficient to justify the verdict of the jury and decision of the court."

The first point made for a reversal is that the statement was not presented for settlement within the 10 days prescribed by law, and hence it formed no legal basis to support the motion, and the order granting the motion was erroneous. Upon this point the statement shows the following facts: "The proposed statement was served on plaintiff, November 21, 1893, and on November 28th the plaintiff served his proposed amendments. Thereafter, and within five days after November 28, 1893, the defendants served notice on plaintiff that said proposed amendments were not accepted, and that said proposed statement, and the proposed amendments thereto, would be presented to the court for settlement on December 11, 1893. On said December 11th, when presented, the plaintiff objected to the settle ment of said statement on the ground that presentation was not made in time, and said objection was overruled by the court, and the said statement settled, the plaintiff excepting." And the order granting the motion states that plaintiff's counsel "opposed the motion on the merits, and on the ground that the said statement was not presented for settlement within the statutory time," and excepted to the ruling of the court. Section 659, subd. 3, Code Civ. Proc., provides: "If the amendments be adopted, the statement shall be amended accordingly and then presented to the judge who tried or heard the cause for settlement, or be delivered to the clerk of the court for the judge. If not adopted, the proposed statement and amendment shall, within ten days

NEW TRIAL-SETTLEMENT.

1. A settlement by the court of a statement on a motion for a new trial is not an appealable order, within Code Civ. Proc. § 939, subd. 3, providing for an appeal "from any special order made after final judgment."

2. Under Code Civ. Proc. § 659, subd. 3, prescribing the time within which a statement on a motion for a new trial, when proposed amendments by the adverse party are not adopted, must be presented to the court for settlement, a delay of three days is fatal.

Commissioners' decision. In bank. Appeal from superior court, Nevada county; John Caldwell, Judge.

ty to the judge, upon five days' notice to the adverse party, or delivered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, and clerk and judge, as are required for the settlement of bills of exception by section 650. When settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk." The respondents contend that the settlement of the statement was an ap pealable order, and that, as it was not ap

pealed from, appellant cannot on this appeal raise the point now presented. And in support of this position section 939, subd. 3, Code Civ. Proc., and several cases, are cited. The section of the Code relied upon provides that appeals may be taken from several enumerated orders, and "from any special order made after final judgment." The settlement in question was in these words: "The foregoing engrossed statement on motion for new trial is correct, and is hereby settled and allowed." This did not, in our opinion, constitute a special order made after final judgment. It was simply a certificate, and not an appealable order. The cases cited are not in point. In no one of them was it held that an appeal could be taken from such a certificate. The case cited which is most nearly in point is that of Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332. In that case it was held that an order refusing to settle a bill of exceptions was appealable, and counsel says: "Clearly the converse of the proposition must be equally law." But this does not, in our opinion, follow. When a judge refuses to settle a bill of exceptions or statement, there is no record on which the motion for new trial can be considered in the trial or appellate court, and the only remedy is by appeal or mandamus. When, however, the judge settles the bill of exceptions or statement the record is made up; and if, on its face, it shows that the statute was not followed in preparing the record, then that fact may be urged in the lower court, and on appeal in the supreme court, as a reason why the motion for new trial should be denied. There are many cases so holding, but, without reviewing the authorities, we think it sufficient to quote from Mr. Haynes' work on New Trial and Appeal (section 146, p. 409), where he very clearly and succinctly states the law as follows: "The objection when so reserved is to be urged when the statement is presented for settlement as a reason why it should not be settled. If the judge overrules the objection, and proceeds to settle the statement, the party must have his objection and the matter in its support incorporated in the statement. When so incorporated, it may be urged as a reason why the motion should be denied, both in the lower court upon the hearing of the motion, and in the supreme court upon appeal from the order granting or refusing the motion."

Respondents further contend that it does not appear from the statement that the proposed statement and amendments were not presented for settlement within the 10 days prescribed by law. This contention cannot be sustained. It appears that the plaintiff served his proposed amendments on November 28th. The law required the defendants, within 10 days thereafter, if the amendments were not adopted, to present the proposed statement and amendments for settlement, upon five days' notice to the adverse party. The

notice was that the papers would be presented on December 11th, three days after the prescribed time, and on that day when presented objection was made that the presentation was not in time. The language embodied in the statement clearly imports that the papers were presented for settlement on December 11th, and not before. But if, as claimed, they were in fact presented before that day, they were presented without the required notice, and such presentation was insufficient. Besides, if they had been so presented, that fact would probably have been clearly stated, after the objection was made that they were not presented in time. The question then arises, had the court below a right to consider the statement, and upon it to grant the motion for a new trial? In Wills v. Rhen Kong, 70 Cal. 548, 11 Pac. 780, the appeal was from an order refusing a new trial. In that case the defendant, having duly served his proposed statement on motion for a new trial, to which the plaintiff had duly served amendments, presented the same to the judge for settlement 14 days after the service of the amendments. No notice was given to the plaintiff of the presentation. The judge refused to settle the statement, because it had not been presented in time, and because no notice of the presentation had been given, and the order was affirmed. In Bunnel v. Stockton, 83 Cal. 319, 23 Pac. 301, the appeal was from an order denying a new trial, upon the ground that the statement was not served and filed in time, and the order was affirmed. The court said: "The moving party must prepare and serve his statement within the time allowed by law for that purpose, or it cannot be settled, or, if settled, cannot be considered, either at the hearing of the motion or on appeal to this court." In Connor v. Road Co., 101 Cal. 429, 35 Pac. 990, the appeal was from an order denying the defendant's motion for a new trial. In that case it appeared that the proposed statement and amendments thereto were not presented to the judge for settlement until seven months after the amendments were served, and the plaintiff objected to the settlement upon the ground that the presentation was not in time. This objection was, however, overruled, and the statement settled. The court said: "The delay of seven months in presenting the statement and amendments to the judge for settlement is wholly unexplained. The settlement having been objected to on the ground that it was too late, it became the duty of appellant to incorporate in the bill [statement] the matter, if any, going to excuse his apparent delay; otherwise the exceptions, though settled, cannot be considered here. Higgins v. Mahoney, 50 Cal. 444.'" The court then quoted the following language from Tregambo v. Mining Co., 57 Cal. 503: "If a statute absolutely fixes the time within which an act must be done, it is peremptory. The act

cannot be done at any other time, unless during the existence of the prescribed time it has been extended by an order made for that purpose under authority of law,"-and added: "This language was used in relation to the time within which a bill of exceptions might be taken under the statute, and is therefore applicable here. To hold that the statement may be settled when no steps were taken until after the expiration of the ten days, the time for doing so not having been extended, and respondent objecting thereto, would be a judicial abrogation of the statute." Here no excuse for the delay is shown, and it can make no difference whether it was for three days, or fourteen days, or seven months. Under the decisions, it must therefore be held that the court below had no right, on hearing the motion, to consider the statement, and that it cannot be considered by this court on appeal. The other points made for reversal need not be noticed. The order appealed from should be reversed.

FOOTE v. HAYES. (No. 15,800.) (Supreme Court of California. Feb. 27, 1895.) ACTION ON PROMISSORY NOTE - DEFENSES-FRIVOLOUS APPEAL.

1. In an action by a transferee of a note, where defendant sets up want of consideration, but does not produce any evidence that plaintiff's transferror was a party to the fraud, or took the note with notice, or after maturity, a verdict for defendant should be set aside.

2. In view of the plain provisions of Code Civ. Proc. § 662, and numerous decisions of the supreme court, an appeal taken on the ground that trial courts have no authority to set aside verdicts is frivolous.

Department 2. Appeal from superior court, Alameda county; W. E. Green, Judge.

Action by W. D. Foote against D. D. Hayes on a promissory note. There was a verdict for defendant, and he appeals from an order setting it aside. Affirmed.

John J. Stephens (Ben Morgan, of counsel), for appellant. A. A. Moore, for respondent.

HENSHAW, J. This action is on a promissory note, and was tried with a jury. Plaintiff, by his evidence, by the admissions of the answer, and by the presumptions of law which follow the possession of a promissory note bearing a general indorsement, established a satisfactory prima facie case. A motion that the court instruct the jury to render a verdict for defendant was made, and properly denied. The ruling was not excepted to. Defendant was then called to the witness stand, and, after the court, for the benefit of his attorney, had made an

elaborate and seemingly needful exposition of the elementary principles of law affecting negotiable instruments, this discussion fol lowed: "Mr. Stephens: I propose to prove that the note was given to the CrockerWoolworth Bank, and that they were a party to the fraud. The Court: In what respect Mr. was it a party? What did they do? Stephens: They took this note of Mr. Hayes The Court: Took from J. W. Girvin & Co. it when? Mr. Stephens: After the note was made. The Court: When? Mr. Stephens: I cannot tell you until I get the books of the bank. The Court: Before it was due, or after it was due? Mr. Stephens: After it was due." Counsel for the defendant further said that he would show that a fraud had been committed by Girvin & Co. upon Mr. Hayes, in that no consideration had been given. "The Court: If you will undertake to do that, go on." The defendant, under this engagement of his attorney, was allowed to testify and did testify to facts tending to show that, as between himself and the payee, the note was obtained by fraud. Defendant then rested his case. It was not shown, attempted to be shown, that the bank was a party to the fraud, or that it took the note with notice, or after maturity. No word of testimony to such import is in the record. The jury, after proper instructions, rendered a verdict for defendant. This verdict the court, of its own motion, set aside, upon the ground of prejudice. That action constituted the alleged error sought to be corrected upon this appeal.

or

The evidence of fraud was only admissible under the unkept engagement of counsel to connect the bank with it. It constituted no defense to the case as presented, and obviously served to awaken prejudice in the minds of the jury. Either there was the gravest misapprehension upon the part of the jury of the instructions, or it was influenced by prejudice. In either case it was the duty of the court to set the verdict aside. Code Civ. Proc. § 662. But the especial point made by appellant in a brief containing no single citation to Code or case, and likewise urged in oral argument before this court, though respondent's brief, containing the Code section above mentioned, was with him, is found in his declaration that "there is no provision in the statute granting to a court in a civil case the right or power to set aside a verdict." "Can a judge," it is asked, "set aside such a verdict, upon the ground of prejudice of the jury, in favor of a successful party?" And for reply we are told that, "Echo answers in stentorian tones, 'No';" and this, notwithstanding the plain provision of the Code and the numerous decisions of this court declaring the duty of the trial judge under such circumstances. So much has been said to show the utter frivolity of the appeal. It works a waste of the time of this court, and subjects respondent to vexatious delay and expense. The order appealed from is affirmed, and it is

further adjudged that respondent have and recover from appellant damages in the sum of $200 as part of his costs.

We concur: TEMPLE, J.; MCFARLAND, J.

Hopkins, 95 Cal. 347, 28 Pac. 265, and 30 Pac. 549. The judgment is affirmed.

We concur: TEMPLE, J.; MCFARLAND. J.

(106 Cal. 327)

(106 Cal. 151) BANCROFT CO. v. HASLETT et al. (No. 15,705.)

(Supreme Court of California. Feb. 27, 1895.) CONVERSION-PLEADING AND PROOF OF TIME.

Plaintiff need not prove the exact date of a conversion, as alleged by him, provided he shows that the tort was committed before the commencement of the action.

Department 2. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge.

Action by the Bancroft Company against Samuel Haslett and others for conversion. From judgment for plaintiff, defendants appeal. Affirmed.

John H. Dickinson, for appellants. George D. Collins, for respondent.

HENSHAW, J. Action for damages for conversion of a piano. Defendants pleaded that the piano was stored with them as warehousemen, and, after due notice to plaintiff, was sold to pay charges. They claimed that the sum of $10 was yet due on account of such charges, and asked judgment for that amount. The appeal is from the judgment alone.

The action was commenced upon November 14, 1892, and alleged the conversion as of July, 1892. The court found that defendants converted the piano to their own use upon February 21, 1891. The variance is immaterial, and not such as would warrant a reversal of the cause. Code Civ. Proc. §§ 470, 475. It was not necessary at common law that the proofs should be in strict conformity with the averment as to the date of the conversion. It was sufficient if, naming a certain time before the commencement of the action, the proof established that the tort was committed before the suing of the writ. 2 Saund. Pl. p. 1141; Gould, Pl. § 65; Rex v. Bishop of Chester, 2 Salk. 561; 1 Greenl. Ev. § 61 et seq. No greater strictness is required under our system. The findings are sufficient. They show that the piano came into defendants' possession against plaintiff's will; that it was not stored because of plaintiff's refusal to pay the lawful charges upon it, but was stored without authority; that plaintiff demanded its return, and was refused; and that thereafter defendants converted it to their own use. These facts sustain the judgment, and negative the claim of defendants. Additional findings would not, therefore, affect the judgment, nor afford defendants any relief. Robarts v. Haley, 65 Cal. 402, 4 Pac. 385; Malone v. County of Del Norte, 77 Cal. 217, 19 Pac. 422; Dyer v. Brogan, 70 Cal. 136, 11 Pac. 589; Diefendorff v.

WICKERSHAM v. CRITTENDEN et al. (No. 19,349.)1

(Supreme Court of California. March 9, 1895.) CORPORATIONS-SALARY TO OFFICERS.

A salary, whether a proper one or not, voted by trustees of a bank to one of their number as president, is unlawful, and he may be compelled to account therefor in an appropriate action, where he took part in the proceedings, and his vote was essential to the adoption of the resolution.

In bank. Appeal from superior court, San Luis Obispo county; V. A. Gregg, Judge.

Action by I. G. Wickersham, a stockholder of a bank, for himself and other stockholders, against James I. Crittenden and the bank, to compel Crittenden to account for certain moneys received by him as president of the bank. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed.

Graves & Graves and Jas. L. Crittenden, for appellants. Lippitt & Lippitt and Wilcoxon & Bouldin, for respondent.

PER CURIAM. This is an action brought by a stockholder of a bank for himself and other stockholders to compel the defendant Crittenden to account, as president of said bank, for certain moneys received by him for salary as such president, over and above the sum of $200 per month. Judgment went for plaintiff, and said defendant and the bank-which was made a defendant-appeal from the judgment and from an order denying a motion for a new trial.

The general nature of the action appears in the opinion of the court in Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788 (although matters other than said salary were there involved), and need not be repeated here. There were, no doubt, errors committed by the trial court in ruling upon the admissibility of evidence. A mass of irrelevant documentary matter was admitted; but it did no harm, because it did not obscure, nor in any way affect, the main fact upon which the case turns, namely, that the increase of the salary of the president depended upon and was accomplished by his own vote as a trustee. This fact fully appears from the evidence, and is unaffected by any rulings claimed to be erroneous. As was said in Wickersham v. Crittenden, supra, the trustees cannot "vote a salary to one of their number as president, when he takes part in the proceeding, and his vote is essential to the adoption of the resolution. The right of

Crittenden to withdraw the money of the bank as compensation for such services was not increased by his causing to be spread upon its records a resolution that he might

Rehearing denied.