receive that amount as his salary." This is conclusive of the case in favor of respondent, and it is of no consequence whether the salary was a proper one or not. Neither is it necessary to examine into the other features of the struggle between the appellant and respondent to obtain control of the management of the bank. The resolution raising the salary of appellant was invalid, and that is the only matter necessary to be considered in the case. The complaint was sufficient, because it set up the fact above stated. The case is one of those equity cases in which there is no right to a jury. The judgment and order appealed from are affirmed.

(106 Cal. 329)

WICKERSHAM v. CRITTENDEN et al. (No. 19,350.)1 (Supreme Court of California. March 9, 1895.) CORPORATIONS-ACTION BY STOCKHOLDERS-AP

PEAL.

1. An officer and stockholder of a bank will be required to account in an action by another stockholder for attorney's fees which he procured to be paid by the bank for attorney's services rendered solely for his own benefit in a litigation between himself and a third stockholder for the control of the bank.

2. A contention on appeal that there is no evidence to sustain a certain finding by the court will not be sustained where the record contains a specification affirming the existence of such fact, without any specification of want of evidence to sustain the finding.

3. Where the evidence shows, in an action by a stockholder against a bank, that a request of the directors to bring the action would have been useless, defendant cannot object that the stockholder made no such request.

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

Action by I. G. Wickersham, a stockholder in the Bank of San Luis Obispo, for himself and other stockholders, against the bank and James L. Crittenden, to compel Crittenden to account for certain attorney's fees paid by the bank, on the ground that the services were rendered for his benefit alone. 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. In this case, as in Wickersham v. Crittenden (No. 19,349; this day decided) 39 Pac. 602, there was a mass of irrelevant evidence introduced by respondent. This evidence might be accounted for, perhaps, by a stipulation referred to in respondent's brief, which stipulation does not appear in the transcript. But, as we said in the other case, this evidence does no harm, because it does not affect the main features of the case. This action was brought by Wickersham, a stockholder in the Bank of San Luis Obispo, for himself and other stockholders, against defendant Crittenden and the bank, to compel Crittenden to account 1 Rehearing denied.

to the bank for certain attorneys' fees in certain actions paid to Graves & Graves, attorneys at law,-$1,000 at one time, and $512.50 at another time. The court below found in favor of defendants as to the $512.50, but gave judgment for plaintiff for the $1,000 and interest. Defendants appeal from the judgment, and from an order denying their motion for a new trial.

At the time the said $1,000 was paid to said attorneys, Crittenden was a stockholder, trustee, and president of the bank; and it is quite clear that the actions for the defense of which said attorneys were employed were actions in which Wickersham and Crittenden were the only real parties in interest, contesting with each other, as stockholders, for the control of the bank. The bank had no real interest in the contest. The services of the attorneys were rendered for the benefit of Crittenden alone, and the value of such services should have been paid by Crittenden, and not by the bank. The lower court, therefore, held correctly that he should account to the bank for the money which he procured it to pay out to his own attorneys.

Appellants contend that there is no evidence showing that the money was ever actually paid to said attorneys, but the court so found, and there is no specification of want of evidence to sustain such finding On the contrary, in the ninth specification It is stated that "said board did fix and pay the compensation of Graves & Graves for their said services, and that said action of the board of directors was subsequently rati fied," etc. Of course, with such a specification, respondent was not called upon to see that the statement contained evidence of such payment. It is averred in the complaint, as a reason for not making a request of the directors of the bank to bring this ac tion, that the directors were all under the control of Crittenden, and acting in conjunction with him, and that such request would have been useless, and would have been refused; and it is contended by appellants that the court erred in refusing to allow them to ask one of said directors if he was under the control of said Crittenden. We think, however, that this ruling presents no ground for reversing the judgment, because appellants at no time offered to prove that, if such request had been made, it would have been granted. On the other hand, Crittenden and the bank (controlled, of course, by its trustees) contested the merits of the case, claimed that the alleged wrongful acts upon which the action is based were right, and tried the action upon that theory. Having thus shown that a request of the directors to bring the action would have been futile, they cannot now be heard to say that the respondent should have made the futile request. There are no other points necessary to be noticed in addition to those noticed in said case No. 19,349. The judgment and order are affirmed.

BEATTY, C. J. These are separate applications for writs of prohibition to arrest the same proceeding in the superior court. In an action commenced by or in the name of the California Bank against the Los Angeles & Pacific Railway Company, a corporation, and others (in which action it is claimed Lewis A. Grant was afterwards substituted as the party plaintiff), the superior court appointed Herman Silver receiver of the property of the corporation. This order appointing Silver, it is conceded, was in excess of the jurisdiction of the court, and void, as was decided here in another case, in which it was collaterally assailed. Smith v. Railway Co. (Cal.) 34 Pac. 242. The superior court has nevertheless made orders, from time to time, awarding compensation to Silver for his services as receiver, and recently, upon his petition, the California Bank and Lewis A. Grant, the petitioners in these proceedings, were cited to appear before the superior court and show cause why that court should not make a further order fixing Silver's compensation as receiver for a period of time not covered by the orders previously made. In response to this citation the petitioners appeared and objected to the proceeding upon the ground that, the original order appointing Silver receiver being void, the court had no jurisdiction to allow compensation. This objection having been overruled, these applications for the writ of prohibition were filed. We are of the opinion that, whether the proceeding which the petitioners seek to arrest is or is not without or in excess of the jurisdiction of the superior court, the writ of prohibition ought not to issue, for the reason that the petitioners have a plain, speedy, and adequate remedy by appeal from any order the court may make by which they could be injuriously affected. The only order which the court proposes to make is one fix

ing the amount of the compensation. Such an order cannot, by itself, injure any one; but if, in addition to the order fixing the amount, the court should order it paid out of the fund in the receiver's hands, such order, under whatever name it might be designated, would be a final judgment upon a collateral matter arising out of the action, and would be appealable by any party interested in the fund. Trustees v. Greenough, 105 U. S. 527; Thompson v. Lumber Co. (Wash.) 32 Pac. 536. Or, if the court should order either the original or substituted plaintiff to pay the compensation allowed, that would be a final judgment from which an appeal would lie. If this order should not be appealable by reason of its amount being insufficient to confer appellate jurisdiction upon this court, it could be reviewed either upon certiorari or upon an appeal from the order settling the receiver's account. Any attempt to enforce its payment could be defended upon the want of jurisdiction in the court to make the order. There is nothing in conflict with this view in anything decided in Rochat v. Gee, 91 Cal. 355, 27 Pac. 670. The order held in that case to be nonappealable was merely a partial settlement of a receiver's account, and was not, by its terms, made payable by any party, or enforceable against any party by execution, or payable out of any fund. In other words, it lacked one essential element of a final judgment. And it was conceded in that case that there might be an appeal by a party aggrieved from an order allowing the final account of a receiver before a final judgment in the action as between the original parties. If we are right in the conclusion that any party aggrieved by an order of the court directing him to pay the receiver's compensation, or directing payment out of a fund in which he is interested, has an appeal from such order as from a final judgment in an independent proceeding collateral to the main action, and that he may stay all proceedings upon such order pending his appeal by filing a proper undertaking, there can be no need of a writ of prohibition in such a case, and it will not lie. See cases referred to in Havermeyer v. Superior Court, 84 Cal. 398, 24 Pac. 121. It is suggested, however, that an order fixing the receiver's compensation in this proceeding might conclude the rights of the petitioners as to costs to be included in the final judgment, or in a separate action by Silver to recover the amount allowed. But they certainly cannot be concluded by the order in any collateral proceeding or new action if the court has no jurisdiction to make it, and if the court has jurisdiction to make the order for any purpose its proceeding cannot be arrested by prohibition. Writs denied, and proceedings dismissed.

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

(106 Cal. 320)

PEOPLE v. MILLAN. (No. 21,150.) (Supreme Court of California. March 9, 1895.) FALSE PRETENSES-INDICTMENT.

1. Where an information charges the defendant with having obtained a specified amount of money by fraud, a verdict finding him "guilty as charged" is not defective in not stating the amount.

2. Under section 967 of the Penal Code, an information which charges one with obtaining money by fraud, but fails to allege a value to the money so taken, is good.

3. An information which charges the defendant with having obtained money under false representations, but which does not directly allege his knowledge of their falsity, though demurrable, is not fatally defective.

In bank. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Juan Millan, convicted of defrauding another of money, appeals. Affirmed.

Carroll Cook, for appellant. Atty. Gen. Hart, for the People.

PER CURIAM. The appellant was charged with defrauding another of money by reason of certain false and fraudulent pretenses and representations, and upon being convicted has appealed to this court upon the judgment roll alone. Among other things the information charged that the prosecuting witness was induced to loan the defendant, Millan, $831, lawful money of the United States, upon the representations that two certain bars of metal, which the defendant produced and turned over to the prosecuting witness as security for the loan, were gold, when in fact they were but brass.

1. The jury rendered a verdict in the following form: "We, the jury, find the defendant guilty as charged in the information." It is now claimed that the verdict is substantially defective in not finding the amount of money obtained by defendant from the fraud practiced. There is nothing in the point. The defendant is charged with obtaining $831, lawful money of the United States, and he was convicted of the "offense charged." The verdict, when taken in connection with the information, becomes as certain as to the amount of money obtained as if the amount were stated in the verdict in express terms. There is no question of degree involved in the offense of which the defendant was charged and upon trial.

2. It is claimed that the information is defective in failing to allege a value to the money taken, but it is not demurrable in this regard. The provisions of section 967 of the Penal Code are broad enough to include the offense here charged, and the allegation is directly in line with the provisions of that section. Neither do we think the information fatally defective in not containing a direct allegation as to the lack of knowledge upon the part of the defendant that the representations made by him were known to be false. The information was demurrable upon this ground, but no demurrer was interposed;

and, taken as a whole, we think it sufficiently charges the offense to support a verdict and judgment.

3. The remaining points of importance which are urged by appellant are opposed to the views of this court as declared in People v. Jordan, 66 Cal. 10, 4 Pac. 773, that case in principle being quite similar to the case at bar. For the foregoing reasons the judgment is affirmed.

BEATTY, C. J., did not participate.

(106 Cal. 286) PEOPLE v. FITCHPATRICK. (No. 21,189.) (Supreme Court of California. March 9, 1895.) ASSAULT-INTENT TO COMMIT MURDER-Self-De

FENSE.

1. The verdict of a jury against the defendant under a plea of self-defense, where the evidence is very close and the court has held that it is sufficient to support the verdict, will not be disturbed upon appeal.

2. The defendant's right of self-defense must be measured by the appearance presented to him by the acts of his assailant; and evidence of the latter's real intentions is immaterial.

Department 1. Appeal from superior court, Humboldt county; G. W. Hunter, Judge. B. Fitchpatrick, convicted of an assault with a deadly weapon, appeals. Affirmed.

E. W. Wilson and Frank McGowan, for appellant. Atty. Gen. Hart, for the People.

GAROUTTE, J. The appellant was charged with the offense of an assault with intent to commit murder, and was convicted of an assault with a deadly weapon. He appeals from the judgment and order denying his motion for a new trial.

1. The defendant shot the prosecuting witness with a pistol, the party shot having an ax in his hand at the time. The trouble between these parties was occasioned by the erection of a fence by the defendant upon the land of his tenant, the other party. Both men were angry and excited at the time of the shooting, and the defendant at the trial justified under the plea of self-defense. The party assaulted claims that he had no intention of using the ax to injure the defendant, but secured it, and had it in his possession, for the purpose of cutting down the fence. After a perusal of the evidence, we believe it to be a close case upon the plea of selfdefense; yet, as a jury found against the defendant upon this plea, and as the court subsequently held the evidence sufficient to support the verdict in this regard, we do not feel justified in disturbing the verdict for lack of evidence.

2. It is insisted that the court committed error in allowing the witness Campbell to testify that Pape (the party shot), when he was in his wagon, and in the road near the house, and near the defendant, but without his hearing, said he was going to "cut that fence down." It is unnecessary to say

whether or not this statement was a part of the res gestae. Conceding it was not, still the error of the court in admitting it was necessarily harmless. What Pape's intentions actually were was an immaterial matter. What he actually intended to do with the ax which he held in his right hand was likewise immaterial. The defendant was located between him and the fence, and whether he advanced with his ax to attack the fence or the defendant was not the question at issue; but the question at issue was, how did Pape's acts appear to the defendant, as a reasonable man? It was not a matter of fact, but a matter of appearance, which measured defendant's right of self-defense. For these reasons, Pape's prior statement that he was going to cut down the fence was immaterial and harmless evidence. Especially is this made plain when we con sider that the law was fully and fairly stated to the jury by the court, in accordance with the principle we have just laid down.

3. Upon an examination of the record, we find the law bearing upon the charge stated in the information fully and properly given to the jury, and there appears to be nothing demanding a new trial of the case. For the foregoing reasons, it is ordered that the judgment and order be affirmed.

We concur: HARRISON, J.; VAN FLEET, J.

(106 Cal. 208)

SHAIN v. SULLIVAN et al. (No. 15,738.) 1 (Supreme Court of California. March 8, 1895.) PROMISSORY NOTE-INDORSEMENT-REVIEW ON

APPEAL.

1. An indorsement may be made upon the face of the note with the same effect as upon the back.

2. The question of the genuineness of an indorsement on a note, which was introduced in evidence in the lower court without objection, cannot be raised for the first time upon appeal.

Department 1. Appeal from superior court, city and county of San Francisco; Jas. M. Troutt, Judge.

Action by Shain against Sullivan and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

Henry E. Highton, for appellants. Vincent Neale, for respondent.

No

without a jury, and the court found that the note had been indorsed to the plaintiff for value prior to its maturity, and rendered judgment in his favor. The defendants moved for a new trial upon the ground that the evidence was insufficient to justify the decision, and from the order denying their motion, and also from the judgment, they have appealed. At the trial the plaintiff introduced in evidence the promissory note set forth in the complaint, upon the face of which, at the left-hand end thereof, was written the names of the payees. No objection was made to the introduction of this instrument when it was offered, and it is recited in the statement that the whole of the face of the paper was read in evidence. other evidence was offered by either party, except the computation of the amount of interest due upon the note; and the court rendered its decision as aforesaid. The failure to deny the execution of the note rendered it unnecessary to make any proof thereof, and, as the defendants offered no evidence in support of the matters alleged in their special defense, the only issue before the court was the indorsement of the note to the plaintiff. The ordinary mode of indorsing a note is by the indorser writing his name upon the back thereof, but the indorsement may be made upon the face of the note with the same effect as if made upon the back. Bigelow, Bills & N. 135; Young v. Glover, 1 Ames, Bills & N. 228; Chitty, Bills, 227; Herring v. Woodhull, 29 Ill. 92; Partridge v. Davis, 20 Vt. 499; Haines v. Dubois, 30 N. J. Law, 259. In the case last cited the payee wrote his name under that of the maker, and it was held to be a sufficient indorsement. Section 3108 of the Civil Code declares: "One who writes his name upon a negotiable instrument, otherwise than as a maker or acceptor, and delivers it with his name thereon, to another person, is called an 'indorser,' and his act is called 'indorsement." " The production of the instrument by the plaintiff was evidence of its delivery to him, and, upon proof of the indorsement, of his right to collect the same from the defendants. The objection that there was no proof of the genuineness of the indorsement should have been made when the instrument was offered in evidence. Poorman v. Mills, 35 Cal. 121; Burnett v. Lyford, 93 Cal. 117, 28 Pac. 855. If the objection had been made at that time, the plaintiff might have been able to meet it with sufficient proof. A party cannot allow evidence to be introduced at the trial without objection, and afterwards upon an appeal make an objection which might have been obviated if he had made it when the evidence was offered. The judgment and order are affirmed.

We concur: GAROUTTE, J.; VAN FLEET J.

(106 Cal. 216)

TUCK. BOARD OF DIRECTORS OF HOME FOR ADULT BLIND.'

(No. 15,767.)

(Supreme Court of California.

March 8, 1895.) BLIND ASYLUM-EXPULSION OF INMATE.

An inmate of the Home for Adult Blind may be expelled therefrom for insubordination, in the exercise of the general supervisory power vested in the directors, without giving him notice or an opportunity to be heard, in the absence of any statute or by-law on the subject prescribing the grounds, mode, and requisites for the expulsion of inmates.

Department 1. Appeal from superior court, Alameda county; F. B. Ogden, Judge.

Application for a writ of mandate to compel the directors of the Home for Adult Blind to reinstate, as an inmate thereof, the petitioner, Herbert C. Tuck, who had been expelled From an ortherefrom for insubordination. der denying such application, petitioner ap peals. Affirmed.

Reddy, Campbell & Metson, for appellant. Atty. Gen. Hart., for respondent.

GAROUTTE, J. This is an application for a writ of mandate to compel the board of directors of the Home for Adult Blind to reinstate, as an inmate thereof, the petitioner, Herbert C. Tuck. It appears by his petition: That he was once an inmate of the home, regularly admitted, and there remained some months. That, during his sojourn at the home, he led a sober and industrious life, and obeyed all the by-laws enacted by the board of directors. That, to petitioner's knowledge, no charge of misconduct of any kind whatever was made against him, either in writing or orally; and that he was never informed of any charge against him prior to the introduction and adoption of the following resolution, which resolution deprived him of the benefit of the home: "Resolved, that Herbert Tuck be, and he is hereby, removed and expelled from this institution for insubordination and conduct prejudicial to the discipline, good order, and interest of the home." That he has asked to be reinstated, but the board of directors has denied his request. There appears to be no provision in the statute providing for the dismissal or expulsion of intractable Inmates. Neither do we find any by-law of the board of directors outlining the course to be pursued by the board in ridding the home of disreputable and intractable persons. It would certainly be the more orderly and businesslike way that there should be by-laws governing the course to be pursued by the board in such cases, and also governing the inmates in their conduct and behavior in the institution. Yet such is not the case. But, even in the absence of both statute and by-law, we have no doubt that the board of directors, under its' general supervisory power over the Institution, has a right to suspend, dismiss, or expel resident inmates who have been 'Rehearing denied.

guilty of disorderly and disreputable conduct.

Petitioner's complaint appears to be that he was not only expelled from the home without cause, but that he was expelled without a hearing, and thus deprived of any opportunity to make a defense to whatever charges may have been brought against him; and his counsel now claim that this course cannot be pursued, and that the expulsion was illegal, inasmuch as the petitioner, Tuck, had been legally admitted to the institution, and had become thereby entitled to its valuable privileges and benefits. Counsel asserts that, by virtue of his admission in the regular course, these valuable rights had attached to him, and had been so vested and fixed that he could not be deprived of them without notice and an opportunity to defend himself. The principle of law contended for is sound, but it does not fit the case. The petitioner has no such right or interest in the home as that he cannot be deprived of its benefits without notice. The statute gives him no right to a hearing before he may be expelled, and, in the absence of such a statThe ute or by-law, he has no such right. various acts of the legislature bearing upon the home say but little as to who may be entitled to admission, and nothing as to who may be expelled. As to expulsion especially, the whole matter seems to be left entirely within the control and discretion of the board of directors. By order entered upon the minutes of the board, it appears that the peti tioner was guilty of insubordination and misconduct, and the action of the board must be deemed final and conclusive, as far as this court is concerned. We know of no appeal from such a finding of fact. It is further argued that the board had no power to dismiss, except upon the proof of the violation of some statute or by-law pertaining to the government of the institution. We do not deem this contention sound. It appears that petitioner was expelled for insubordination, and that is a serious offense in such an institution. Rebellious conduct upon the part of inmates, if not stamped out, is fatal to the successful life of the institution; and, even in the absence of statute or by-law covering the facts of the particular case, the board of directors are amply clothed with implied powers sufficient to deal with the offender. For the foregoing reasons, the order appealed from is affirmed.