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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 atfirmed.

(106 Cal. 329) WICKERSHAM v. CRITTENDEN et al.

(No. 19,350.)? (Supreme Court of California. March 9, 1895.) CORPORATIONE-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 pro cured to be paid by the bank for attorney's services rendered solely for his own benefit in a litigation between bimself 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. Alfirmed.

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

to the bank for certain attorneys' fees in cer. tain 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 de fense 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 stoekholders, for the control of the bank. The bank bad no real interest in the contest. The services of the attorneys were rendered for the bene fit 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 80 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 a verred 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 reques! would have been useless, and would have been refused; and it is contended by appellants that the court erred in refusing to al. low 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, be cause 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 respond. ent should have made the futile request. There are no other points necessary to be noticed in addition to those noticed in said case No. 19,319, The judgment and order are affirmed

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.

(136 Cal. 324)

ing the amount of the compensation. Such GRANT v. SUPERIOR COURT OF LOS AN- an order cannot, by itself, injure any one; GELES. (No. 15,859.)

but if, in addition to the order fixing the CALIFORNIA BANK v. SAME. (No.

amount, the court should order it paid out of 15,860.)

the fund in the receiver's hands, such order, (Supreme Court of California. March 9, 1895.)

under whatever name it might be designated,

would be a final judgment upon a collateral WRIT OF PROHIBITION-ORDER OF COURT FIXING RECEIVER'S COMPENSATION.

matter arising out of the action, and would An order of court fixing a receiver's com- be appealable by any party interested in the pensation, being subject to review upon appeal fund. Trustees v. Greenough, 105 U. S. 527; or certiorari, will not be arrested by a writ of

Thompson v. Lumber Co. (Wash.) 32 Pac. 536. prohibition.

Or, if the court should order either the orig. In bank.

inal or substituted plaintiff to pay the comSeparate petitions of Lewis A. Grant and

pensation allowed, that would be a final the California Bank for a writ of prohibition

judgment from which an appeal would lie. to arrest the proceeding of the superior court

If this order should not be appealable by reaof Los Angeles, granting an order fixing the

son of its amount being insufficient to confer compensation of Herman Silver, as receiver appellate jurisdiction upon this court, it could of the Los Angeles & Pacific Railway Com

be reviewed either upon certiorari or upon pany. Writ denied.

an appeal from the order settling the reWhite & Munroe, for petitioner. Wellborn ceiver's account. Any attempt to enforce its & Hutton, for respondent.

payment could be defended upon the want

of jurisdiction in the court to make the order. BEATTY, C. J. These are separate appli- There is nothing in conflict with this view cations for writs of prohibition to arrest the

in anything decided in Rochat v.Gee, 91 Cal. same proceeding in the superior court. In 355, 27 Pac. 670. The order held in that case an action commenced by or in the name of to be nonappealable was merely a partial setthe California Bank against the Los Angeles tlement of a receiver's account, and was not, & Pacific Railway Company, a corporation, by its terms, made payable by any party, or and others (in which action it is claimed enforceable against any party by execution, Lewis A. Grant was afterwards substituted or payable out of any fund. In other words, as the party plaintiff), the superior court ap- it lacked one essential element of a final pointed Herman Silver receiver of the prop- | judgment. And it was conceded in that case erty of the corporation. This order appoint- that there might be an appeal by a party aging Silver, it is conceded, was in excess of grieved from an order allowing the final acthe jurisdiction of the court, and void, as was count of a receiver before a final judgment decided here in another case, in which it in the action as between the original parties. was collaterally assailed. Smith v. Railway If we are right in the conclusion that any Co. (Cal.) 34 Pac. 242. The superior court party aggrieved by an order of the court dihas nevertheless made orders, from time to recting him to pay the receiver's compensatime, awarding compensation to Silver for tion, or directing payment out of a fund in his services as receiver, and recently, upon which he is interested, has an appeal from his petition, the California Bank and Lewis such order as from a final judgment in an inA. Grant, the petitioners in these proceed- dependent proceeding collateral to the main ings, were cited to appear before the superior action, and that he may stay all proceedings court and show cause why that court should upon such order pending his appeal by filing not make a further order fixing Silver's com- a proper undertaking, there can be no need pensation as receiver for a period of time of a writ of prohibition in such a case, and not covered by the orders previously made. it will not lie. See cases referred to in Hav. In response to this citation the petitioners | ermeyer v. Superior Court, 84 Cal. 398, 24 appeared and objected to the proceeding up- Pac. 121. It is suggested, however, that an on the ground that, the original order appoint- order fixing the receiver's compensation in ing Silver receiver being void, the court had this proceeding might conclude the rights of no jurisdiction to allow compensation. This the petitioners as to costs to be included in objection having been overruled, these appli- the final judgment, or in a separate action by cations for the writ of prohibition were filed. Silver to recover the amount allowed. But We are of the opinion that, whether the pro- they certainly cannot be concluded by the orceeding which the petitioners seek to arrest der in any collateral proceeding or new acis or is not without or in excess of the juris- tion if the court has no jurisdiction to make diction of the superior court, the writ of pro- it, and if the court has jurisdiction to make hibition ought not to issue, for the reason the order for any purpose its proceeding canthat the petitioners have a plain, speedy, and not be arrested by prohibition. Writs de adequate remedy by appeal from any order nied, and proceedings dismissed. the court may make by which they could be injuriously affected. The only order We concur: HARRISON, J.; GAROUTTE which the court proposes to make is one fix- | J.; McFARLAND, J.

(106 Cal. 320)

and, taken as a whole, we think it sufficiently PEOPLE v. MILLAN. (No. 21,150.) charges the offense to support a verdict and (Supreme Court of California. March 9, 1895.)

judgment. FALSE PRETENSES-INDICTMENT.

3. The remaining points of importance 1. Where an information charges the de

which are urged by appellant are opposed to fendant with having obtained a specified amount the views of this court as declared in People of money by fraud, a verdict finding him "guilty

v. Jordan, 66 Cal. 10, 4 Pac. 773, that case as charged” is not defective in not stating the

in principle being quite similar to the case at amount.

2. Under section 967 of the Penal Code, an bar. For the foregoing reasons the judginformation which charges one with obtaining ment is affirmed. money by fraud, but fails to allege a value to the money so taken, is good. 3. An information which charges the de

BEATTY, C. J., did not participate. fendant with having obtained money under false representations, but which does not directly allege his knowledge of their falsity, though de

(106 Cal. 286) murrable, is not fatally defective.

PEOPLE v. FITCHPATRICK. (No. 21,189.) In bank. Appeal from superior court, Ven- (Supreme Court of California. March 9, 1895.) tura county; B. T. Williams, Judge.

ASSAULT-INTENT TO COMMIT MURDER-SELF-DEJuan Millan, convicted of defrauding an

FENSE. other of money, appeals. Affirmed.

1. The verdict of a jury against the defend

ant under a plea of self-defense, where the eviCarroll Cook, for appellant. Atty. Gen.

dence is very close and the court has held that Hart, for the People.

it is sufficient to support the verdict, will not be disturbed upon appeal.

2. The defendant's right of self-defense PER CURIAM. The appellant was char

must be measured by the appearance presented ged with defrauding another of money by to him by the acts of his assailant; and evireason of certain false and fraudulent pre- dence of the latter's real intentions is immateri

al. tenses and representations, and upon being convicted has appealed to this court upon the Department 1. Appeal from superior court, judgment roll alone. Among other things the Humboldt county; G. W. Hunter, Judge. information charged that the prosecuting wit- B. Fitchpatrick, convicted of an assault ness was induced to loan the defendant, Mil- with a deadly weapon, appeals. Affirmed. lan, $831, lawful money of the United States,

E. W. Wilson and Frank McGowan, for upon the representations that two certain

appellant. Atty. Gen. Hart, for the People. bars of metal, which the defendant produced and turned over to the prosecuting witness as GAROUTTE, J. The appellant was charsecurity for the loan, were gold, when in fact

ged with the offense of an assault with inthey were but brass.

tent to commit murder, and was convicted of 1. The jury rendered a verdict in the fol

an assault with a deadly weapon. He aplowing form: “We, the jury, find the defend

peals from the judgment and order denying ant guilty as charged in the information." It his motion for a new trial. is now claimed that the verdict is substan

1. The defendant shot the prosecuting wittially defective in not finding the amount of ness with a pistol, the party shot having an money obtained by defendant from the fraud ax in his hand at the time. The trouble bepracticed. There is nothing in the point. tween these parties was occasioned by the The defendant is charged with obtaining erection of a fence by the defendant upon $831, lawful money of the United States, and the land of his tenant, the other party. Both he was convicted of the "offense charged.” men were angry and excited at the time of The verdict, when taken in connection with the shooting, and the defendant at the trial the information, becomes as certain as to the justified under the plea of self-defense. The amount of money obtained as if the amount party assaulted claims that he had no intenwere stated in the verdict in express terms. tion of using the ax to injure the defendant, There is no question of degree involved in but secured it, and had it in his possession, the offense of which the defendant was char- for the purpose of cutting down the fence. ged and upon trial.

After a perusal of the evidence, we believe 2. It is claimed that the information is it to be a close case upon the plea of selfdefective in failing to allege a value to the defense; yet, as a jury found against the money taken, but it is not demurrable in this defendant upon this plea, and as the court regard. The provisions of section 967 of the subsequently held the evidence sufficient to Penal Code are broad enough to include the support the verdict in this regard, we do not offense here charged, and the allegation is di- feel justified in disturbing the verdict for rectly in line with the provisions of that sec- lack of evidence. tion. Neither do we think the information 2. It is insisted that the court committed fatally defective in not containing a direct error in allowing the witness Campbell to allegation as to the lack of knowledge upon testify that Pape (the party shot), when ne the part of the defendant that the representa- was in his wagon, and in the road near the tions made by him were known to be false. house, and near the defendant, but without The information was demurrable upon this his hearing, said he was going to "cut that ground, but no demurrer was interposed; fence down." It is unnecessary to say whether or not this statement was a part of without a jury, and the court found that the the res gestae. Conceding it was not, still note had been indorsed to the plaintiff for the error of the court in admitting it was value prior to its maturity, and rendered necessarily harmless. What Pape's inten- judgment in his favor. The defendants more tions actually were was an immaterial mat- ed for a new trial upon the ground that the ter. What he actually intended to do with evidence was insufficient to justify the deci. the ax which he held in his right band was sion, and from the order denying their molikewise immaterial. The defendant was lo- tion, and also from the judgment, they have cated between him and the fence, and appealed. At the trial the plaintiff introwhether he advanced with his ax to attack duced in evidence the proinissory note set the fence or the defendant was not the ques- forth in the complaint, upon the face of tion at issue; but the question at issue was, which, at the left-hand end thereof, was how did Pape's acts appear to the defendant, written the names of the payees. No objecas a reasonable man? It was not a mat- tion was made to the introduction of this inter of fact, but a matter of appearance, strument when it was offered, and it is rewhich measured defendant's right of self-de- cited in the statement that the whole of the fense. For these reasons, Pape's prior state- face of the paper was read in evidence. No ment that he was going to cut down the other evidence was offered by either party, fence was immaterial and harmless evidence. except the computation of the amount of inEspecially is this made plain when we con. terest due upon the note; and the court rensider that the law was fully and fairly stat- dered its decision as aforesaid. The failure ed to the jury by the court, in accordance to deny the execution of the note rendered it with the principle we have just laid down. unnecessary to make any proof thereof, and,

3. Upon an examination of the record, we as the defendants offered no evidence in supfind the law bearing upon the charge stated port of the matters alleged in their special in the information fully and properly given defense, the only issue before the court was to the jury, and there appears to be nothing the indorsement of the note to the plaintiff. demanding a new trial of the case. For the The ordinary mode of indorsing a note is foregoing reasons, it is ordered that the by the indorser writing his name upon the judgment and order be affirmed.

back thereof, but the indorsement may be

made upon the face of the note with the Weconcur: HARRISON, J.; VAN FLEET, same effect as if made upon the back. BigeJ.

low, Bills & N. 135; Young v. Glover, 1 Ames, Bills & N. 228; Chitty, Bills, 227; Herring v.

Woodhull, 29 Ill. 92; Partridge v. Davis, 20 (106 Cal. 208)

Vt. 499; Haines v. Dubois, 30 N. J. Law, SHAIN V. SULLIVAN et al. (No. 15,738.) 1

259. In the case last cited the payee wrote (Supreme Court of California. March 8, 1895.)

his name under that of the maker, and it

was held to be a sufficient indorsement. Sec. PROMISSORY NOTE-INDORSEMENT-REVIEW Ox APPEAL.

tion 3108 of the Civil Code declares: “One 1. An indorsement may be made upon the who writes his name upon a negotiable inface of the note with the same effect as upon the strument, otherwise than as a maker or acback.

ceptor, and delivers it with his name thereon, 2. The question of the genuineness of an indorsement on a note, wbich was introduced in

to another person, is called an 'indorser,' and evidence in the lower court without objection, his act is called 'indorsement.'” The produccannot be raised for the first time upon appeal. tion of the instrument by the plaintiff was Department 1. Appeal from superior court,

evidence of its delivery to him, and, upon city and county of San Francisco; Jas. M.

proof of the indorsement, of his right to colTroutt, Judge.

lect the same from the defendants. The obAction by Shain against Sullivan and an

jection that there was no proof of the genuother. From a judgment for plaintiff, and

ineness of the indorsement should have been an order denying a new trial, defendants ap

made when the instrument was offered in peal. Affirmed.

evidence. Poorman V. Mills, 35 Cal. 121;

Burnett v. Lyford, 93 Cal. 117, 28 Pac. 855. Henry E. Highton, for appellants. Vin

If the objection bad been made at that time, cent Neale, for respondent.

the plaintiff might have been able to meet it

with sufficient proof. A party cannot allow HARRISON, J. Action by the plaintiff as

evidence to be introduced at the trial withthe indorsee of a promissory note executed out objection, and afterwards upon an appeal by the defendants. A copy of the note is

make an objection which might have been set out in the complaint, and its execution obviated if he had made it when the evl. is not denied by the defendants, but in dence was offered. The judgment and order their answer they deny the indorsement to

are affirmed. the plaintiff, and in a separate answer allege certain matters impeaching the consid- We concur: GAROUTTE, J.; VAN FLDET eration of the note. The case was tried J.

1 Rehearing denied.

(106 Cal. 216)

guilty of disorderly and disreputable conTUCK Y. BOARD OF DIRECTORS OF

duct. HOME FOR ADULT BLIND.

Petitioner's complaint appears to be that (No. 15,767.)

he was not only expelled from the home

without cause, but that he was expelled with. (Supreme Court of California. March 8, 1895.)

out a hearing, and thus deprived of any opBLIND ASYLUM-EXPULSION OF INMATE.

portunity to make a defense to whatever An inmate of the Home for Adult Blind

charges may have been brought against him; may be expelled therefrom for insubordination,

and his counsel now claim that this course in the exercise of the general supervisory power vested in the directors, without giving him cannot be pursued, and that the expulsion notice or an opportunity to be heard, in the ab

was illegal, inasmuch as the petitioner, Tuck, sence of any statute or by-law on the subject

had been legally admitted to the institution, prescribing the grounds, mode, and requisites for the expulsion of inmates.

and had become thereby entitled to its valua

ble privileges and benefits. Counsel asserts Department 1. Appeal from superior court,

that, by virtue of his admission in the reguAlameda county; F. B. Ogden, Judge.

lar course, these valuable rights had attached Application for a writof mandate to compel

to him, and had been so vested and fixed the directors of the Home for Adult Blind to

that he could not be deprived of them withreinstate, as an inmate thereof, the petition

out notice and an opportunity to defend him. er, Herbert C. Tuck, who had been expelled

self. The principle of law contended for is therefrom for insubordination. From an or

sound, but it does not fit the case. The petider denying such application, petitioner ap

tioner has no such right or interest in the peals. Affirmed.

home as that he cannot be deprived of its Reddy, Campbell & Metson, for appellant. benefits without notice. The statute gives Atty. Gen. Hart, for respondent.

him no right to a hearing before he may be

expelled, and, in the absence of such a stat. GARVUTTE, J. This is an application for ute or by-law, he has no such right. The & writ of mandate to compel the board of di- various acts of the legislature bearing upon rectors of the Home for Adult Blind to re- the home say but little as to who may be eninstate, as an inmate thereof, the petitioner, titled to admission, and nothing as to who Herbert C. Tuck. It appears by bis petition: may be expelled. As to expulsion especially, That he was once an inmate of the home, the whole matter seems to be left entirely regularly admitted, and there remained some within the control and discretion of the board months. That, during his sojourn at the of directors. By order entered upon the min. home, he led a sober and industrious life, utes of the board, it appears that the peti. and obeyed all the by-laws enacted by the tioner was guilty of insubordination and misboard of directors. That, to petitioner's conduct, and the action of the board must be knowledge, no charge of misconduct of any deemed final and conclusive, as far as this kind whatever was made against him, ei- court is concerned. We know of no appeal ther in writing or orally; and that he was from such a finding of fact. It is further never informed of any charge against him argued that the board had no power to disprior to the introduction and adoption of the miss, except upon the proof of the violation following resolution, which resolution de of some statute or by-law pertaining to the prived him of the benefit of the home: “Re government of the institution. We do not solved, that Herbert Tuck be, and he is here deem this contention sound. It appears that by, removed and expelled from this institu- petitioner was expelled for insubordination, tion for insubordination and conduct preju- and that is a serious offense in such an insti. dicial to the discipline, good order, and inter- tution. Rebellious conduct upon the part of est of the home." That he has asked to be inmates, if not stamped out, is fatal to the reinstated, but the board of directors has de successful life of the institution; and, even nied his request. There appears to be no in the absence of statute or by-law covering provision in the statute providing for the the facts of the particular case, the board of dismissal or expulsion of intractable inmates. directors are amply clothed with implied Neither do we find any by-law of the board powers sufficient to deal with the offender. of directors outlining the course to be pur- For the foregoing reasons, the order appealed sued by the board in ridding the home of dis

from is affirmed.
reputable and intractable persons. It would
certainly be the more orderly and business-

We
concur: HARRISON, J.;

VAN like way that there should be by-laws govern- FLEET, J. ing the course to be pursued by the board in such cases, and also governing the inmates

(106 Cal. 211) in their conduct and behavior in the institution. Yet such is not the case.

PEOPLE Y. VERDEGREEN. (No. 21,187.)

But, even in the absence of both statute and by-law, we

(Supreme Court of California. March 8, 1895.) have no doubt that the board of directors,

ASSAULT WITH INTENT TO RAPE. under its' general supervisory power over the

An assault upon the person of a girl un

der the age of consent, as fixed by the Penal Institution, has a right to suspend, dismiss,

Code prescribing what shall constitute rape, or expel resident inmates who have been with the intention of having sexual intercourse

* Rehearing denied

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