of Hilliker, had for a time taken charge of the property in the manner he did, would not necessarily render the holding of it as a pledge void as to creditors (Goldstein v. Nunan, 66 Cal. 542); the same rule being applicable in such a case with regard to delivery and change of possession as that which is required on a sale of personal property. (Woods v. Bugbey, 29 Cal. 466.) The order should be affirmed. SEARLS, C., and BELCHER, C. C., concurred. The COURT. For the reasons given in the foregoing opinion, the order is affirmed. [No. 11030. Department Two.- October 28, 1886.] TIDE LAND RECLAMATION COMPANY, RESPONDENT, V. THOMAS CUNNINGHAM, APPELLANT. - INSUFFICIENCY OF PRESUMPTION. On appeal NEW TRIAL APPEAL FROM ORDER GRANTING EVIDENCE TO SUPPORT VERDICT from an order granting a new trial in an action tried by a jury, where the record fails to show upon what ground the motion was granted, and the evidence is conflicting, it will be presumed that the motion was granted upon the ground.of the insufficiency of the evidence to support the verdict. ID. DISCRETION. It is within the discretion of the trial judge to grant or refuse a new trial in an action tried before a jury, where there is a substantial conflict in the evidence. APPEAL from an order of the Superior Court of San Joaquin County granting a new trial. The facts are stated in the opinion. W. L. Dudley, for Appellant. Terry & McKinne, for Respondent. SEARLS, C. This is an action to recover damages for the unlawful taking and conversion of certain horses, mules, and colts. Defendant had a verdict, which was, on motion of plaintiff, set aside, and a new trial granted. Defendant appeals from the order granting a new trial. The plaintiff is a corporation. Defendant was sheriff of the county of San Joaquin, and justified taking the property under and by virtue of a writ of attachment issued out of the District Court of the fifth judicial district in and for the county of San Joaquin, in a certain action wherein B. W. Owens and E. Moore were plaintiffs, and S. L. Ganow was defendant. The answer sets up that the animals belonged to said Ganow, and were seized under said writ of attachment, as his property; that after such seizure the said Owens and Moore obtained judgment against said Ganow, and thereupon the defendant herein, under and by virtue of an execution issued thereon, levied upon and sold a part of the property to satisfy said judgment. The order in the case does not show upon what ground the motion for a new trial was granted. The evidence as to the ownership of the animals was conflicting, and as every intendment must be indulged in favor of the action of the court below, we are authorized to presume that the motion was granted on the ground of the insufficiency of the evidence to support the verdict. (Irving v. Cunningham, 58 Cal. 306.) The court below, who has the witnesses before it, with an opportunity to judge from their manner and appearance and mode of testifying, as to the credit to be given to their statements, is in a much better position to judge of the facts than we are; it is therefore eminently proper that a wide discretion be given to the judge who presided at the trial, in granting and refusing new trials in cases involving a substantial conflict of evidence. In the present case we see no cause to infer an abuse of the discretion vested in the court. (Savage v. Sweeney, 63 Cal. 340; Bauder v. Tyrrel, 59 Cal. 99.) The order of the court below should be affirmed. BELCHER, C. C., and FOOTE, C., concurred. The COURT For the reasons given. in the foregoing opinion, the order is affirmed. [No. 11483. Department Two.- October 28, 1886.] J. A. SHEPHERD, RESPONDENT, V. JOHN W. JONES, PRACTICE ID. APPELLANT. TRIAL SPECIAL ISSUES The action was tried before a jury upon special issues, and the court, after argument, found certain other facts, and upon the verdict and findings rendered the judgment. The record on appeal did not show that any objection was taken to this method of procedure by either party. Held, that it would be presumed to have been adopted by consent. INSTRUCTION UNSUPPORTED BY EVIDENCE REFUSAL OF NOT ERRONEOUS. The refusal to give an instruction which states a correct principle of law, but which is unsupported by the evidence, is not erroneous. ID. - ID. FINDING EVIDENCE. - The finding that the defendant was not induced to execute the note in question by any false and fraudulent representation, held, supported by the evidence. INSUFFICIENCY OF EVIDENCE SPECIFICATION OF PARTICU LARS APPEAL. An objection that a certain finding is not supported by the evidence will not be considered on appeal, unless the statement contains a specification of the particulars in which the evidence is claimed to be insufficient. A specification that the court erred in ordering judgment for the respondent on the findings is not sufficient. APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial. The action was brought on a promissory note. The defendant in his answer denied the allegations of the complaint, and pleaded in avoidance of the note, — 1. Want of consideration; 2. Fraud in procuring the execution of the note; and 3. Rescission by agreement of the parties and the return to the payee of certain stock for which the note had been given. The further facts are stated in the opinion. J. C. Campbell, and D. S. Terry, for Appellant. J. A. Louttit, and Joseph H. Budd, for Respondent. BELCHER, C. C. This is an action upon a promissory note given for the purchase of stock in a mining company, and the appeal is from a judgment entered against the defendant, and from an order denying his motion for a new trial. The appeal from the judgment cannot be considered, for the reason that it was taken more than a year after the judgment was entered. The motion for a new trial was properly denied. The case was tried before a jury upon special issues, and the court then, after argument, found certain other facts, and upon the verdict and findings rendered the judgment. Conceding that this method of procedure was irregular, still no objection appears to have been taken to it by either side, and we must presume it was adopted by consent. The defendant requested the court to instruct the jury in effect that fraudulent representations may be made by acts as well as by words, and that if the note was obtained from defendant by false and fraudulent representations, then the verdict should be in favor of defendant. The court refused to instruct as requested, and the refusal is assigned as error. The instructions stated correct propositions of law, and were refused doubtless because there was no evidence to support them. If so, the refusal was proper. (Mecham v. McKay, 37 Cal. 154; Mendelsohn v. Anaheim L. Co., 40 Cal. 657.) The jury found that the defendant was not induced to execute the note by any false and fraudulent representations; and after carefully going over the record, we are unable to find any testimony tending to show that he It is true that shortly before the giving of the note was. the defendant, with the secretary and two of the directors of the company, went to the mine, and while they were standing on the surface of it the secretary picked up a small piece of gold, and one of the directors picked up another piece, and at another time the secretary showed the defendant some gold filings which, as he represented, had been washed out of the mine, and that defendant was thereby so impressed with the value of the mine that he concluded to take the stock and give his note. But there is no testimony to show that the small pieces of gold were not honestly found and picked up, or that the gold filings did not come from the mine as represented. Within a month after his purchase of the stock, the defendant became dissatisfied with his bargain and sought to rescind the contract. He returned the certificate which he had received to the secretary, and demanded back his note. The secretary took the certificate, and subsequently promised to get and return the note, but never did so. The court finds that before the promise to return was made the note had been, for a valuable consideration and by a resolution passed by the directors of the company, transferred and assigned to the plaintiff, and that he was then the owner and holder of it. It is objected that this finding is not supported by but is directly contrary to the evidence. Conceding this to be so, we cannot consider the objection, for the reason that there is no specification in the statement on which it can be rested. The attempted specification that "the court erred in ordering judgment for the plaintiff on the findings," is not sufficient for any purpose. On the whole, we find no error in the record of which the defendant can be heard to complain. The appeal from the judgment should therefore be dismissed, and the order denying a new trial should be affirmed. SEARLS, C., and FOOTE, C., concurred. LXXI. CAL.15 |