that particular, and to have intended thereby | 4. LIMITATION OF ACTIONS 142 to continue that provision in existence.

Section 1307 of the Civil Code, relating to pretermitted heirs, applies only where a testator "omits to provide in his will for any of his children, or for the issue of any deceased child." Here, as we have seen, there was a provision in the will, as reaffirmed, for the child, Howard Leonard, a provision which the testatrix is presumed to have had in mind in making the codicil. There was no omission to provide for him and consequently no basis for the claim that he is a pretermitted heir.

All of these rules are but applications of the paramount rule that the courts will always, if possible, ascertain the intent of the testator, and will carry out that intent so far as it is lawful. A republication of the will at a later date implies that the testator intended it to be operative as of that date, so far as its language would make it so, and so far as the law permitted; therefore the courts so hold. If a legacy was adeemed, a subsequent republication would not, of itself, carry any implication of an intent to give it again to the same person. Nothing but express words would do that. Hence the courts hold that such adeemed legacy is not renewed by a codicil. So, by like reasoning, where a legacy is given to a relation who afterward dies, leaving a surviving child to whom the legacy would pass by force of the law, a subsequent republication raises no inference of an intent to revoke the provision thus remaining operative, and accordingly the courts should infer an intent to leave it in force. See Estate of McCauley, 138 Cal. 435, 71 Pac. 512.

A letter to partners stating: "As to what I owe you, F., * * you will be paid. As for Jack, there are some things between us that need adjusting. It was my impression that the notes did not run out for another year"-was sufficient to support a finding that there was a new promise to pay.

3. APPEAL AND ERROR 907 (2)—APPEAL ON JUDGMENT ROLL-PRESUMPTIONS-EVIDENCE.

PROMISE-PROMISE TO ONE PARTNER.

A promise made to one partner to pay a partnership debt inures to the benefit of all the partners, and all may sue thereon. 5. LIMITATION OF ACTIONS ~179(3) — NEW PROMISE-AFTER TIME EXPIRED-PLEADING.

"a writing signed by the defendant, in considAn allegation that "on March 9, 1912," in eration of the foregoing facts, he acknowledged said indebtedness and promised to pay the same" is sufficient as pleading the legal effect of a new promise after limitations has expired, as a contract may be pleaded as to its legal effect, as well as in hæc verba.

Department 1. Appeal from Superior Court, City and County of San Francisco; John J. Van Nostrand, Judge.

Action by Frank W. Dixon and John F. Stebbins, copartners as Dixon & Stebbins, against Harry J. Bartlett. Judgment for plaintiffs, and defendant appeals. Affirmed.

Peck, Bunker & Cole, of San Francisco, for appellant. L. P. Forestell, of San Francisco, for respondents.

SHAW, J. The defendant appeals from the judgment upon the judgment roll alone. The complaint alleges that the defendant, in the state of Nevada, executed to the plaintiffs as copartners, a note of the following tenor: day after date I promise to pay Dixon & Steb"Round Mountain, Nevada, 12/9-'08. One bins, or order, $2,806.00 (twenty-eight hundred and six dollars), for value received, with interest at the rate of 1 per cent. per month until paid. Henry J. Bartlett"

and that thereafter, on March 9, 1912, and on September 23, 1909, in San Francisco, Cal., "in a writing signed by said defendant, in consideration of the foregoing facts, he acknowledged said indebtedness and promised to pay the same," but that he has not paid the same or any part thereof. The answer alleged that the action was barred by the twoyear statute of limitations. Code Civ. Proc. § 339, subd. 1.

Finding V is in part as follows:

"That on or about the 9th day of March, 1912, and on September 23, 1909, at the city and county of San Francisco, state of California, in writings signed by the defendant, Henry J. Bartlett, he acknowledged the indebtedness evidenced by said promissory note and promised to pay the as follows, to wit."

same.

*The letters above mentioned are

The finding then sets out a copy of the two letters referred to-one dated March 9, 1912; the other, September 23, 1909.

[1] It is unnecessary to state the contents of the letter of September 23, 1909. The note fell due on December 10, 1908, and, being executed in the state of Nevada, the statute of limitations would bar an action thereon at the expiration of two years thereafter. Code Civ. Proc. § 339, subd. 1. This letter was written from San Francisco and was signed

In an appeal on the judgment roll alone, within the two years. Where a new promise it is conclusively presumed that the evidence is made before the action on the original debt supports the findings. is barred, the debtor

"does not make himself liable a second time for the same debt, and the old promise is not merg ed in the new; he merely continues his original liability for a longer term. In other words, he merely waives so much of the period of limitations as has run in his favor." S. P. Co. v. Prosser, 122 Cal. 417, 52 Pac. 836, 55 Pac. 147. It starts anew the period of limitation. The action must, in that event, be upon the original obligation and not upon the new promise. McCormick v. Brown, 36 Cal. 180, 95 Am. Dec. 170.

the new promise is established. If it refers to the partnership note, it is an express promise to pay the same, although made to one of the partners alone. A promise made to one partner to pay a partnership debt inures to the benefit of all the partners, and all may sue thereon. Bates on Partnership, §§ 437, 1019.

The letter begins with the phrase, "Yours of the 22d received." This shows that it was a reply to a letter previously received by Bartlett from Dixon, the contents of which are not before us. It is conceivable that Dix

meaning of the defendant's letter plain to the effect above indicated. The statement in the paragraph quoted, that it was Bartlett's impression that the "notes" did not run out for another year, lends force to the idea that Dixon had referred to some other note due to Stebbins alone, to which the phrase quoted regarding a settlement with "Jack" related. This inference is somewhat strengthened by the contents of the letter of 1909, written to Stebbins, which refers to transactions between them in which it does not appear that Dixon had any interest. In the absence of the evidence we must presume that there was extrinsic evidence so explaining the meaning of the Bartlett letter as to make the promise to pay refer to the partnership note.

[2] This promise, therefore, if it be such, merely fixed September 23, 1909, as the beginning anew of the period of limitation ap-on's letter, or some other evidence, made the plicable to the previous note. That note was executed in Nevada, and the subsequent promise, made before it was outlawed, did not convert it into a contract executed in California. It remained a note executed out of the state, as before, and consequently the period of limitation applying to it was the two-year limitation applying to the original note. The action was begun more than two years after the date of this promise. The result is that, whether the period of limitation be computed from the maturity of the note or from the date of the promise in 1909, the action was barred before the complaint was filed. The judgment, therefore, if upheld, must be deemed to be based upon the new promise contained in the letter of March 9, 1912. This letter was addressed to Dixon. The greater part of it is devoted to subjects not connected with any indebtedness. After referring to the fact that he had failed in some enterprises which he had previously had on hand, but was working on other prospects, he wrote the paragraph containing the new promise. It reads as follows:

"As to what I owe you, Frank, you need never worry; every dollar due you will be paid. As to Jack, there are some things between us that need adjusting and a settlement. It was my impression that the notes did not run out for another year."

The case of White v. Williams, 1 Wilm. W. & H. Q. B. Reps. 52, was similar to the case at bar. There the two plaintiffs sued as partners on a partnership demand. The debtor had written a letter to White alone, saying "that he would call in a few days and pay White's account." It was not shown that White alone had any account to which the letter could refer. The court held that the letter was "sufficient to take the case out of the statute of limitations," but granted a new trial because there was no evidence of the amount of the debt. Upon the record before us we must conclude that the findings are sufficient to support the judgment.

[5] It is further contended that the com

The letter was signed by the defendant. There is nothing in it to indicate who was referred to as Jack; but, as the other letter set forth in the findings addressed the plain-plaint is founded on the note, and not on the tiff Stebbins as "Jack," it may be assumed that the reference was to Stebbins.

[3, 4] The question is whether this is a promise to pay the partnership debt owing by the defendant to the two plaintiffs. In considering an appeal on the judgment roll alone, it is conclusively presumed that the evidence supports the findings. The finding here is that by this letter the defendant promised to pay the note in question. If by the aid of any reasonably conceivable extrinsic evidence, the language of this promise to pay could have been shown to refer to the partnership note, and the reference to the settlement between the writer thereof and "Jack" to refer to another note or transaction, then

new promise, as is required when the new promise is made after the period of limitation has expired. A contract may be pleaded according to its legal effect, as well as in hæc verba. The allegation that "on March 9, 1912," in "a writing signed by said defendant, in consideration of the foregoing facts, he acknowledged said indebtedness and promised to pay the same," is sufficient as a pleading of the new promise of the defendant according to its legal effect. Porter v. Elam, 25 Cal. 292, 85 Am. Dec. 132. We find no error in the record.

The judgment is affirmed.

We concur: SLOSS, J.; LAWIOR, J.

ant on account of the contract, and other HAMILTON v. BAKER-HANSEN MFG. CO. sums for salaries paid, obligations incurred

(S. F. 7481.)

and profits which she would otherwise have

(Supreme Court of California. Nov. 26, 1917.) made. The affidavit for attachment states:

1. ATTACHMENT 107 - AFFIDAVIT-STATEMENT OF AMOUNT OF INDEBTEDNESS.

An affidavit for attachment, stating that, "in addition to certain claims for damages for breach of contract hereinafter referred to," defendant is indebted to plaintiff in the said action for $375, etc., sufficiently stated the amount of defendant's indebtedness, as required by Code Civ. Proc. § 538; the inclusion of the quoted words being merely surplusage, not rendering the amount of the indebtedness uncertain. 2. ATTACHMENT 248-MOTION TO DISSOLVE -QUESTIONS CONSIDERED.

A motion to dissolve an attachment cannot be turned into a demurrer to the complaint. 3. ATTACHMENT 248-MOTION TO DISSOLVE -QUESTIONS CONSIDERED.

On motion to dissolve an attachment for failure of the affidavit to state a basis therefor, the only question is whether the cause of action which is stated or attempted to be stated is one upon which attachment will issue. 4. ATTACHMENT 8 CLAIM AUTHORIZING ATTACHMENT-LIQUIDATED SUM.

"That in addition to certain claims for damages for breach of contract hereinafter referred to, defendant in said action is indebted to her in the sum of three hundred and seventy-five ($375.00) dollars * upon an implied contract for the direct payment of money, to wit: A written contract, and the plaintiff has paid the defendant under such contract three hundred and seventy-five dollars on account of the consideration of said contract, and the defendant has breached such contract and has not performed the same in whole or in any part, and the plaintiff is entitled to the repayment of said sum. *

[1] The first ground of defendant's motion to dissolve the attachment is that the affidavit does not state the amount of defendant's indebtedness, as required by section 538, Code of Civil Procedure, because of the inclusion in the affidavit of the words, "in addition to certain claims for damages for breach of contract hereinafter referred to." It is claimed that this renders the amount of the indebtedness uncertain. The contenThe affidavit itself tion is without merit. shows very clearly that the sum for which the attachment is sought is $375. The in5. ATTACHMENT 14-NATURE OF CLAIM-timation that the plaintiff is also claiming PORTION OF AMOUNT SUED FOR.

As plaintiff who sued for breach of contract upon which he advanced money and received nothing could recover as damages money so paid, the sum was certain and liquidated upon which attachment properly issued.

That plaintiff has in his complaint demanded other sums than the liquidated amount attached is immaterial, as the indebtedness set up in the affidavit of attachment need not include all the damages claimed in the complaint. 6. ATTACHMENT 103 - AFFIDAVIT - SUFFICIENCY-NATURE OF CAUSE OF ACTION.

The statement in the affidavit of attachment that the money was due upon an implied contract, when in fact it was due upon an express contract, did not make the affidavit defective, as it need not appear in the affidavit whether the contract is express or implied, so long as it is a contract for the direct payment of money, and if that is stated, any further recital is only surplusage, and may be disregarded.

Department 1. Appeal from Superior Court, Alameda County; Everett J. Brown, Judge.

Action by E. B. Hamilton against the Baker-Hansen Manufacturing Company. From an order refusing to dissolve an attachment, defendant appeals. Affirmed.

Clayberg & Whitmore and H. L. Clayberg, all of San Francisco, for appellant. P. J. O'Dea and Louis Horwitz, both of San Francisco, for respondent.

LAWLOR, J. This is an appeal from an order refusing to dissolve an attachment. The complaint shows the action to be one for damages for breach of a written contract between the parties for the conveyance of certain patent rights and delivery of two automobile starters by defendant to plaintiff. It is alleged that defendant has entirely failed to perform the contract or any part thereof. As damages the plaintiff claims $375 as having been advanced to the defend

additional damages, for which no attachment is asked, is mere surplusage, and in no way throws any doubt upon the amount for which the attachment is requested. See Bank of California v. Boyd, 86 Cal. 386, 388, 25 Pac. 20.

[2-6] The second ground of the motion is that the affidavit discloses no basis for attachment "in that it alleges that $375 is due on an implied contract, while the complaint is based on an express contract and the action is for a reformation of said contract and damages for the breach thereof." A mo

tion to dissolve an attachment cannot be turned into a demurrer to the complaint. Kohler v. Agassiz, 99 Cal. 9, 33 Pac. 741; Hale Bros. v. Milliken, 142 Cal. 134, 75 Pac. 653. The only question is whether the cause of action which is stated or attempted to be stated is one upon which an attachment will issue. Here the complaint sets out a breach of an express contract. One of the items of damage is the $375 paid to the defendant, which is sought to be recovered, by reason of a failure of consideration. A plaintiff who sues for breach of a contract upon which he has advanced money and received nothing in return may recover as damages the money so paid. This sum is certain and liquidated; as to it an attachment will therefore issue. Santa Clara, etc., Fuel Co. v. Tuck, 53 Cal. 304. It is immaterial that plaintiff has also demanded in the complaint other sums, which are not liquidated, and to which she may or may not be entitled. The indebtedness set up in the affidavit need not include all the damages claimed in the com

Appeal from Superior Court, Santa Clara M. Clarke, Deputy Atty. Gen., for the PeoCounty; P. F. Gosbey, Judge.

213(1) - ADMISSIONS -COM

of avoiding trouble and litigation, amicably to
Conduct of plaintiffs in seeking, for purpose
settle with defendant the difficulty of his ob-
struction of a highway, and in requesting of him
a written grant of right of way, will not be con-
over the road.
sidered an admission that they had no right
5. HIGHWAYS 160(2) — ACTION FOR OB-

company with two other persons during the [4. EVIDENCE
day, and had several times displayed money PROMISE. •
in their presence. In response to the re-
quest, he went to the rear of the saloon
where, he says, this appellant jumped upon
his back, grabbed him around the neck and
choked him, saying, "Give me what you got;
come on and keep still;" that he tried to
throw the man off, but was unsuccessful.
He testified that he had at the time money
in a pocketbook; also a $10 bill and $7 or $8
in silver, also a watch, razor, and pocket

knife. When asked what became of that
property, he said, "Well, these men I think
took it, because when I came to why I didn't
have none of it." He further testified that
the taking of the property was without his
consent, and that he did not give it to the
men, but that when he "came to" he found
himself lying in the back end of the build-
ing. Then, he testified, as he sat up the
three men came back and said, "You have
got more money, damn you, give it up," and
that they kicked him and broke two ribs.
Without quoting from the testimony further,
it must at once appear that there was ample
evidence showing not only that the crime of
robbery was committed, but that the appel-
lant here was an active participant therein.
[2] 2. Defendant at the time he presented
his motion for a new trial asked for a con-
tinuance of one week of that matter in order
that he might go from San Bernardino to
Needles to obtain affidavits as to alleged
newly discovered evidence. The matter of
allowing a continuance was one which rest-
ed in the discretion of the trial judge, and
from an examination of the representations
made orally by counsel requesting the con-
tinuance, we cannot perceive that this discre-
tion was in any wise abused.

The judgment and order are affirmed.

STRUCTING-PARTIES.

The wife of one obstructing a highway need not be joined in action to enjoin the obstruction merely because she is a co-owner with him of the adjoining premises. 6. JURY 14(12)-RIGHT TO JURY-INJUNCAction to enjoin obstruction of highway being one in equity, defendant is not entitled to a jury.

TION.

Appeal from Superior Court, El Dorado County; N. D. Arnot, Judge. Action by Edward G. Sherwood and others against George S. Ahart. From adverse judgment and order, defendant appeals. Affirmed.

Wm. F. Bray, of Placerville, and H. C. Jerrett, for appellant. Abe Darlington, of Placerville, for respondents.

BURNETT, J. The action was to enjoin defendant from interfering with the free use and occupation of a certain highway by plaintiffs, and from interfering with or preventing plaintiff's or either of them from entering upon any portion of said way and repairing the same. The theory upon which the action was tried is that said way constitutes a public highway, and that said plaintiff's were especially damaged by reason of the interference on the part of the defendant with the use and enjoyment of the same on the part of the former. There is, however, no allegation in the complaint that said way constitutes a public highway, it being designated as a "wagon road, common

We concur: CONREY, P. J.; WORKS, ly known as Brewer's road," and it was Judge pro tem.

alleged:

"That plaintiffs have traveled said wagon road known as Brewer's road for more than ten session and occupation of a right of way over years last past, and are the owners and in possaid northeast quarter of section 35 along and over the course of said Brewer's road, and are entitled to travel and pass over the same at any and all times, and it is necessary for them and each of them to travel the said road in

order to reach the said city of Placerville."

It is thus to be seen that plaintiffs presented, by their complaint, the issue as to their ownership merely of a right of way, but, as before stated, the case was tried without objection upon the theory that said wagon road constituted a public highway and had been used as such for many years, and the court so found, as the following finding discloses:

"That said road known as Brewer's road has been used and traveled by the general public as a public highway continuously since the year 1860."