response which the plaintiff made in answer to the inquiry as to what was the consideration for the delivery of the check to him is not now open to the objection that it was a mere legal conclusion and of no weight or value as evidence. The case of Winslow v. Glendale L. & P. Co., 164 Cal. 688 [130 Pac. 427], cited by the appellant in support of its contention in this regard, in nowise supports it. There a certain witness was asked for whom he was working, and over the objection of the defendant was permitted to testify that he was "working for the Glendale Light and Power Company." It was held that this was a conclusion of the witness and as such inadmissible over objection in accordance with long and well-settled rules of evidence. But no such objection was urged in the instant case, nor was any attempt made by cross-examination or otherwise to show that the plaintiff was not the attorney of the person delivering him the check or that he had not performed or was not to perform professional services as such for the full or even greater value than the amount of the check. On the contrary, it stands as an admitted fact in the action that the plaintiff was at the time the attorney of Goldstein and that as to a considerable portion of the amount named in said check it was given to him on account of his services as such attorney. To that extent at least the check was given him for value. Nor do we think that the effect of this evidence was materially weakened by the subsequent showing made by the defendant upon the reading of the plaintiff's deposition that at the time the check was given to the plaintiff he was requested to pay certain obligations of his client, Goldstein. This portion of the transaction must be regarded from the viewpoint and attitude of the parties as disclosed by the meager record before us. Goldstein was in jail; the check in question was drawn upon the Hollywood Bank. He had overdrawn his account at the Hellman Bank, which was neither the bank upon which this check was drawn nor the bank where the plaintiff had his own checking account. [3] It is not an unreasonable inference that the intention of these two parties to this transaction was that the plaintiff should do that which the undisputed evidence shows he actually did do, viz., that he should deposit this check to his credit in his own bank and issue his own checks in payment of his client's obligations. If this was the actual understanding of the parties, then the plain

tiff was as a result thereof substantially in the position of exchanging his own checks for the check given to him by his client. In this attitude he would not be merely acting as his client's disbursing agent but rather in the position of one who has given value for value, as much so, in fact, as he would be if he had either delivered directly to his client his own checks in return for that indorsed and delivered to him or if he had paid to the indorser of the latter its value in money. (Matlock v. Scheuerman, 51 Or. 49 [17 L. R. A. (N. S.) 747, 93 Pac. 823]; Russell v. Hadduck, 18 Ill. (3 Gilm.) 233 [44 Am. Dec. 693]; Adams v. Soule, 33 Vt. 538.) The trial court was entitled to draw these inferences from the evidence in this case, and apparently did so, in view of its finding that the plaintiff was not the agent of Goldstein in receiving said check for the purposes for which he did receive it and in the presentation of the same for payment. The trial court also found upon sufficient evidence that the plaintiff had received the check in question in good faith and without notice of its infirmities. We are not disposed to disturb these findings upon this appeal.

The appellant makes the further contention that the check in question, having been made and delivered to Goldstein Company by the defendant on December 19, 1917, and not having been indorsed or delivered by its said payee to the plaintiff until March 7, 1918, the check was a stale check of which the respondent could not be held to be a holder in due course. In support of this contention the appellant cites us to sections 3134 and 3266b of the Civil Code (Stats. 1917, pp. 1540, 1560), which require that instruments payable on demand should be negotiated within a reasonable time. No evidence was presented in this case by either party showing the cause of the delay in presentment of this check nor by the defendant offering any proof as to any loss occasioned to it by the delay. On the contrary, the evidence clearly showed that had said check been presented for payment immediately after its issuance it would have been paid by the bank upon which it was drawn, since the defendant did not discover that it had been issued through its misapprehension and mistake as to the amount due the Goldstein Company until just before the date of its actual presentation, and did not, prior to such discovery, stop its payment.

Section 3265b of the Civil Code, as enacted in 1917 (Stats. 1917, p. 1559), reads as follows: "A check must be presented for payment within a reasonable time after its issuance or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay." This present section of the Civil Code is substantially identical with section 3255 thereof as it stood prior to the passage of the Uniform Negotiable Instruments Act of 1917 (Stats. 1917, p. 1531), which embraces the foregoing provision in its present form. Both the former and present provisions of the Civil Code upon this subject were taken in almost their identical language from the Field draft of the New York Civil Code, section 1826, which was itself based upon the lawmerchant as it had long existed, relating to delays in the presentment of checks for payment. The supreme court of the United States in the case of Merchants' Bank v. State Bank, 10 Wall. (U. S.) 604 [19 L. Ed. 1008], and Bull v. Bank of Kasson, 123 U. S. 105 [31 L. Ed. 97, 8 Sup. Ct. Rep. 62, see, also, Rose's U. S. Notes], declare the rule of the law-merchant to be that the drawer of a check is only entitled to be discharged from liability thereon to the extent that he can show that he has sustained damage or been prejudiced in his rights by the delay. (See, also, Story on Promissory Notes, sec. 491.) [4] In the case of German American Bank v. Wright, 85 Wash. 460 [Ann. Cas. 1917D, 381, 148 Pac. 769], the supreme court of Washington, construing sections of the Uniform Negotiable Instruments Act of that state, which are identical with the sections of the like act in this state, declares the rule to be that the burden is upon the drawer of a check, which has been delayed in presentment, to show that he has been injured by the delay. No such proof having been presented by the appellant in the instant case, its contention in this regard is without merit.

Judgment affirmed.

Richards, J., pro tem., Wilbur, J., Lawlor, J., Waste, J., Sloane, J., Shaw, C. J., and Shurtleff, J., concurred.

Rehearing denied.

In denying a rehearing the court filed the following opinion on March 23, 1922:

THE COURT.-The petition for rehearing is denied. The question as to whether the check upon which recovery was sought by the plaintiff herein was a stale check so as to destroy its negotiability was not put in issue by the pleadings herein, nor does it appear to have been presented upon the trial, nor was it urged by the appellant until its reply brief was filed. The record herein shows that by stipulation all evidence offered and admitted upon the trial of the cause was omitted from the record upon appeal, excepting only the evidence touching the question as to whether the plaintiff took said check as the agent of the drawee or as a transferee thereof for value. This being so, we are unable to say that there was not sufficient evidence before the trial court to fully explain and excuse the delay in the presentation of said check for payment and to show that such delay was not unreasonable under the particular circumstances of the case.

Richards, J., pro tem., Sloane, J., Shurtleff, J., Lawlor, J., Shaw, C. J., and Wilbur, J., concurred.

[Crim. No. 2439. In Bank.-February 23, 1922.]

In the Matter of the Application of THOMAS WHEATLY SHACKLEFORD for Writ of Habeas Corpus.

[1] INSANE PERSONS-JURY TRIAL-TIME.-Under section 2174 of the Political Code, trial by a jury of a person charged with insanity may be had after the ten days mentioned in the section.

[2] ID. VERDICT BY LESS THAN WHOLE JURY-AUTHORITY FOR.-The jury trial authorized by section 2174 of the Political Code is not the common-law jury trial, and hence the legislature may authorize a verdict by less than the whole number of the jury. [3] ID. TRIAL OF INSANITY-HABEAS CORPUS.-While the question of sanity may be tried by the supreme court on habeas corpus, it would require too much of that court's time, and too great inconvenience to witnesses, and, therefore, the writ will be made returnable before the superior court of the county where the petitioner is confined.

A

[4] ID. PETITION FOR WRIT OF HABEAS CORPUS-VERIFICATION. petition for writ of habeas corpus the statute now provides must be under oath.

APPLICATION for a Writ of Habeas Corpus to secure the discharge of one charged with insanity. Writ granted.

The facts are stated in the opinion of the court.

Thomas W. Shackleford, in pro. per., for Petitioner.

THE COURT.-The petitioner, as grounds for release on habeas corpus, claims: (1) That he is not, and never has been, insane; (2) that the commitment is void because no jury trial was had within the ten days allowed by the code (Pol. Code, sec. 2174); (3) that section 2174 is void in this, that it allows a commitment to be issued upon a verdict by less than the whole number of twelve jurors.

[1] With respect to the second and third grounds the court has recently decided (In re Scott, 187 Cal. 770 [204 Pac. 571]), that under section 2174 a trial by jury may be had after the ten days mentioned in the section. [2] As to the third ground we are of the opinion that the jury trial authorized by the section is not the common-law jury trial, and hence that the legislature may authorize a verdict by less than the whole number of the jury.

In another petition, also filed, the petitioner claims that this commitment is null because no jury trial was had after his demand therefor. Upon receiving that petition the court made an examination of the proceedings which led to the commitment in the superior court of the city and county of San Francisco, and found that the files there show that the petitioner had withdrawn his request for a jury trial. The court is, therefore, clearly of the opinion that no reason for release on habeas corpus on the second and third grounds exists.

[3] With respect to the first ground, the question of his sanity may be tried in this manner, but for this court to take up such matters would require too much of our time and would be too great an inconvenience to the witnesses who might be required to attend the trial. In such a case it is proper to issue a writ returnable before the superior court of Santa Clara County, that being the county in which the petitioner is confined.

[4] It is further to be noted that the petition is unverified, and that the statute now provides that such petitions