at the sum of $3,883,866; that in fixing the amount of said assessment he relied upon the statements made to him by the officers and agents of said corporation, and that by reason of their misrepresentations he was induced to assess the property at that valuation, instead of its actual value, and that thereby said corporation escaped taxation for that fiscal year upon the sum of $13,616,134, the difference between the full value of said property and the amount for which it was assessed; that the respondent is now engaged in assessing property in said city and county of San Francisco for the fiscal year commencing July 1, 1896, and has been notified by the petitioner that said corporation escaped taxation as aforesaid for the preceding fiscal year, and has been demanded to assess the same as provided by sections 3648 and 3649 of the Political Code; and that, unless directed by the mandate of this court, he will not comply with this demand. These sections of the Political Code are as follows:

"Sec. 3648. Any property willfully concealed, removed, transferred or misrepresented by the owner or agent thereof to evade taxation, upon discovery must be assessed at not exceeding ten times its value, and the assessment so made must not be reduced by the board of supervisors.

"Sec. 3649. Any property discovered by the assessor to have escaped assessment for the last preceding year, if such property is in the ownership or under the control of the same person who owned or controlled it for such preceding year, may be assessed at double its value."

alty for a misrepresentation in reference to a matter upon which it had not authorized or required him to make any representation whatever. By section 3629 of the Political Code, the assessor is authorized to demand from the owner of property a statement containing a list of all the property owned by him on the first Monday of March, preceding; and by section 3650 he is required to prepare an assessment book, in which must be specified, in separate columns, the value of all such property. There is no provision of the statute requiring the owner to place any value upon his property, but the assessor is chosen by the people for the express purpose of exercising that function. It is not claimed that the Market Street Railway Company failed to give to the respondent the statement provided for by section 3629, or that its property was not exhibited to him, and full opportunity offered to examine the same and determine its value; and it cannot be held that, even if the owner has willfully misrepresented to the assessor the value of his property, he has thereby misrepresented his property, if he has at the same time given to that officer a full and correct statement of the several items of that property, and exhibited the property itself. The assessor is himself required to ascertain and determine the value of the property, and for that purpose may make such inquiries or receive such information as he desires; but the valuation which he finally places upon the property is his own act, whether it results from the exercise of his own judgment, or from the representations of the owner or of a stranger. If he has erred in his estimation of this value, the statute has provided a board of equalization as the tribunal for the correction of such error, which, by section 3673 of the Political .Code, is authorized to "make the assessment conform to the true value of such property in money," and if no correction is made by that body the valuation made by the assessor is final. The assessment of property for the purposes of taxation is a function of the executive department of government, but the proceeding contemplated by the petition herein would transfer that function to the judicial department of the government. In order to determine whether there had been any misrepresentation of the value of the property, it would be necessary to ascertain its actual value; and for a court to enter upon this investigation would be to step beyond the boundaries of its constitutional jurisdiction, and intrude within those which, in the division of governmental functions, have been by the organic act placed elsewhere. The writ is denied.

We concur: GAROUTTE, J.; VAN FLEET,

(5 Cal. Unrep. 371)

SCRIVANI v. DONDERO. (S. F. 254.) (Supreme Court of California. May 18, 1896.)

APPEAL-REVIEW-GRANTING OF NEW TRIAL.

The rule that an appellate court will not disturb a verdict where there is evidence to sustain it does not apply with equal force to the trial judge, who saw and heard the witnesses, and an order granting a new trial will not be reversed unless there has been an abuse of discretion.

Department 1. Appeal from superior court, Santa Cruz county; J. H., Logan, Judge.

Action by Batisto Scrivani against Charles Dondero. Plaintiff appeals from an order setting aside a verdict in his favor and granting a new trial. Affirmed.

Geo. P. Burke, for appellant. Julius Lee, for respondent.

PER CURIAM. This is an action to recover damages for malicious prosecution. There was a verdict and judgment for $500 in favor of the plaintiff. Defendant moved for a new trial, which was granted. Plaintiff appeals from the order granting a new trial.

The order appealed from states no ground for the decision, but the motion was made upon the ground, among others, of the insufficiency of the evidence to justify the verdict; and, as the record is presented, the order must stand or fall upon the correctness of the ruling on that question. Appellant contends that the court below abused its discretion in granting the order upon the ground stated. This court has uniformly held that motions for new trial are addressed to the sound discretion of the trial courts, and that their action thereon will not be disturbed unless there has been a manifest abuse of discretion. In this case there is a substantial conflict of evidence material to the issue. In Sherman v. Mitchell, 46 Cal. 577, the appeal was from an order granting the defendant a new trial, as to which the court said: "In Dickey v. Davis, 39 Cal. 569, we said: 'In this court, when there is a substantial conflict in the evidence, we decline to set aside a verdict or finding of facts as being contrary to the weight of evidence, solely because we have had no opportunity to observe the manner of the witnesses and to decide upon their credibility. But this reason does not apply to the district judge, and, though it is the peculiar province of the jury to decide upon the facts submitted to them, generally, in doubtful cases, the verdict ought not to be set aside as contrary to the weight of the evidence, nevertheless, if the judge is not satisfied with the verdict, and is convinced that it is clearly against the weight of the evidence, it is his duty to set it aside, even though there may have been some conflict in the testimony.' In Warner v. Thomas Cleaning Works, 105 Cal. 409,

38 Pac. 960, the court said: "It is * settled law that when the evidence is conflicting the trial court is authorized to review it, and if. in its opinion, the verdict is against the weight of the evidence, it is its duty to grant a new trial. Bjorman v. Redwood Co., 92 Cal 500, 28 Pac. 591; Domico v. Casassa, 101 Cal. 411, 35 Pac. 1024, and cases cited." In Bates v. Howard, 105 Cal. 173, 38 Pac. 715, this court said: "It is a cardinal doctrine of this court, the oft enunciation of which has rendered it monotonous, that, where upon a question of fact the testimony in the court below involves a substantial conflict, the action of such court below will not be disturbed." See, also, Curtiss v. Starr, 85 Cal. 376, 24 Pac. 806; Townsend v. Briggs, 88 Cal. 230, 26 Pac. 103: Crooks v. Miller, 89 Cal. 35, 26 Pac. 615; Jones v. Sanders, 103 Cal. 678, 37 Pac. 649; In re Carriger's Estate, 104 Cal. 81, 37 Pac. 785. The rule invoked by appellant is that which prevails in the appellate court. The lower court is not governed by the same rule. Bates v. Howard, 105 Cal. 178, 38 Pac. 715; Wilson v. Railroad Co., 94 Cal. 168, 29 Par. 861; Sherman v. Mitchell, 46 Cal. 577; Dickey v. Davis, 39 Cal. 569. The order appealed from is affirmed.

(112 Cal. 630)

In re CHOPE. (No. 15,664.) (Supreme Court of California. May 19, 1896, INSOLVENCY PROCEEDINGS-PARTIES-SUFFICIENCY OF PETITION-PRAYER FOR DISCHARGE-EXCESS OF ASSETS OVER LIABILITIES — JUDICIAL NO TICE.

1. Notice of appeal by a creditor from an order adjudging petitioner to be insolvent, and appointing a temporary receiver, need not be served on the receiver, under Insolvent Act 1880, § 67, which requires service only on the "adverse party."

2. Notice of appeal by a creditor from an order adjudging petitioner to be insolvent need not be served on creditors who have not, at the time such appeal is taken, filed proofs of their claims, or in any manner appeared.

3. A creditor may appeal from an order adjudging petitioner to be insolvent, though he has filed proof of claim in such proceeding.

4. A petition in insolvency which avers that petitioner desires to be discharged from his debts and liabilities, as required by Insolvent Act 1880, § 2, is sufficient, though it does not conclude with a formal prayer for such discharge.

5. A petition in insolvency which alleges that petitioner "is unable to pay his debts in full, and is an insolvent within the true meaning and intent" of the insolvency act, is sufficient, if not denied, to authorize an adjudication of insolvency, though the accompanying schedule shows that the assets exceed the liabilities.

Commissioners' decision. Department 1. Appeal from superior court, Humboldt county. Petition in insolvency by Arthur H. Chope. From an order declaring petitioner insolvent, fixing a date for the meeting of creditors, and appointing a receiver to take charge

of the estate until the appointment of an assignee, Columbus Waterhouse, one of his creditors, appeals. Affirmed.

Ford & Burnell, for appellant. J. F. Coonan, for respondent.

BRITT, C. On December 16, 1893, Chope filed in the superior court of Humboldt county a paper purporting to be his voluntary petition in insolvency, and on the same day the court made an order, under section 6 of the insolvent act of 1880, as amended in 1891, declaring him insolvent, fixing January 20, 1894, for the meeting of creditors, and appointing the sheriff of the county a receiver to take possession of his estate and keep the same until the appointment of an assignee. On January 11, 1894, Columbus Waterhouse, one of the creditors named in the schedules accompanying said petition, took the present appeal to this court from the said order of December 16th. Notice of the appeal was served on no one but the attorney of Chope.

Respondent has moved for a dismissal of the appeal on the grounds: (1) That the notice thereof was not served on the receiver and on the other creditors of the petitioner; and (2) that Waterhouse cannot prosecute the appeal, because, since taking the same, he has proved and filed a claim for his debt in the court below. The motion is not well founded. The notice of appeal from the order adjudicating the petitioner to be insolvent, like similar notices in ordinary civil cases, was to be served on the "adverse party." Insolvent Act, § 67; Code Civ. Proc. § 940. The receiver appointed by the court was the mere instrument of the law and of the court for the temporary preservation of the debtor's property, and was in no sense a party to the proceeding adverse to the creditors. It would be as appropriate to call the sheriff or his keeper of attached property a party adverse to the plaintiff or defendant in an action where the process of attachment has been employed. As to the other creditors named in the debtor's schedule, it is not shown that they had, when the appeal was taken, filed proofs of their claims or in any manner appeared in the proceeding. They were therefore not parties to whom notice of the appeal was requisite. Chinette v. Conklin, 105 Cal. 465, 38 Pac. 1107; Code Civ. Proc. § 1014. If it be true that the appellant made claim and proof of his debt in the

superior court, the fact does not estop him to pursue his appeal. That proof of claim by the creditor and his right of appeal in such a case may stand together is the necessary postulate of the decision in Stateler v. Superior Court, 107 Cal. 536, 40 Pac. 949.

The appellant's case rests upon certain alleged defects in Chope's petition. This did not conclude with a formal prayer for the debtor's discharge, and hence appellant says it was no petition at all. It did, however, contain a distinct averment, as required by section 2 of said act, that the petitioner desires to be discharged from his debts and liabilities. No other prayer was necessary. Α schedule accompanying the petition showed that some of the creditors reside at "Eureka," and others at "San Francisco." Appellant claims that this was insufficient, in that no county or state is specified. The better practice would certainly be to indicate in the schedule the state, as well as the locality within the state, of each creditor's residence; but in this instance judicial notice is taken that both Eureka and San Francisco are incorporated cities in the state of California. City of Pasadena v. Stimson, 91 Cal. 241, 27 Pac. 604; Cole v. Segraves, 88 Cal. 103, 25 Pac. 1109; Payne v. Treadwell, 16 Cal. 220.

It is further objected that no case of insolvency is made out by the petition, because the schedules showed petitioner's assets to amount to $2,900 in value, and his debts to be $2,272.07 only. This showing is not necessarily inconsistent with a state of insolvency. In re Ramazzina (Cal.) 42 Pac. 970. The petitioner | alleged that he "is unable to pay his debts in full, and is an insolvent debtor within the true intent and meaning" of the act of 1880. No doubt this averment may be controverted by the creditors, or any of them; and, if put in issue, it should be established by the debtor as a fact. Hunt v. His Creditors, 9 Cal. 45; In re Thomas (Cal.) 44 Pac. 327. But we think it was quite sufficient to invoke the jurisdiction of the court to declare the petitioner insolvent. The motion to dismiss the appeal should be denied, and the order appealed from should be affirmed.

(5 Cal. Unrep. 379)

RANDOL v. ROWE. (S. F. 33.) (Supreme Court of California. May 19, 1896.)

SET-OFF ESTOPPEL TO PLEAD. An equitable estoppel to plead a set-off of a note in an action on an account against defendant, which had been assigned to plaintiff by the maker of the note,' did not arise out of the assignor's direction to defendant, after the assignment, to pay the amount of the account to plaintiff, and defendant's silence as to his possession of said note, it not appearing that plaintiff had krowledge of such request.

Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county; W. G. Lorigan, Judge.

Action by J. B. Randol against William Rowe on an account. From the judgment rendered, plaintiff appeals. Affirmed.

J. H. Campbell, for appellant. C. L. Witter and D. W. Burchard, for respondent.

BELCHER, C. The facts of this case briefly stated, are as follows: In July, 1893, one Z. H. Martin sold and delivered to the defendant a certain quantity of hay, for which the agreed purchase price was $541.17. On or about July 15, 1893, defendant paid Martin, for and on account of the hay, the sum of $194.37, leaving a balance still due therefor of $346.80. On August 2, 1893, Martin assigned and transferred his said claim to the plaintiff, who has ever since been the owner and holder thereof. On February 25, 1893, Martin executed and delivered to one Hornberger his negotiable promissory note for $675, payable 30 days after date, with interest; and thereafter, on July 25, 1893, Hornberger indorsed and transferred the said note to the defendant, who has ever since been the owner and holder thereof. Before the said transfer there was paid on the note the sum of $75, and the balance of principal and interest remains due and unpaid. On July 14, 1894, the plaintiff commenced this action to recover the sum of $346.80, with interest, alleged to be due on his said assigned claim, and the defendant pleaded as a counterclaim thereto the said note assigned to him. The court below allowed the counterclaim, and gave judgment that the plaintiff take nothing by his action, and that defendant recover his costs. The plaintiff appeals from the judgment, upon the judgment roll, and contends that the court erred in allowing the counterclaim.

Substantially the same question as that involved in this case arose, and was quite elaborately discussed, in Bank v. Gay, 101 Cal. 286, 35 Pac. 876, and the decision was adverse to the contention of appellant here. That decision we consider decisive of this case, and a further discussion of the question is therefore unnecessary.

The point is made that "the defendant is estopped by his tortious silence from asserting the alleged counterclaim." This point

is rested upon a finding of the court which is as follows: "That after the said assignment by Z. H. Martin to the plaintiff, and about the 4th day of August, 1894, said Z H. Martin told the defendant thereof, and requested him to pay said assigned claim to plaintiff, and the defendant made no objection or response thereto, and neither then or theretofore, nor at any time until afterwards, gave notice or made any mention to plaintiff or said Z. H. Martin of the assignment of said note to him." The year, as above written, should probably be 1893, and not 1894; but, whether so or not, we see no ground in the facts found for invoking the doctrine of estoppel. The well-settled rule is that, to create an equitable estoppel, the person sought to be estopped must do some act or make some admission to influence the conduct of another, which act or admission is inconsistent with the claim he proposes now to make, and the other party must have acted on the strength of such act or admission. At the time named, Martin had no interest in the transaction, and it does not appear that the plaintiff ever knew of the interview referred to, and certainly it cannot be said that his conduct was ever influenced thereby. The judgment should be affirmed.

We concur: BRITT, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

(5 Cal. Unrep. 370) BURNS v. SENNETT et al. (S. F. 31.) (Supreme Court of California. May 15, 1896) FELLOW SERVANTS-STEVEDORE'S CREw-Sling MAN AND RIGGER.

The slingman of a stevedore's crew enr ployed to load a vessel, whose duty it is to stand on the wharf and attach the hoisting tackle to the articles to be loaded, is a fellow servant of the riggers, whose duty it is to set up and rig the hoisting apparatus to the vessel.

Department 2. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Patrick Burns against Sennett & Miller for personal injuries. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Mullany, Grant & Cushing, for appellant. Mastick, Belcher & Mastick, for respondents.

PER CURIAM. This is an appeal from a judgment of nonsuit entered upon the conclusion of the hearing of plaintiff's testimony. All of the evidence is presented by bill of exceptions. Upon the former appeal in this case (Burns v. Sennett, 99 Cal. 363, 33 Pac. 916), it was held that, under the evidence before the court, the duty of defendants was fulfilled when they furnished to the employés suitable material and appliances for the con

struction and support of the hoisting tackle. As the task of setting up or rigging these appliances, and of safely maintaining them, was a part of the duty of plaintiff's fellow employés, the defendants were not liable to plaintiff for injuries which might have resulted to him from a negligent performance of that duty. These propositions are not here questioned. But it is strenuously insisted that the evidence adduced upon the new trial presents a different state of facts, and establishes that the riggers of the vessel were not fellow servants of the injured man. A most careful examination of the testimony fails to support this claim. It would be profitless to set forth at length the explanations of the different witnesses, but the following brief quotation from the testimony of plaintiff serves as a fair illustration of all: "The foreman of the stevedore firm hires a gang of men, and takes them on board the ship. He directs four or five to go up and rig the vessel,-the gear,-and just as soon as the gearing is finished we all start to work. That is the usual practice." In view of this evidence, and of the opinion upon the former appeal, where the questions are elaborately considered, the judgment is affirmed.

(112 Cal. 652)

STONE v. BANCROFT. (S. F. 171.) (Supreme Court of California. May 21, 1896.) CONTRACT-PARTNERSHIP OR EMPLOYMENT-ACTION FOR SALARY.

1. A contract between plaintiff, S., and defendant, B., recited that B. was conducting a publishing business under the name of the H. Co., about to be incorporated, and that, in consideration of the valuable services rendered by S. in connection therewith, B. sells and assigns to S. a tenth interest in said company, on the following conditions: S. is to devote all his time for not less than 10 years to the publication and sale of the works which the H. Co. may take up. On the incorporation of the H. Co., one-tenth of the shares shall be issued to S.; but, if he fails to carry out his agreement, said one-tenth interest shall be forfeited to B., provided that, in case of the death of S. before expiration of five years, he having fulfilled his agreement to that time, then onehalf of said one-tenth interest shall become the property, unconditionally, of the heirs of S. The salary of the said S. shall be $350 per month. Held, that this was not a contract of partnership, but of hiring.

2. Under such contract, B. is liable to S. for his salary, though the H. Co. receives the benefit of his services.

3. One properly sues on his contract of employment for his salary, rather than for damages for breach thereof, where he has not been discharged, and has held himself in readiness, though he has rendered no services, because no work has been offered him.

Department 1. Appeal from superior court, Contra Costa county; Joseph P. Jones, Judge. Action by N. J. Stone against H. H. Ban-croft. Judgment for plaintiff. Defendant appeals. Affirmed.

E. J. McCutcheon, for appellant. Reddy, Campbell & Metson, for respondent.

GAROUTTE, J. This action is brought to recover upon a written contract for 14 months' salary, at the rate of $350 per month, commencing upon January 1, 1892. The verdict of the jury was in favor of plaintiff, and defendant appeals from the judgment and order denying his motion for a new trial.

A general demurrer was interposed to the complaint, and also a special demurrer to the point that the complaint was ambiguous, uncertain, and unintelligible in various particulars. The consideration of this demurrer leads us to an examination of the contract made by these parties, for that contract is set out in full in the complaint. The material parts thereof recite: "This agreement, made in San Francisco, California, by H. H. Bancroft and N. J. Stone, witnesseth: That in consideration of the valuable services done by the said Stone in conducting the publication and sale of the historical works of the said Bancroft, the business formerly being conducted as the Bancroft Works Department of A. L. Bancroft & Co., but now being done, and shortly to be incorporated under the laws of California, as the History Company, the said Bancroft hereby sells and assigns to the said Stone a one-tenth interest in the said History Company, plates, paper, stock, money, outstanding accounts, or other property of said company, upon the following conditions: The said N. J. Stone is to devote his whole time and best energies, so far as his health and strength shall permit, for a period of not less than ten years from the date of this agreement, to the publication and sale of the historical works of H. H. Bancroft, and of such other works, and conduct such other business, as may be from time to time taken up and entered into by said History Company. The said Stone agrees not to enter into or engage in, directly or indirectly, any other mercantile or manufacturing business, or any other business or occupation which shall in any wise absorb his mind and strength, or interfere with his interest or efforts on behalf of the said History Company during the said term of ten years. Upon the incorporation of the History Company, one-tenth of the whole number of shares shall be issued and delivered to the said N. J. Stone; but should the said Stone fail in any wise to carry out this agreement, or any part thereof, in its full letter and spirit, then the said one-tenth interest in the said History Company shall be forfeited and revert to the said H. H. Bancroft; provided, and it is distinctly understood and agreed, that, in case of the death of the said N. J. Stone before the expiration of five years from the date of this agreement, the said Stone having fulfilled all the conditions of this agreement up to that time, then one-half of the said one-tenth interest of the said Stone in the History Company shall go to his heirs, and be