on defendant the burden of alleging and proving due care.

The superior court did not err in overruling the demurrer to the complaint. The demurrer having been overruled, the defendant filed an answer admitting the construction, by itself and its predecessors, of a levee along the western side of the Los Angeles river, but denying that it was constructed for the purpose of reclaiming to itself lands theretofore inundated, and denying that it was constructed in a straight line down the Los Angeles river from First street without regard to the bed or channel of the stream, or where the water usually flowed, or that by means thereof the water of the river was diverted into a new channel. For a further answer, and as a special and additional defense to the action, the defendant set up a plea in substance as follows: That said levee was constructed and has since been maintained under the terms and conditions of a certain ordinance of the city of Los Angeles, for the uses and purposes therein expressed and not otherwise, and in the manner prescribed by the city of Los Angeles through its duly-constituted authorities, and on the line by said city declared to be the official western boundary of said river; that, after the construction of said levee, under and in pursuance of and in accordance with the terms and conditions of said ordinance, the city of Los Angeles, by its duly-constituted officers and authorities, on the 26th day of March, 1888, duly accepted said work and said levee; that, by reason of the premises aforesaid, the said city of Los Angeles is, and at all the times mentioned in the complaint was, the owner and in possession of the said levee, and the whole thereof, and this defendant maintains the same by reason of the provisions of said ordinance, and as a part of its consideration for the lands and premises conveyed to it by the city of Los Angeles, and this defendant has not now, and had not at any time since the date of said acceptance by the city, any right, title, interest, claim in, or authority over said levee, or any portion thereof, saving and excepting to keep the same in repair as required by the said ordinance, and the same is the property of the city of Los Angeles, and subject to its authority and control. In connection with these allegations, the ordinance referred to is set out in full, and also a grant of lands and rights of way from the city to defendant's predecessor, made in pursuance of the ordinance. The following is the title of the ordinance, which was duly adopted December 8, 1886: "An ordinance to provide for the construction of a levee upon the westerly side of the Los Angeles river for the protection of property of inhabitants of said city from the high waters of said river; for the sale of city lands and grant of right of way to the Riverside, Santa Ana & Los Angeles Railway Company for the construction of such levee." And in the body

of the ordinance it is declared that "said levee shall be built for the public benefit of the city of Los Angeles, and is intended to confine the high waters of the Los Angeles river within the levee so to be constructed, and to prevent the property of the inhabitants of said city on the westerly side of said levee from being injured or destroyed in times of high flood by waters overflowing the banks of the river." Aside from this declaration, the substance of the ordinance is a grant to the railway company named in the title one of defendant's predecessorsof a strip of land bounded on the east by the west line of the official bed of the Los Angeles river, and extending from the southern patent line of the pueblo lands several miles into the city, together with rights of way across and along the streets of the city for its tracks; the purpose of the grant being, as declared in the ordinance, "for the laying down, operating, and maintaining" a steam railway for the transportation of freight and passengers, and for the construction of switches, turnouts, depots, and other structures necessary for the successful conduct of its business. This grant is made upon condition (along with numerous regulations and reservations for the benefit of the city and the public) that the grantee shall construct and maintain a levee along the western line of the official bed of the river from Mission street to a designated point south of First street, for which work, when completed, the railway company is to receive $12,000 in money, in addition to the said grant of land and rights of way. The deed of grant, which is also set out in full, seems to follow strictly the terms of the ordinance. It is dated April 13, 1888, the levee having been formally accepted by the city March 26, 1888. In connection with these allegations, in regard to the building of the levee for and under contract with the city, and as a part of the same defense, the defendant repeats its denials that it recklessly or negligently built or constructed said levee in disregard of the current of said river, or the quantity of water usually flowing therein during the rainy seasons, or that it maintains said levee in such manner as to obstruct the natural channel of said river, or the natural flow of the water thereof, or that it or its predecessors have narrowed the channel in such way or manner as to cause the water flowing down said channel to diverge from its natural course or its usual flow over and upon plaintiff's lands, or that by reason of any acts or doings of the defendant said water was diverted or made to flow over the lands of plaintiff, etc. With the exception of these denials, all that portion of the answer setting up the ordinance of and contract with the city, and the defense that the levee was constructed thereunder for the city and not for the defendant, was, on motion of the plaintiff, stricken out. Subsequent to the making of this order the

defendant amended its answer, as so modified, by alleging, among other things, that "said levee was constructed along the western side of said Los Angeles river, as a necessity, upon its own land, for the purpose of protecting the roadbed and roadway of the said California Central Railway Company, predecessor of this defendant, and that the same was done in a workmanlike and skillful manner, with proper care, prudence, and foresight, for the purpose of prevent ing its tracks and roadbed from being flooded, injured, and washed away during times of flood and high water from the river, and during the time of year commonly known as the 'rainy season' of California, and for the protection of its property, and for the safety and interest of patrons and, passengers being transported over its said line." It was upon the answer so amended (including other matters of defense not material to the present discussion) that the defendant was compelled to go to trial, and the assignment of error mainly relied upon in support of the appeal is the order of the court striking from the original answer the special defense above set forth.

The correctness of this order is to be tested by reference to the state of the pleadings at the time it was made. It cannot be supported upon the ground that subsequently the defendant amended its answer by setting up the somewhat inconsistent defense that it built the levee on its own lands for the protection of its roadbed, tracks, and other property. If both these defenses had been pleaded together in the original answer, the mere fact of their partial inconsistency would not have justified the striking out of either of them. McDonald v. Railway Co., 101 Cal. 213, 35 Pac. 643, 646, and cases cited. Still less can the order be upheld upon the ground that the evidence at the trial did not support or was inconsistent with the defense stricken out. A defense which a party is not allowed to plead is not likely to find support in the evidence offered or admitted at the trial. The question, therefore, is whether the facts as pleaded would constitute a defense to the cause of action stated in the complaint.

The appellant contends that such facts would, for more than one reason, constitute a good and sufficient defense. In the first place it is claimed that the city of Los Angeles, for the protection of its inhabitants and their property (the declared object of the ordinance pleaded in the answer), had the undoubted right to build the levee in question, without incurring any liability for such indirect and consequential damages as the plaintiff alleges in her complaint; and, consequently, that the defendant, a mere contractor for the work, cannot be liable. In the second place it is claimed that, even if the city became liable to compensate the plaintiff for the resulting damage to her lands, such liability rested upon the city

exclusively, and in no wise attached to the defendant or its predecessors.

In considering the various questions involved in these two propositions, it is to be borne in mind that the city of Los Angeles is not only a municipal corporation, and, as such, invested for local purposes with a large share of the police power of the state as well as the privilege of invoking the power of eminent domain; it was also shown by the allegations of the plea which was stricken out to have been, at the date of the passage of the ordinance providing for the erection of this levee, the owner and proprietor of the land upon which the line of the levee was located, as well as other lands within the city which it was one of the objects of the levee to reclaim or protect. The rights of the city in these diverse characters must not be confounded, and we will first consider its rights as owner of said lands.

It cannot be doubted that as such owner or proprietor the city had the right to protect its own lands from overflow by erecting a levee along or outside of the natural banks of the stream, without incurring any liability for the effects of a consequent increase of the flow of flood waters upon the lands of neighboring proprietors. Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 14 Pac. 625; McDaniels v. Cummings, 83 Cal. 515, 23 Pac. 795. It may be, also, that in the case of a stream such as the Los Angeles river was shown to be by the testimony, viz. a river with a sandy bed, half a mile in width, through which, except in times of flood, the water runs in a small and insignificant stream, now in one channel and again in another, a proprietor of the bed of the stream may have an equal right to reclaim a reasonable portion of such bed by means of a levee constructed within the banks; but certainly he could have no right for such purpose so to obstruct the channel or divert the current as to force the water into a new and permanent channel through the lands of other proprietors outside of the natural banks. Did the allegations stricken from the answer show a lawful structure, within this doctrine? They were, as above shown, to the effect that the levee was erected on the west line of the "official bed" of the river, i. e. upon a line which had been declared by a city ordinance to be the western bank of the river. This, so far as the court could see, might have been the natural bank or a line very widely divergent therefrom (which in point of fact it is), and the court was therefore justified in assuming, as against the pleader, that it was not the natural bank. Upon this assumption, and in the absence of any allegations as to the character of the river and its bed, or other facts justifying the construction of a reclamation levee within the natural banks, it cannot be said that this part of the answer stated a complete defense based upon the right of the city, as

a proprietor, to protect its lands from overflow, unless its affirmative allegations were aided by the denials, with which they were coupled, of the allegations of the complaint to the effect that the levee was built in disregard of the natural channel of the stream, etc. We cannot, however, see why, in construing this part of the answer, such denials should be disregarded. The special defense

should be taken in its entirety, and, so construed, it states in effect that the levee was built by defendant for the owner of the lands upon which it was located to reclaim and protect them, and in such manner as not to interfere with the channel of the river or to divert its waters therefrom, except in so far as it might in times of flood cause them to overflow neighboring lands not similarly protected. This was, if true, a justification of the city, and necessarily of the defendant in doing the work for the city. And since, for the purposes of the motion to strike out, the superior court was bound to assume that everything alleged in the answer could be proved, it was error to grant the motion.

It is true, as above stated, that the evidence adduced at the trial not only failed to sustain this defense, but was in direct conflict with it. It showed clearly that the levee was constructed by the defendant-apparently for purposes of its own-more than a mile beyond its southern extremity as designated in the ordinance, and it showed that this additional and unauthorized portion of the levee was the only part that encroached upon the natural bed of the stream. The maps, diagrams, and other evidence introduced by the defendant, no less than the evidence introduced by the plaintiff, all agree upon this point, and all tend strongly to show that but for this unauthorized addition to the levee as planned by the city the damage to plaintiff's lands would not have occurred. But we cannot, for this reason, hold that the order striking out was harmless error. But for the order the defendant might have introduced evidence as to these matters that would have changed the aspect of the case, and we cannot assume that, as the evidence is, the jury would have viewed it in the light in which it appears to us, if the case had been submitted to them upon the theory that the defense pleaded was a good defense. Our conclusion on this point involves a reversal of the judgment, but, since the result will be a new trial of the cause, it is necessary that we should indicate our views with reference to several other assignments of error, involving questions likely to arise in the future progress of the litigation.

We cannot sustain the proposition of the appellant that in view of the allegations of its original answer-and admitting, for the sake of the argument, that it disclosed no absolute right on the part of the city to build the levee-the only person owing any duty to the plaintiff to exercise care and skill to avoid damaging her property was the city.

Conceding that the negligence complained of consisted solely in the faulty plan and location of the work, and not at all in the manner in which it was executed by the defendant, it seems to be settled by the decisions of this court that if the damage was actionable the city and the defendant would be jointly and severally liable. To place an unlawful obstruction in the bed of a stream, by which the current is directed into a new channel across another's land, makes a case clearly within the principle recently applied in Green v. Berge (No. 15,545; Cal.) 38 Pac. 539, and in the cases therein cited. If the work was such as to make the city liable, it made the defendant liable also, and the plaintiff could maintain her action against either or both. Of course, if the city exercised such care and skill in creating the plan and fixing the location of the work as to exempt it from any liability to the plaintiff, and the damage was wholly caused by such location and plan,-no negligence being attributed to the defendant in the construction of the work, nor any departure from the plan, the defendant would be no more liable than the city. But if the work was innerently, and according to its plan and location, a dangerous obstruction to the river, such as ordinary prudence should have guarded against, not only the author of the plan to obstruct the stream, but the person placing the obstruction, were severally liable for the entire damage.

The questions which have so far been considered solely with reference to the rights of the city of Los Angeles, as the owner of lands subject to overflow and capable of reclamation, assume a somewhat different aspect when considered with reference to the powers and duties of the municipal corporation as a public agent for the exercise of the police power of the state. By section 1 of article 4 of the charter of Los Angeles, which was in force at the date of the passage of the ordinance pleaded in the defendant's answer (St. 1875-76, p. 697), very extensive police powers were conferred upon the corporate authorities for the protection of persons and property within the city; and by section 11, art. 11, of the present constitution, which was also then in force, every municipal corporation may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws. In other words, the corporate authorities were not only by act of the legislature, but by the direct mandate of the people as expressed in the organic law, authorized to exercise the police power of the state for local purposes. There was also in existence an act of the legislature, passed in 1868 (St. 1867-68, p. 167). by which the common council of the city were empowered to levy a special tax for the purpose of creating a Los Angeles river fund, which was to be expended in such manner as the mayor and common council should

direct, "in improving the channel and banks of said river in any manner deemed necessary by said mayor and common council for the protection of property on the banks of said river." Under these statutory and constitutional provisions it became the duty, as it was clearly within the power, of the corporate authorities to improve the channel and banks of the river as they might, in the exercise of a sound discretion, deem most advantageous to the city and its inhabitants. The work which they were called upon to perform was, like the work performed by the levee commissioners under the act of the legislature referred to in Green v. Swift, 47 Cal. 539, distinctly of a public character, and within the police powers of the state, its design being to protect a populous and important district of the state. The means of accomplishing this object, as in the case referred to, was confided, and in more ample measure, to the discretion of the body charged with the execution of the work; and if, in creating a plan and locating the lines of the levee, they exercised their judgment honestly, and not maliciously, oppressively, or arbitrarily, to the injury of the rights of other persons, they-the corporation and its authorities-could not be held liable for mere errors of judgment, and the persons executing the work with due care, and according to such plan, would be equally exempt from liability for any direct or consequential damage to third parties. Green v. Swift, supra. It was error, therefore, in this aspect of the case also, to strike from the defendant's answer the matters of defense above mentioned; for, although they may have been defectively pleaded in some particulars, the proper method of reaching such defects was by demurrer, and not by motion to strike out. A party who defectively pleads a good defense should be allowed an opportunity of amending his pleading.

It is suggested that, in view of the provision of our present constitution (article 1, § 14), that "private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner," the doctrine of Green v. Swift is no longer applicable to cases of this character. It is possible that this may be true, but it can make no difference in the present case whether it is true or not. Conceding, for the sake of the argument, that the effect of the constitutional provision is to make the state, or a public agency by it employed in the construction of a work designed to protect the lives and property of a large community, liable for indirect and consequential damages, such as were alleged and proved in this case, and which could not have been estimated or compensated in advance, although some damage might naturally have been apprehended, it does not follow that the contractor, executing the work carefully and properly according to the plan, would be

liable. On the contrary, since in the case supposed the state or corporation would be liable, not for a tort, but only upon its obligation to compensate the damages resulting from the rightful exercise of its power, the liability would rest upon it alone, and the contractor, who has merely constructed the work carefully and properly according to the plan, will be exempt from any liability. There was no taking of plaintiff's property in this case, either according to the facts alleged or facts found, even if tested by the doctrine of Pumpelly v. Green Bay Co., 13 Wall. 166, which has been held to be an extreme case. Green v. State, 73 Cal. 29, 11 Pac. 602, and 14 Pac. 610; Lamb v. Rec lamation Dist. No. 108, 73 Cal. 125, 14 Pac. C25. Neither was the damage to it the natural, certain, and immediate consequence of the facts alleged. It did not appear, therefore, that the ordinance of the city was invalid by reason of its failure to provide for compensation to plaintiff in advance of the construction of the levee.

What has been said with reference to the error of the court in the order to strike out applies to the error assigned upon the ruling limiting the purpose for which the ordinance was admitted in evidence. Even under the pleadings as they stood at the time of the trial, the ordinance was admissible for the purpose of showing that defendant's track had been rightfully laid within the city, and, consequently, that it could protect them by a lawful and proper levee, the question whether this levee had been constructed with due care being a question for the jury. There were some rulings of the court upon objections to evidence, and in giving and refusing instructions, which, although proper enough under the pleadings as they stood, would not have been proper if the defense pleaded in the original answer had not been stricken out. We need not specify these rulings more particularly, since they are sufficiently indicated by what has been said.

The court did not err in giving instruction No. 4, requested by the plaintiff. Read in connection with other instructions, it could not have been understood to require the defendant to exhaust all possible sources of inquiry as to previous extraordinary floods. Instruction No. 10 was not sufficiently guarded, even according to the theory upon which the case was tried. Instruction 13 was, perhaps, erroneous in assuming as a fact the occurrence of extraordinary Loods in the past, though, in view of the unanimity of the witnesses on that point, it can scarcely have been prejudicial. There was no error in the modification made by the court in defendant's instruction 14. Instruction No. 2, asked by plaintiff, seems to have been upon a point not in issue, and should have been omitted for that reason. Aside from these particulars we see no error or inconsistency in the instructions. For the reasons above given the judgment and order appealed from

are reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

We concur: MCFARLAND, J.; HARRISON, J.; GAROUTTE, J.; VAN FLEET, J.

(4 Cal. Unrep. 979) CORNWALL ▼. McELRATH et al. (No. 15,778.)

(Supreme Court of California. March 8, 1895.) ACTION BY ADMINISTRATOR- NOTE DEPOSITED IN TRUST COMPANY.

It is no defense to an action by an administrator upon a note due his decedent that pending the settlement of the estate the note was deposited with a trust company by order of court, and was produced therefrom only for the purpose of the action.

Department 1. Appeal from superior court, Alameda county; F. B. Ogden, Judge.

Action by one Cornwall, administrator, against one McElrath and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

J. E. McElrath, for appellants. Jas. C. Martin and Geo. M. Shaw, for respondent.

PER CURIAM. Action by the personal representative of Jerusha Cornwall, deceased, upon a promissory note executed to her by the defendants. The defendants do not deny the execution of the note, or the amount claimed to be unpaid thereon. In their answer they deny that the plaintiff has or is entitled to the possession of the note, either as administrator with the will annexed or otherwise. At the trial the note was offered in evidence on behalf of the plaintiff, and the defendants, in support of the above denial, rely upon the fact that it was shown by the plaintiff that under an order of the court, made in accordance with the provisions of section 3 of the act of April 6, 1891 (St. 1891, p. 490), the plaintiff had deposited the note with the California Safe-Deposit & Trust Company, a corporation, and that it was produced from that custody under the order of court for the purposes of this action. This evidence was sufficient to justify the findings of the court. The note was a part of the estate of the deceased, and the plaintiff, as the administrator with the will annexed of said estate, was authorized to bring the action for its collection. The action of the superior court appointing the plaintiff as such administrator, or fixing the amount of his bond, or issuing letters of administration, or giving him directions regarding the temporary custody of the estate, cannot be collaterally attacked in any action by him upon a promissory note belonging to the estate. The note was held by the trust company subject to the order and direction of the court, and it was produced at the trial under the order of the court. Its production authorized it to be admitted in evidence, and the fact that it

1. Articles of incorporation of a bank executed in 1875 need not state the number of shares subscribed, or the names of the subscribers; the amendment of Civ. Code, § 290, so requiring, not being passed until 1876.

2. On the trial of the manager of a bank for embezzling its funds, a cashbook showing the receipts and disbursements, and kept in the bank under the supervision of the defendant, is admissible to show the balance of cash on hand at the time of the alleged embezzlement.

3. An averment in an indictment for embezzlement that the funds were those of a corporation is supported by proof that it was a corporation de facto.

4. On a trial of a bank manager for embezzlement, a charge that if defendant, when insolvent and aware of such insolvency, "took large sums of money from the vaults of the bank, and executed therefor his unsecured promissory note to the bank, such taking "was a fraudulent appropriation, and falls within the definition of embezzlement," supplemented by another charge that it must also be found that he took such money "contrary to his trust," is not prejudicial to the defendant.

5. When the records of a corporation are excluded from evidence on the ground that the corporation was not legally organized, oral evidence is admissible to show who are the acting officers. 6. Section 242, Code Civ. Proc., which provides that the 19 persons whose names are drawn shall constitute the grand jury, does not deprive the court of the power to discharge persons regularly drawn who do not possess the statutory qualifications.

7. Under Code Civ. Proc. § 210, providing that the persons whose names are returned shall serve for one year, and until other persons are selected and returned, a grand jury organized in November, 1893, and not discharged by the court nor by the subsequent selection and return of another grand jury, may find a valid indictment in January, 1894.

8. A de facto officer of a corporation is criminally liable for embezzlement of funds in his hands.

Commissioners' decision. In bank. Appeal from superior court, Santa Clara county; John Reynolds, Judge.

H. M. Leonard was convicted of embezzlement, and appeals. Affirmed.

Morehouse, Tuttle & Richards, for appellant. Atty. Gen. Hart, for the People.

SEARLS, C. The appellant, H. M. Leonard, was convicted of the crime of embezzlement, and adjudged to suffer imprisonment in the state prison for the term of three years. He appeals from the judgment, from an or der denying his motions for a new trial, and 1 Rehearing denied.