There is no evidence in the record herein which tends to rebut this presumption that the stock of the water company was taken and held by the defendant as collateral security for the debt of Hemme. Hemme testified that in March, 1880, when Flood sent for him, and demanded the stock, he went out, and brought in a certificate for 24,000 shares, which stood in the name of his wife, and that at Flood's request he thereupon caused it to be transferred on the books of the corporation to the name of Bailey, and then delivered the certificate to Flood; that he estimated the stock to be of the value of from $2.50 to $3 per share; that nothing was said, either by Flood or himself, about the value of the stock, or concerning the amount with which he should be credited therefor, nor was anything said as to the amount of the purchase price, or any sum fixed at which he should be allowed credit upon his account; that in June, 1880, Flood, having learned that he had 4,000 other shares of stock, again sent for him, and demanded this stock, also; and that, after having it transferred into the name of Bailey, he brought the certificates to the bank, and laid them down on the desk, in front of Flood, and walked out, without saying anything, and that no mention was then made of money or price to be allowed him therefor. This is, in substance, all the evidence of what was said by either Flood or Hemme at the time of the transaction, and in the absence of any statement or agreement by the parties concerning the relations thereafter to be held by them, respectively, to the stock, it becomes necessary to apply the foregoing principles of law to determine that relation. For this purpose it is also proper to consider the relations which Hemme and the bank held to each other, as well as any circumstances which would give to Flood a reason for demanding the stock, or to Hemme a reason for delivering it. Hemme was still heavily indebted to the bank upon the obligations for which he had given various collateral securities in 1877, many of which were still held by the bank, undisposed of. His indebtedness at that time amounted to several hundred thousand dollars, and Flood had said to him that, if he would give him what securities he had, he would carry him through. Accordingly, Hemme turned over to the bank a line of securities whose value was estimated to be nearly $400,000, and the bank thereafter proceeded to realize upon them, but they were insufficient to meet the amount of the indebtedness. In view of the fact that Flood's agreement with Hemme was based upon the implied promise of Hemme that he would turn over what he had, we find ample reason for Flood, when he learned that Hemme had this water stock, to demand that it should be turned over to him, and also for Hemme to comply therewith;

the case, it would follow that the bank would be regarded as holding the stock in the same capacity as it held the property which was turned over to it in 1877. There is no evidence in the record tending to show that the transfer in 1877 had any other character or effect than to operate as a collateral security for the indebtedness, and the relation of the parties at the time it was made as well as the interview between Flood and Hemme prior thereto, and the subsequent dealings of the bank with the property, as well as the statement of some of the plaintiff's witnesses, are confirmatory of the presumption that it was held as collateral security for that debt. The notes of Hemme, by which that indebtedness was evidenced, were retained by the bank after the transfer was made, and it does not appear that any credit was indorsed thereon, or that any amount was placed to the credit of Hemme's account, except as the various securities were realized upon from time to time. In Sutphen v. Cushman, supra, the supreme court of Illinois said: "The appellant was indebted to the appellee at the time the conveyance was made, and there is no evidence whatever of the discharge of that indebtedness. The bond and note by which the greater portion of it was evidenced were retained by the appellee, as well as the Lighthall notes, which had been pledged as security, and the payment of the indebtedness might have been enforced at any time thereafter. Until the contrary is shown the presumption is that the indebtedness was not satisfied by the conveyance. And absolute certainty in regard to the facts takes the place of presumption, in case the creditor retains the evidences of the indebtedness, the securities pledged for its payment, and collects the money due upon such securities.” In the present case the indebtedness of Hemme was retained upon the books of the bank as one of its assets, and the retention of the notes by the bank, without any indorsement of payment thereon, is persuasive evidence that it was the intention of the parties that the indebtedness should remain for its full amount until it should be reduced by the application of the proceeds resulting from the sale of the securities. In the absence of any evidence tending to show an agreement to reduce the indebtedness by any fixed amount, this is the necessary presumption, for it is not to be supposed that the bank became the owner of the property turned over to it, and at the same time held the indebtedness against Hemme for its full amount; and, in the absence of any agree ment regarding the amount for which the property had been accepted by the bank there would be no means of determining that the indebtedness had been reduced in any amount. In any attempt to enforce the indebtedness against Hemme, he could have compelled the bank to first exhaust these se

curities before calling upon him for any deficiency, whereas, if the bank was the owner of the securities, he would have had no such right, and the bank could enforce its indebtedness for the full amount, and still remain entitled to the property turned over to it by him. We have carefully examined the record, and are satisfied that there was no evidence before the court to sustain its finding that the defendant was the owner of the stock in question, and for that reason its judgment and order denying a new trial are reversed.

We concur: MCFARLAND, J; GAROUTTE, J.; PATERSON, J.; DE HAVEN, J.

(99 Cal. 9)

KOHLER v. AGASSIZ et al. (No. 14,197.) (Supreme Court of California. July 19, 1893.) ATTACHMENT AGAINST NONRESIDENT-SUBSCRIPTION TO CORPORATE STOCK-PROCEDURE. 1. A complaint in an action by the assignee of an insolvent corporation alleged that defendants subscribed for 500 shares of capital stock of $100 each, and agreed to pay the par value thereof at such times as, under the laws of the state, they might be called upon to pay the same; that they received the stock; that the corporation had been adjudged an insolvent; and that the full amount of the stock subscription would be insufficient to pay the debts. The prayer was for an account of the debts of the corporation; that it be decreed that the whole amount of the subscriptions were necessary to pay the debts; and that judgment be rendered against defendants for the sum owing by them. Held, that the complaint showed the action to be "upon a contract, express or implied," within the meaning of Code Civil Proc. $537, providing for an attachment against a nonresident defendant in such an action.

2. In such a case it is not necessary that the specific amount claimed to be due be shown by the complaint, nor by the contract itself, but, under Code Civil Proc. § 538, it must appear from the affidavit for attachment.

3. A motion to dissolve an attachment does not reach defects in the complaint.

4. Where persons subscribe for a certain number of shares of stock in a corporation, and agree to pay $100 for each share, in such installments and at such times as, under the laws of the state, they may be required to pay the same, a decree in chancery or an assessment by the board of directors is not necessary in order to sustain an attachment against such persons as nonresidents in an action to recover on the contract of subscription.

In bank. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by Charles Kohler, assignee, against A. E. R. Agassiz, Quincy A. Shaw, and others. From an order refusing to dissolve an attachment issued against said Agassiz and Shaw, they appeal. Affirmed.

Edward J. Pringle, for appellants. Pillsbury, Blanding & Hayne, for respondent.

PATERSON, J. This is an appeal from an order of the superior court refusing to dissolve an attachment. The action is brought by the assignee of an insolvent corporation, organized under the laws of the

state of California, against Agassiz, Shaw, and a number of others, to recover the balance due from them severally upon their subscriptions to the capital stock of the company.

The point made by appellants (Agassiz and Shaw) is "that the cause of action is not an attachable cause of action." So much of the affidavit of the plaintiff upon which the writ of attachment issued, as is essential here, is as follows: "Defendants A. E. Agassiz and Quincy A. Shaw in the said action are indebted to him in the sum of thirty-five thousand dollars, lawful money of the United States, over and above all legal set-offs and 'counterclaims, upon an express contract, for the direct payment of money, to wit, a subscription by said defendants to the capital stock of said California Land and Timber Company, which said subscription has been duly assigned in the matter of said corporation in insolvency to plaintiff, and that such contract was made and is payable in this state, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property. That both said defendants reside in the state of Massachusetts, and neither of them resides in the state of California. That the said attachment is not sought, and the said action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the said defendant." The statements of the affidavit are more ample than are required by statute in support of an attachment against a nonresident of the state.

The several subdivisions of section 537 of the Code of Civil Procedure provide that the plaintiff may have the property of the defendant attached "in an action upon a contract, express or implied, against a defendant not residing in this state." In the case of resident defendants, the right to the writ is only given in cases of contract made or payable in this state, and other limitations are prescribed, not mentioned as necessary in the case of nonresident defendants. There is also a marked difference in the requirement of the affidavit as between resident and nonresident defendants. As to the latter, it is only required to show "that the defendant is indebted to the plaintiff, (specifying the amount of such indebtedness over and above all legal set-offs or counterclaims,) and that the defendant is a nonresiIdent of the state; and (3) that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant." As against a nonresident defendant, the affidavit is not required to show that the payment of the claim is not secured by mortgage lien or pledge, or that it is upon a contract made or payable in this state, or upon a contract for the direct payment of money, or even upon a contract at all. The right to an at

tachment is only given by the statute quoted, supra, "in an action upon a contract, express or implied;" hence it can only properly issue in such an action, but that fact is not required to be shown by, the affidavit. The right to an attachment, and the mode of procedure for obtaining it, are the creatures of statute, depending for their existence and regularity upon the terms of the Code.

The attachment laws of the several states differ each from the other in so many particulars that without the utmost caution in comparing their provisions with our own we are in constant danger of being led astray or unduly influenced by decisions apparently in point, but in reality resting upon a different basis. Even our own adjudicated cases, many of them growing out of questions applicable to resident debtors, have no proper application to the different status occupied by nonresidents. An attachment may be said to have been properly issued when so issued in a case provided for by section 537 of the Code of Civil Procedure. It is regularly issued when the requirements of sections 538 and 539 are complied with. The right to an attachment being given, and the mode of its exercise prescribed by the statute, and the latter being exclusive, must be held to so far limit the right that it can only be enjoyed in the manner and to the extent provided for its enforcement. The Code provides that a writ of attachment may be discharged by giving a bond on behalf of the defendant. It also gives him the right to apply to the court or judge for a discharge of the writ, upon the ground that the same was improperly or irregularly issued. The irregularities which will warrant the discharge of the writ will usually appear upon the face of the affidavit or undertaking, or, where properly but prematurely issued, by a comparison with the summons and complaint. Where, however, the attachment has improperly issued,-that is to say, in a case not provided for by the statute,-the eviderce must usually be sought dehors the papers upon which it is evidently founded. It is not understood that the appellants here base their contention on any alleged irregularities in the mode of procuring the attachment, but rather that it was improperly issued, that it issued in a case not provided for by law. For evidence in support of this contention we are referred to the complaint on file. The complaint shows that the California Land & Timber Company is, and since 1885 has been, a corporation organized under the laws of the state of California for the purpose of carrying on a general lumber business, etc., having a capital stock of $1,000,000, divided into 10,000 shares of the par value of $100 each; that defendants Agassiz and Shaw jointly subscribed for 500 shares of said capital stock, and then and thereby agreed and

promised to receive the same from the corporation, and to pay therefor the par value thereof, to wit, $100 for each and every share thereof, "in such installments, and at such times, as said defendants might, under and according to the laws of the said state of California, be lawfully called upon and required by said corporation to pay the same, and then and there did pay said corporation the sum of $15,000 on account of and in part payment of said 500 shares;" that defendants still own and hold the stock, and that no part of the sum agreed by them to be paid has been so paid except $15,000, as aforesaid, and that $35,000 is due and owing and unpaid by defendants; that in November, 1887, the corporation became and was duly adjudged an insolvent, and plaintiff was duly appointed the assignee of the company, and duly qualified as such. The property of the corporation is incumbered by mortgages, judgments, attachment liens, etc., in excess of its value, and owes $295,000 of unsecured debts in addition. Some of the defendants are insolvent, and, as plaintiff believes, the full amount of the subscriptions of the defendants will be insufficient to pay the debts of the corporation. prayer is that an account may be had of the debts and liabilities of the corporation, and that it be decreed that the whole amount of the subscriptions is necessary to pay the debts and liabilities of the corporation, and that plaintiff have judgment against the defendants for the sum owing by them, and for such other and further relief as may be proper, etc.

The

It will be observed that the action is not brought to recover an assessment eo nomine, levied by the corporation upon the stock of the company, but counts upon a contract by which they agree to pay for their stock in such installments and at such times as said defendants might under the laws of California be lawfully called upon and required by said corporation to pay the same. Under the laws of California a stockholder may be lawfully called upon and required to pay assessments upon his stock to the extent of 10 per cent. of the par value thereof, except where the whole capital is not paid up, in which case he may be required, if the liabilities of the company demand it, to pay by way of assessment the full amount unpaid upon the capital stock. Civil Code, § 332. A stockholder may expressly agree to pay the amount of his subscription immediately, or at stated times, and thus relieve the corporation of the duty of making calls. He will be liable to pay upon such contract according to its terms. Phoenix Warehousing Co. v. Badger, 67 N. Y. 296– 300; Spel. Corp. § 555. It is matter of common knowledge that in this state corporations, and especially mining corporations, are in the habit of setting aside for sale at some established price a portion of their capital stock for the purpose of raising

what is termed "working capital," or a fund to be devoted to the development of their property. Assessments must be uniform, and under our laws must be levied upon all the capital stock. By this method of selling a portion of their stock companies may make such contracts with purchasers as to price, time, and manner of payment, etc., as may be agreed upon, and for nonpayment of the agreed price for stock in such cases an action at law may be maintained. So an agreement to take stock in a corporation to be organized presently may be enforced by the corporation after its organization. Electric Light, etc., Co. v. Johnson, 93 Cal. 538, 29 Pac. Rep. 126; West v. Crawford, 80 Cal. 19, 21 Pac. Rep. 1123. The allegation of the complaint in reference to payment for the shares "in such installments, and at such times, as said defendants might, under the laws of the state of California, be lawfully called upon and required by said corporation to pay the same," is simply a limitation as to the amount which defendants could be called upon to pay at a single payment, and as to the time at which such payments might lawfully be demanded, and did not prescribe the manner of its collection.

We are not called to turn this inquiry into a demurrer to the complaint upon the ground that it is ambiguous, unintelligible, or uncertain, but simply to determine whether (1) the complaint showed the action to be founded upon contract, express or implied; (2) whether it states facts sufficient to constitute a cause of action against the defendants; and, if not, (3) does it appear therefrom that it can be so amended as to state a cause of action upon contract? As against a nonresident debtor, these questions being answered in the affirmative, we must not concern ourselves further with the complaint. We are of opinion that the complaint is sufficient in these respects, and that the affidavit is ample to warrant the writ. The affidavit for the attachment shows the specific amount claimed to be due. It is unnecessary that the complaint should show this amount; there is no such requirement in the statute. Nor is it necessary that the contract itself should show the amount due. Dunn v. Mackey, 80 Cal. 107, 22 Pac. Rep. 64. A statement in the complaint, therefore, as to the specific amount claimed to be due, would not aid the attachment. Such a statement in the complaint would be of no greater weight than the statement in the affidavit. It would be as much a matter of opinion or conclusion in the one case as in the other. The complaint does show that the action is upon contract, and not in tort. It shows that the defendants received the stock, for which they promised to pay. This being the case, it is immaterial that the prayer of the complaint is for an ac

counting. Even on demurrer to the complaint the defendants cannot object to the prayer, and certainly, so long as the complaint contains every essential of an action upon contract, they cannot, upon motion for an attachment, accomplish what they could not upon demurrer. A motion to dissolve the attachment cannot reach defects in the complaint. But it is claimed that there can be no attacnable cause of action until after a decree in chancery, or an assessment by the board of directors; that an assessment is a necessary element of an attachable cause of action upon a subscription like the one in the case at bar. We do not think the terms of the agreement warrant this contention. The defendants agreed to pay $100 for each and every share of stock, in such installments, and at such times, as they might, under the laws of this state, be lawfully called upon by the corporation to pay. This provision does not say anything about the manner in which the corporation should call upon them; it simply provides for the times and amounts of payments. It is provided in the Code that, where it is necessary to pay the debts, the full amounts of the subscriptions may be called for; and the complaint here shows that this condition exists,-that the whole amount is necessary. In Hotel Co. v. Callender, 94 Cal. 120, 29 Pac. Rep. 859, the contract was to pay "at such times, and in such manner, as may be determined by the board of directors of said corporation, to be hereafter chosen." The court held that it was not necessary to a recovery on the contract of subscription that the directors of the corporation should have levied assessments upon the stock in the mode prescribed by the Civil Code. Glenn v. Saxton, 68 Cal. 353, 9 Pac. Rep. 420, cited by appellants, was an action to recover an assessment. The court cannot assume that the corporation may turn out not to be insolvent. That question has been conclusively adjudicated by the judgment of a competent court. Furthermore, it is expressly alleged that more than all the solvent subscriptions will be needed to enable the assignee to pay the debts and liabilities of the corporation. Under the laws of this state, we think there can be no serious question as to the right of the assignee who succeeds to all the rights of the insolvent to enforce them as fully as the insolvent could have done before the insolvency. If there had been no insolvency, the corporation could have maintained the suit, if we are right in the views above expressed, without levying an assessment. Sections 17, 18, 21, Insolvent Act.

The order appealed from is affirmed.

We concur: MCFARLAND, J.: GAROUTTE, J.; DE HAVEN, J.; HARRISON, J.

(98 Cal. 636)

In re SMITH'S ESTATE. (Supreme Court of California.

(No. 15,198.) July 11, 1893.) APPEALABLE Orders PERMITTING AMENDMENT OF STATEMENT ON MOTION FOR NEW TRIAL NEW TRIAL-DISCRETION OF COURT.

1. An appeal does not lie from an order permitting the amendment of a statement used on motion for a new trial from a judgment refusing the probate of a will, as such judgment is not a "final judgment," within the meaning of Code Civil Proc. § 963, subd. 2, providing that an appeal will lie "from any special order made after final judgment."

2. Where, in a contest over the probate of a will on the ground that the testator was of unsound mind at the time of making it, the evidence is in substantial conflict as to such issue, the trial court did not abuse its discretion in granting a new trial from a judgment refusing the probate.

Commissioners' decision. Department 1. Appeal from superior court, Sonoma county; R. F. Crawford, Judge.

Proceeding by Harry R. Smith and Allie W. Plumb against Octavia S. Smith to contest the probate of the will of John B. Smith, deceased, on the ground of mental incapacity of the testator. There was judgment refusing the probate. From an order permitting proponent to amend her statement used on motion for a new trial, and from an order granting a new trial, contestants appeal. Dismissed as to order permitting amendment. Affirmed as to order granting a new trial.

James W. Oates, Emmet Seawell, and J. P. Rogers, for appellants. Lippitt & Lippitt and A. B. Ware, for respondent.

SEARLS, C. This was a contest in the court below over the probate of the alleged will of John B. Smith. The contest was inaugurated by Harry R. Smith and Allie W. Plumb, son and daughter of deceased, upon the grounds that at the date of the execution of the will (December 28, 1878) said testator was not of sound and disposing mind and memory. There were other objections to the will, but the evidence was confined to the one above stated, upon which the contest was determined; hence the others are unimportant here. Upon the objection stated, the following issue or question was submitted to the jury: "Was John B. Smith of sound and disposing mind and memory when he made the proposed will, to wit, on December 28, 1878?" To this the jury returned for answer, "No." A decree was entered January 27, 1892, (the day the verdict was filed,) adjudicating that said John B. Smith, at the date of the execution of the will, (December 28, 1878,) was not of sound and disposing mind and memory, and refusing to admit the alleged will to probate. Octavia Susie Smith, the proponent, in due time gave notice of a motion for a new trial, upon the grounds: (1) Insufficiency of the evidence to justify the verdict; (2) errors of law occurring at the trial, and excepted to by the proponents of

the will. A statement in support of the motion was settled and allowed by the judge, and filed June 13, 1892, and, on the 24th day of June following, the motion for a new trial was argued, and taken under advisement by the court. On the 9th day of July thereafter, the attorneys for proponent gave notice of a motion to amend the specifications of error and insufficiency of the evidence in their statement on motion in important particulars, whereupon, on motion, the court set aside the order of submission of the motion for a new trial, and on the 25th day of July, 1892, granted the motion to amend the specifications, against numerous objections on the part of plaintiffs, (contestants,) among which objections were: (1) That no affidavit or evidence of mistake, inadvertence, surprise, excusable neglect, or fraud was furnished to the court; (2) because it was not proposed to set aside the certificate of the judge settling the statement; (3) because the statement had been settled by the judge, and there was no motion to set aside or cancel the same; (4) because the several proposed amendments raise new questions not raised by the orig. inal specifications. The action of the court in the several steps was objected to in ample form, and the rulings duly excepted to. The motion for a new trial was again submitted under the statement as amended, and a new trial was granted. This appeal is from the order granting a new trial, and from the order amending the statement on motion for a new trial. Virtually, there are two appeals,-one from the order amending the statement; the other from the order granting a new trial.

The first question presented is as to the right of appeal from the order amending the statement. Counsel for appellants contend that the appeal is properly taken from both orders under subdivision 2, § 963, Code Civil Proc. The subdivision of section 963 referred to provides for an appeal from various enumerated orders, among which are "from an order granting or refusing a new trial," and "from any special order made after final judgment." It is urged that the judgment refusing to admit the will to probate is a final judgment, within the purview of the Code, and, as the order permitting the amendment to the statement was subsequent thereto in point of time, it is "a special order made after final judgment," and hence appealable. In Estate of Calahan, 60 Cal. 232, which was an appeal from an order of the superior court vacating a decree of distribution and settlement of the final account of the executor, this court, in determining whether or not the order was appealable, held that the orders in probate proceedings from which an appeal would lie were only those enumerated in the third subdivision of section 963, Code Civil Proc., and in referring to the provision in subdivision 2 of the section, which gives