which does not materially concern the appellant, though the findings in that respect are sufficiently supported. Appellant also specifies several particulars in which he contends the court erred during the trial.

The judgment roll in the case of Swyney v. Rising et al. was properly received. The copy of the note set out in the complaint omitted the words, "at the same rate," but the complaint was amended in that respect by leave of the court. Upon direct examination Mrs. Sharp was asked: "During the year 1881, from December 1st down to and including the month of October, 1882, was Mr. Swyney, the defendant in this action, your agent in collecting rents for you?" Objection was made that it was immaterial, irrelevant, and incompetent, and not pertinent to any of the issues. The objection was overruled, upon the ground that it was introductory. The specifications do not show that any motion was afterwards made to strike out, while the record does show that defendant's accounts were put in evidence, showing not only that large amounts of rents were collected by the defendant for her, thus tending to show that she had moneys of her own, but also showing, among other things, that in his accounts to her of rents collected he charged her for the notary's fee for acknowledging the assignment of the Rising mortgage to himself, and for recording it, for paying the taxes on the mortgage, and for all the expenses of foreclosure of that mortgage, including a witness fee to himself and the expenses of sale. view of this evidence the preliminary question leading to its introduction was entirely proper. The witness, in answer to a question, said, "Yes, sir;" and proceeded to state other matters not responsive to the question, the material parts of which appear in other portions of her testimony, and which, so far as material, were harmless. The motion by appellant was to strike out the whole of the answer as not responsive. The motion was properly denied. A part was responsive, and therefore all the answer could not be stricken out.

In

Two other errors of law are stated in the specifications, being rulings upon the admission of testimony, and marked "D" and "E." I can see no valid objection that appellant could urge to either. Both questions were pertinent to the controversy between Mrs. Sharp and the estate, and, if erroneous upon any ground, it is not perceived how they could prejudice the appellant. These exceptions are stated in appellant's brief, but no comments of any character are made.

The remaining points relate to the findings, and have been disposed of, except that relating to the plea of the statute of limitations. Upon that issue the court found that the intervener did not discover that Swyney claimed to own the premises until shortly before, and less than three years before, she filed her complaint in the cause,

and that defendant actively and by artifice concealed from her the fact that he asserted a claim to the premises. Swyney was examined as a witness in the foreclosure case of Swyney v. Rising et al., and upon cross-examination was asked: "How much did you pay Mr. Sharp for that mortgage? Answer. Mr. Sharp was paid $3,500. Q. How much did you pay? A. I paid that amount. Q. Who from, his wife? A. Yes,, sir; I hold that for Mrs. Sharp. I am Mrs. Sharp's agent, and before the assignment of the mortgage was made Mr. Sharp was indebted to Mrs. Sharp for something like $4,000. Mrs. Sharp instructed me that Mr. Sharp would assign to me a mortgage, and in consideration of that assignment I was to remit to him the amount of that indebtedness, $3,500." It is clear from this evidence, given by Mr. Swyney at the time of the transaction, that he acted in the matter as the agent of Mrs. Sharp, who was the purchaser of the mortgage from Mr. Sharp, and that the foreclosure and purchase at sheriff's sale were for her benefit. It is not alleged that he ever purchased the property from her, nor paid to her the consideration she paid her husband for the mortgage. Sustaining, as he then admitted, the confidential relation of agent, Mrs. Sharp being the equitable owner of the mortgage and of the property paid for by the judgment, he could not acquire title to the property thus held by him in trust by adverse possession, without a clear and unequivocal repudiation of that trust, and an assertion of his own claim of title brought to her knowledge. The finding of the court upon the plea of adverse possession is justified by the evidence. The judgment and order appealed from should be affirmed.

C.

We concur: BELCHER, C.; VANCLIEF,

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(99 Cal. 207) CALIFORNIA ACADEMY OF SCIENCES v. FLETCHER. (No. 14,906.) (Supreme Court of California. Aug. 10, 1893.) ARBITRATION AND AWARD-JUDGMENT ON AWARD. Code Civil Proc. § 1283, provides that a submission to arbitrators may stipulate that it be entered as an order of the superior court, being filed with the county clerk, who shall thereupon note it in his register of actions, setting out the names of the parties and arbitrators, the date of the filing, and the time, if any, limited for the award. A submission was delivered to the clerk April 22d, and marked by him "Filed." The same day he noted in his register the names of the parties, and date of submission, and on May 12th added, in brackets, the names of the arbitrators, and the time limited, noting the time of the change of entry. The award had been made and filed April 23d, and judgment was rendered thereon May 14th. Held, that the clerk's entries were regular

enough to support the judgment, the "thereupon" of the section being less strict than "immediately," and the submission itself stipulating that it might be entered as an order "at any time."

Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Arbitration between the California Academy of Sciences, and W. M. Fletcher. Judg'ment on the award for Fletcher. The academy appeals. Affirmed.

W. C. Burnett, (Lester G. Burnett, of counsel,) for appellant. L. E. Bulkeley and William H. Jordan, (Aylett R. Cotton, of counsel,) for respondent.

MCFARLAND, J. The appellant, a corporation, and the respondent, a contractor, having certain differences about a building contract between the parties, did on April 15, 1891, enter into a written agreement, by which they submitted said differences to arbitration. By the submission the arbitrators were to determine certain enumerated issues, and were to find what, if any, balance of money was due from appellant to respondent; and it was stipulated therein "that the award to be made by said arbitrators or a majority of them, they all being present, shall in all things, by us, and each of us, be well and faithfully kept and observed." The submission also contained this clause: "And it is hereby agreed that the submission to arbitration may be entered as an order of the superior court of the city and county of San Francisco, state of California, at any time." On April 23, 1891, the arbitrators made their written award, by which they passed on all the issues submitted to them, and found that appellant owed respondent $7,453.30; and the award was on said April 23d filed with the clerk of said court. Afterwards, on May 7, 1891, the board of trustees of appellant passed a resolution by which it was declared that they revoked said submission to arbitration, and a notice of such resolution was served on respondent's attorney on May 9th. On May 14, 1891, judgment was entered in the superior court upon the award. Appellant afterwards moved to set aside the award, and it appeals from the judgment, and from the order denying its motion to set it aside.

Section 1283 of the Code of Civil Procedure is as follows: "It may be stipulated in the submission that it be entered as an order of the superior court, for which purpose it must be filed with the clerk of the county where the parties, or one of them, reside. The clerk must thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission when filed, and the time limited by the submission, if any, within which the award must be made. When so entered, the submission cannot be revoked without

the consent of both parties. The artitrators may be compelled by the court to nake an award, and the award may be enforced by the court in the same manner as a judg ment. If the submission is not made an order of the court, it may be revoked at any time before the award is made." The main contention of the appellant is that the clerk did not make such an entry of the submission in his register of actions as is required by the second sentence of said section 1283, and that, therefore, there was no jurisdiction to enter judgment upon the award, and appellant had the right to revoke the submission after the award had been made. What the clerk did, that is material her. is as follows: The submission was deliv ered to him April 22d, and was marked by him "Filed." He also, on the same day, made the following entry in his register of actions: "32,809. Dept. No. 6. W. C. Burnett, California Academy of Sciences, and W. M. Fletcher, 1891, April 22d. Agreement to arbitrate filed." And on May 12th he added to this entry as follows: "(Arbitrators, Seth Babson, J. B. Lo Romer, and J. B. Gonyean. Time limited by the submission to award before May 1, 1891. Changes in entry made May 12, 1891, 9 A. M.)" It will be noticed that the first entry, made April 22d, did not contain the names of the arbitrators, or the time limited for the rendering of the award, and that in other respects it complied with section 1283; but this entry, and the amendment made to it on May 12th, clearly constituted a sufficient compliance with that section, even though it be held that a strict compliance is necessary.

In determining whether there was authority for entering the judgment, the attempt of appellant to revoke the submission may be left out of view. The general rule is that neither party can revoke a submission to arbitration after the award has been made, and that rule is not in any way changed by the provisions of our Code. It is provided in section 1283, with respect to cases where it is stipulated that the submission may be entered as an order of court, that after the clerk has entered the proper order "the submission cannot be revoked without the consent of both parties;" but this provision is a restriction, and not an enlargement, of the right of revocation. common law either party could revoke before award; but under the Code a party who has stipulated that the submission be made an order of court cannot revoke before the award, after the clerk has made the proper court order. On the other hand, in such a case, "the arbitrators may be compelled by the court to make an award." But in no case does the Code give the right of revo cation after award, and with respect to that right the Code does not provide for two kinds of arbitration, as contended by ap pellant. Of course whether a judgment can properly be entered upon the award, or

At

whether the prevailing party must be remitted to his common-law remedies, is another question. Viewing the question, therefore, without consideration of the attempted revocation after award, we think that there was jurisdiction to enter the judgment. If it be admitted that the clerk did not quite fully enough perform his ministerial duty in the premises by his first entry of April 22d, still his addition to said entry made May 12th, constituted, with the first entry, a full compliance with the statute, and the amendment or addition was made before the judgment. So, when the judgment was entered, it rested upon a full entry in the register of actions of everything required by the Code to be entered there. The entry is not required to be made at any particular time. "Thereupon," as used in section 1283, does not mean "immediately." Moreover, it was stipulated that the order "may be entered at any time." The objection that the oaths taken by the arbitrators do not, in form, sufficiently comply with section 1285 of the Code, is overcritical, and has not force enough in it to upset the award. We think, upon this point, that there was a substantial compliance with the Code, although it is astonishing that parties, when instituting and conducting statutory proceedings, will not look at the statute, and follow its language, instead of trusting to their memories, or their general notions of what is sufficient. There are no other points in the case which require special notice. Judgment and order appealed from affirmed.

We concur: DE HAVEN, J.; FITZGERALD, J.

CALIFORNIA ACADEMY OF SCIENCES v. FLETCHER. (No. 14,905.) (Supreme Court of California. Aug. 10, 1893.) Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Arbitration between the California Academy Judgment of Sciences and W. M. Fletcher. on the award for Fletcher, and the academy appeals. Affirmed.

W. C. Burnett, (Lester G. Burnett, of counsel,) for appellant. L. E. Bulkeley and William H. Jordan, (Aylett R. Cotton, of counsel,) for respondent.

PER CURIAM. Upon the authority of California Academy of Sciences v. Fletcher, 33 Pac. Rep. 855, (No. 14,906, this day decided,) the judgment and order herein appealed from are affirmed.

(99 Cal. 271)

HERRLICH et al. v. KAUFMANN et al. (No. 14,495.) (Supreme Court of California. Aug. 11, 1893.) EXECUTION-ACTION AGAINST GARNISHEE. Code Civil Proc. $$ 716-721, provide that after execution issued, on a showing, by affidavit or otherwise, that a person owes the judg ment debtor more than $50, the judge may order such person to appear, and answer to the

debt. If he admit it, he may be ordered to apply the amount on the judgment. If he deny it, and the judge finds such denial bona fide, he may authorize the judgment creditor to bring suit against him for the debt. Held, that this remedy is exclusive, and cannot be supplied as a precedent to direct suit, by mere garnishment on execution.

Department 2. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by Julie Herrlich and John F. Hanlon against C. H. Kaufmann and others for certain moneys due from John McKenzie— an insolvent, who had assigned to said Kaufmann-to Margaret McDonald, plaintiffs' judgment debtor. Judgment for plaintiffs. Defendant Kaufmann appeals. Reversed.

Garber, Boalt & Bishop, for appellant. Chas. F. Hanlon, for respondents.

MCFARLAND, J. John McKenzie was a stockbroker, and on December 3, 1886, made an assignment for the benefit of his creditors to the defendant C. H. Kaufmann, pursuant to the provisions of the Civil Code on the subject. Prior and down to the assignment, McKenzie had been doing a stock business with one Margaret McDonald, and owed her, or some one for whom she was acting, several thousand dollars. Julie Herrlich, the plaintiff in the case at bar, recovered a judgment (the date of which is in dispute) against said McDonald for $6,210.86; and on December 31, 1886, she had an execution issued upon said judgment, and under said execution a notice of garnishment was served on the defendant Kaufmann, notifying him that all moneys in his hands, due Mrs. McDonald, were levied upon and attached. There was another execution and notice of garnishment, of a similar character, in December, 1887, and another in January, 1889. Thereafter, in February, 1889, this present action was commenced by said Julie Herrlich to recover from Kaufmann the amount alleged to be due to said Margaret McDonald on account of her dealings with McKenzie. Other parties were made defendants, and John F. Hanlon was made a plaintiff, upon the allegation that he owned a fractional part of the judgment in the case of Herrlich v. McDonald. The court found that there was due to Mrs. McDonald, upon her said stock business with McKenzie, the sum of $5,769.52, and judg ment was rendered against Kaufmann for that amount, the judgment being "that the plaintiff's have and receive of and from the defendant C. H. Kaufmann the sum of $5,769.52, and that execution issue therefor." Kaufmann appeals from the judgment, and from an order denying him a new trial.

Appellant contends that the complaint does not state facts sufficient to constitute a cause of action. He also makes a number of other points, as, for instance, that Kaufmann being an assignee under the Code, the

bill of the chancery practice." It is not necessary, however, to go to the length of saying that a creditor's bill could not be sustained here under any circumstances, for there might, perhaps, be cases in which the statutory proceedings would not afford adequate relief. But they must be pursued, unless in those exceptional cases in which it appears that equity must be invoked because legal remedies are unavailing. The law is correctly stated in Freeman on Executions, (section 394,) where the author says that proceedings supplementary to execution "supplant proceedings in equity, unless some special ground exists upon which to invoke the power of chancery," and in the case at bar there was no such ground. "A code of procedure is usually understood as presenting remedies which are exclusive in their nature, and which, when applicable to the relief sought, exclude or supplant all other modes of redress." Freem. Ex'ns, supra. And there is no need here of inquiring how strictly the statutory provisions must be followed, because in the case at bar there is no pretense that they were followed at all. The case of Roberts v. Landecker, 9 Cal. 262, cited by appellant, is not in point. In that case, Landecker had been garnished on a writ of attachment, and it was averred that at the time of notice of garnishment he had in his possession goods of the defendant, which he afterwards fraudulently disposed of, and converted to his own use. The practice act made the garnishee on attachment "liable to the plaintiff" for the property in his hands. at date of garnishment, and the court construed this to mean a statutory liability upon which a direct action could be brought, and held that proceedings supplementary to execution did not apply to it. But there is no such provision respecting a garnishment upon execution, and the court makes the distinction. Speaking of the sections relating to proceedings supplementary to execution, the court in that case say: "There is nothing in the chapter concerning attachments that refers to these sections, and nothing in the proceedings supplementary to the execution that properly applies to the peculiar circumstances of this case. They (the plaintiffs) sue upon a statutory liability for the value of the property. The proceedings supplementary to execution have another object in view. They seek to subject the property itself to sale under execution, or the debt to collection." The provisions of the statute at that time were the same as those now embraced in the Code.

But if it should be conceded that in a case like the one at bar the statutory provisions could be ignored, and relief sought in a court of equity by means of a creditor's bill, still the complaint here is entirely insufficient. Before equity can be invoked in such a case, it must be shown that remedies at law have

been exhausted, or would be unavailing; and with certain exceptions, of which the case at bar is not one, a necessary averment in a creditor's bill is that an execution has been returned unsatisfied. Bank v. Robinson, 57 Cal. 522; Mesmer v. Jenkins, 61 Cal. 153; Harris v. Taylor, 15 Cal. 350. "When a judgment creditor desires to bring a creditor's bill for the purpose of reaching assets which are not subject to execution at law, he must generally take out excution upon his judgment, place it in the sheriff's hands, and wait till that officer makes a return thereon, showing that he can find no property subject thereto. By this means he completely exhausts his legal remedies, and shows that they are unavailing. Then, and not before, he may successfully invoke the aid of equity to reach equitable assets." Freem. Ex'ns, § 428, and notes. "It is a necessary result from the whole theory of the creditors' suit that jurisdiction in equity will not be entertained when there is a remedy at law." Pom. Eq. Jur. § 1415, and notes. Now, in the complaint in the case at bar, there is not only a failure to aver the return of an execution nulla bona, or at all, but there is an affirmative averment that the judgment debtor, Mrs. McDonald, has always been "fully able to pay the whole of said judgment and execution, and has, and always has had, ample moneys and properties to make said payment." The judgment and order appealed from are reversed, and the cause remanded.

We concur: FITZGERALD, J.; DE HAVEN, J.

(99 Cal. 179)

DALEY V. QUICK. (No. 14,119.) (Supreme Court of California. Aug. 10, 1893.) LANDLORD AND TENANT -DANGEROUS PREMISESINJURIES TO TENANT-FALSE REPRESENTATIONS OF LESSOR'S AGENT-KNOWLEDGE OF TENANTAUTHORITY OF AGENT-KNOWLEDGE OF AGENT.

1. A tenant of an upper story of a building and wood shed is not entitled to recover damages of the lessor for injuries caused by the falling of the wood shed, on the ground that defendant, after the lease was made, falsely represented to plaintiff that such wood shed was safe, where plaintiff had been occupying the premises for 18 months previous to the injury, during which time he frequently expressed doubts as to its safety, and had as much opportunity as defendant to discover the defect.

2. A lessor is not bound by the representations of an agent to a tenant as to the safety of the leased building, where such agent does not have charge of renting the premises, but is employed by such lessor to make repairs on his buildings when called on by his tenants.

3. Under Civil Code, § 1709, providing that "one who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers," such lessor, if bound by the false representations of such agent, is not liable for such injuries, in the absence of evidence that the agent did not believe, or had no reasonable ground for believing, the representa tions to be true.