'And, assuming the question to be an open one, we are satisfied that we have no jurisdiction of this appeal. The clear meaning of the constitution is that the litigation of independent issues involving money only, in an amount less than $300, must end in the superior court. The appeal is dismissed.

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

(99 Cal. 416)

BLUMBERG v. BIRCH. (No. 19,165.) (Supreme Court of California. Aug. 31, 1893.) MORTGAGES FORECLOSURE ACTION FOR DEFICIENCY-MERGER IN JUDGMENT-PLEADING. 1. In an action to foreclose a mortgage, in which service is made by publication only, the court has no jurisdiction to enter a personal judgment for a deficiency.

2. Code Civil Proc. § 726, prohibiting more than one action to recover a debt or enforce a mortgage, does not prevent a new action on a note which was secured by a mortgage to recover a deficiency left on foreclosure of the mortgage, as the amount realized on foreclosure may be treated as a payment on the note, and the action as brought to recover the balance.

3. A complaint to recover a deficiency after foreclosure of a mortgage securing a note, which shows the foreclosure and the fact that a deficiency resulted, states a good cause of action, whether it is based on the note, or on an indebtedness resulting from the foreclosure and deficiency.

Commissioners' decision. Department 1. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Action by A. W. Blumberg against Cullum Birch to recover a deficiency on a mortgage foreclosure. From a judgment for defendant, plaintiff appeals. Reversed.

H. L. Poplin, for appellant. Orr & Hall, for respondent.

BELCHER, C. It is alleged in the amended complaint in this case that on the 13th day of August, 1887, the defendant executed and delivered to the plaintiff his promissory note, and a mortgage on certain real property to secure payment of the same; that on the 15th of December, 1890, the plaintiff commenced an action against the defendant in the superior court of Ventura county to foreclose the said mortgage, and that a summons in the action was issued, and served on the defendant by publication only, he being then a nonresident of this state, and absent therefrom: that defendant did not appear in the action, and, after the time allowed by law for him to appear and answer or demur, his default was duly entered by order of the court; that the court then heard proof of plaintiff's demand set out in his complaint, and examined him on oath respecting any payments that had been made on account of such demand, and thereupon made and entered in the action its decree of foreclosure in the usual form; that under this decree, on March 27, 1891, an or

der of sale was duly issued to the sheriff of the county, and in pursuance thereof the sheriff advertised for sale, and on April 27, 1891, sold the said real property for the sum of $1,000, and applied the same to the payment of the said indebtedness, interest, attorneys' fees, costs, and expenses, as directed by said decree; that after so applying the said sum there remained due and unpaid to the plaintiff, on said indebtedness for principal and interest on the said note, and as determined by said decree, the sum of $1,746.99; that the sheriff's return being made, showing such balance or deficiency, judgment was duly docketed therefor in favor of the plaintiff and against the defendant on April 28, 1891; and that no part of said sum had been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of $1,746.99, with interest thereon, etc. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and his demurrer was sustained. Judgment was thereupon entered that the plaintiff take nothing, from which judgment he appeals.

There can be no doubt that the court, by the constructive service of the summons by publication in the foreclosure case, acquired jurisdiction to ascertain the amount secured by the mortgage, and to make and enter a valid decree of foreclosure, directing a sale of the mortgaged property, and the application of the proceeds to the payment of the amount SO secured, including costs and expenses. It did not, however, thereby acquire jurisdiction to enter or docket a personal judgment against the defendant for any deficiency left unpaid by the proceeds of the sale. Pennoyer v. Neff, 95 U. S. 714; Belcher v. Chambers, 53 Cal. 639; Anderson v. Goff, 72 Cal. 65, 13 Pac. Rep. 73.

The

But, notwithstanding no valid judgment could be entered for the deficiency, still, when properly ascertained, the deficiency constituted a subsisting indebtedness then due from the defendant to the plaintiff. plaintiff brought this action to recover that indebtedness, and in his complaint set out all the facts on which he based his right of recovery; and the defendant's contention is that no sufficient cause of action was stated, because (1) the personal judgment set out was void; and (2) the note was merged in the foreclosure judgment, and under section 726 of the Code of Civil Procedure no new or other action could be maintained thereon. It is true that the personal judgment docketed against the defendant was void, and also that under the section of the Code cited there can be but one action for the recovery of any debt, or the enforcement of any right, secured by mortgage upon real or personal property. It does not follow, however, that after the mortgage security is exhausted, leaving a deficiency which is no longer secured, no new action on the note

can ever be maintained. On the contrary, it has been held that an action may be maintained against an indorser of a note, payment of which has been secured by a mortgage given by the maker, to recover any deficiency resulting after a sale of the mortgaged premises under a judgment of foreclosure against the mortgagor. Vandewater v. McRae, 27 Cal. 596; Allin v. Williams, 97 Cal. 403, 32 Pac. Rep. 441. It seems to us, therefore, that in a case like this the amount realized from the proceeds of the sale may properly be treated as a payment on the note, and that an action thereon may be maintained to recover the balance left unpaid. But, however this may be, it is clear and not disputed that the defendant was justly indebted to the plaintiff, in some form, for the amount of the deficiency; and, being so indebted, the familiar maxim of the law, that where there is a right there is a remedy, "ubi jus ibi remedium," is applicable to the case.

Under our system of pleading, the complaint should contain a statement of the facts constituting the cause of action, in ordinary and concise language, and the court may grant the plaintiff any relief consistent with the case made. Sections 426, 580, Code Civil Proc. Here the complaint complies with the rule prescribed, and whether it be said to be based on the note, or on an indebtedness resulting from the facts stated, is, in our opinion, immaterial. In either view, it states facts sufficient to constitute a cause of action, and the demurrer was therefore improperly sustained. We advise that the judgment be reversed, and the cause remanded, with directions to the court below to overrule the demurrer.

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with directions to the court below to overrule the demurrer.

(99 Cal. 392)

BOWIE v. GRAND LODGE OF LEGION OF THE WEST. (No. 15,149.)

(Supreme Court of California. Aug. 31, 1893.) MUTUAL BENEFIT SOCIETIES PAYMENT OF CERTIFICATES-CHANGE IN LAWS-EFFECT ON MEM

BER.

1. Where a certificate in a mutual benefit society provides for its payment "in an amount to be computed according to the laws" of the society, and these latter provide that their provisions in regard to the payment of such certificates may be changed at any time, a member is bound by a change made in such laws after his procurement of the certificate, and before the time for its payment.

2. A change of the laws of a mutual benefit association in regard to the payment of benefit certificates is not an amendment of its certificate of incorporation or articles of associa

tion, within the meaning of Civil Code, § 362, providing the method for making such amendments.

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

Action by one Bowie against the Grand Lodge of the Legion of the West. From a judgment for plaintiff, defendant appeals. Reversed.

F. Wm. Reade, for appellant. Rogers & Chilstrom, for respondent.

DE HAVEN, J. The defendant is a corporation existing under the laws of this state, and belongs to the class known as mutual benefit associations. Under its constitution and laws it agrees to pay a stipulated sum of money to a designated nominee upon the death of the beneficiary member, and also issues to members known as "special benefit members" a certificate entitling them to receive an endowment, payable in installmenta during the life of such members. The defendant is without capital stock, and, like all associations of a similar character, depends upon the collection from its members of certain fixed assessments, in order to provide a fund for the payment of the certificates issued by it. Upon February 15, 1888, the defendant issued to the plaintiff a special benefit certificate of the sixth class, with 10 coupons attached thereto, each providing for the payment of a sum not exceeding $600, the first one maturing in June, 1891, and the tenth in the month of February, 1921; and by the terms of this certificate, the defendant agreed with plaintiff, in effect, that, should he live to the period of time set forth in each of the 10 coupons attached thereto, he would be entitled "to participate in the special benefit fund of the order, in an amount to be computed according to the laws of the order, not exceeding the amount named in the coupons, respectively." At the time of the issuance of this certificate the constitution and laws of the defendant contemplated that the defendant would make and collect a sufficient number of assessments to enable it to pay each maturing coupon in full, unless one assessment on each special benefit member would amount to $600, in which event there should be but one assessment. The constitution, however, contained a provision that "the constitution * relating to the beneficiary fund and the laws governing the same" might be amended by a three-fourths vote of all the members present at a regular meeting of the Grand Lodge.

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This action is brought by the plaintiff to recover the sum of $600, alleged to be due upon a coupon maturing in June, 1891, and attached to the special benefit certificate held by him. The coupon is in these words: "This first coupon issued by authority of the Grand Lodge, Legion of the West, shall not exceed $600, and shall not mature before

the month of June in the year 1891." The defendant in its answer alleged that the law of defendant in relation to its beneficiary funds was amended in March, 1891, so as to provide that, if the amount of an assessment called and received in the second calendar month next preceding the maturity of a coupon "shall be insufficient to pay the full face value of each and every certificate or coupon payable in the same calendar month,

* then the sum to be paid on any coupon or certificate payable in said calendar month, and which shall be in full satisfaction thereunder, shall be a proportionate amount of such one assessment, and all that can be claimed by any person." The answer further alleged that 37% coupons of the sixth class matured in the month of June, 1891, and that, according to the provisions of the laws of defendant, the proportion due on each, to be paid from the assessments received by defendant, would be $108, and that defendant had no other funds applicable to the payment of such coupons. The defendant offered to show, upon the trial of the case, that this alleged change in its laws had been made, but the evidence was, upon the objection of the plaintiff, excluded. The plaintiff recovered a judgment for the sum of $600, with interest thereon from the date of the commencement of the action.

The defendant appeals. and assigns as error the ruling of the court in not permitting it to show that its laws in relation to its beneficiary funds were changed, as alleged in the answer; and we are of the opinion that the court erred in excluding this offered evidence. The alleged change made in the laws of the defendant did not impair the obligation of plaintiff's contract or affect any vested right of his. The plaintiff, when he became a member of the defendant corporation, became also bound by its constitution and laws, and such constitution and laws became a part of his contract of membership, as much so as if they had been written therein in express terms, and his rights under the certificate issued to him were subject thereto and limited thereby. The certificate issued to plaintiff contained the express provision that "he shall be entitled to participate in the special benefit fund of the order, in an amount to be computed according to the laws of the order, not exceeding the amount named in said coupons, respectively." This certificate, when read and construed, as it must be, in connection with the constitution and laws of the defendant existing at the time of its issuance, and which provided that a change might be made in the laws of defendant governing such funds, means that the plaintiff is to participate in the special benefit fund of defendant in an amount to be computed according to the laws of defendant in force when the several coupons shall mature. "Parties may contract in reference to laws of future enactment,-may agree to te bound and affected by them as they would

be bound if such laws were existing. They may consent that such laws may enter into and form parts of their contracts, modifying or varying them. It is their voluntary agreement which relieves the application of such laws to their contracts and transactions from all imputation of injustice." Superior Commandery v. Ainsworth, 71 Ala. 436. This was also, in effect, so decided by this court in the case of Stohr v. Society, 82 Cal. 557, 22 Pac. Rep. 1125. In that case it appeared that Stohr had become a member of the defendant therein, and at the time he became such member the by-laws of that society proIvided that a member disabled by sickness should receive $10 per week. Subsequently the society limited the amount of benefits to be paid, and it was contended for the plaintiff therein that such amendment of the bylaws impaired the obligation of his contract; but the court thought otherwise, saying: “Undoubtedly, when the plaintiff complied with what was required of him as a member, the by-laws constituted a contract; and, unless the contract itself otherwise provide, it cannot be changed without the consent of all the members. But here the contract itself does provide otherwise. Under the averments of the second defense there is an express provision that the by-laws may be changed. * * This provision must be held to enter into and form a part of the contract, and, in legal effect, it is as potent as the express provision of the second defense. In

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the present case the plaintiff can have no right to have the contract remain unchanged, because, as we have seen, the contract itself provides that it may be changed. *** If the plaintiff has any right which is so fixed that it is not subject to change, we think it can only be to the fruits which ripened before the change was made; in other words, to such sums as became due before the new by-law was adopted." The change alleged in defendant's answer to have been made in its constitution and by-laws was not an amendment of its certificate of incorporation or articles of association, within the meaning of section 362 of the Civil Code. Judgment reversed.

We concur: MCFARLAND, J.; FITZGERALD, J.

(99 Cal. 419)

GISSON v. SCHWABACHER et al. (No. 15,059.) (Supreme Court of California. Aug. 31, 1893.) INJURY TO EMPLOYE-ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE.

Plaintiff was employed as a sack sewer in defendant's flour mill, and to do such other work as the foreman might direct. In complying with the latter's directions to assist him in taking apart some rollers on one side of the room in which he worked, he was caught in some belts and rollers, which he could not see on account of the darkness of the room, and which were not protected by any guards or

railing. The only lantern in the room, the foreman had at the place of the accident. The evidence on plaintiff's part tended to show that he had never been in that part of the room, and did not know of the location of machinery In that place. Held, that a verdict for plaintif would not be disturbed on the ground that he had assumed such risk, or was guilty of contributory negligence.

Department 2. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by one Gisson against one Schwabacher and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Estee, Wilson & McCutchen, for appellants. A. Ruef, for respondent.

DE HAVEN, J. This is an action to recover damages alleged to have been sustained by the plaintiff by reason of the dangerous condition of a flouring mill conducted by defendants, and in which plaintiff was employed as a laborer at the time he received the injuries complained of. The plaintiff recovered judgment in the superior court for the sum of $2,500, and the defendants appeal.

The plaintiff was employed as a sack sewer, and when not so employed, and when the necessity arose, it was also his duty to do such other work about the mill as the foreman might direct. On June 29, 1888, he was directed by the foreman to assist him in taking apart some rollers upon a raised platform on one side of the room in which he was engaged in sewing sacks, the foreman taking with him to the place where the work was to be done a lantern used by plaintiff when engaged in his ordinary work, and which was the only light in the room. Upon this platform, or, rather, passing over and above it, were rollers, belts, and pulleys, such as usually form part of the machinery of a flouring mill, but they could not be distinguished there, on account of the darkness of the room. The room was unlighted, except with the one lantern which the foreman took with him, as already stated, and this was not sufficient to light that part of the platform occupied by the plaintiff at the time, and the belts, pulleys, and rollers were not protected in any manner by guards or railing. While engaged with the foreman upon this platform, the plaintiff, in some way, stumbled and fell, and became entangled in the belting and pulleys referred to, and sustained the injuries on account of which this action is brought. The appellants do not dispute the fact that the place where plaintiff was injured was extremely dangerous to a person working there, and that they knew of its dangerous character; but their main contention is that plaintiff knew, or ought to have known, of the risk and danger surrounding the place, and that he voluntarily assumed such risk when he went upon the platform, and, fur

ther, that he was guilty of contributory neg ligence in working there without a light. It is undisputed in the evidence that there was but one light in the room, and this the foreman had with him at the time and place of the accident. The evidence upon the part of plaintiff also tended to show that he was never upon this platform before the accident, and that he had no knowledge of the location of the machinery, belts, and pulleys in that part of the mill where he was engaged, and that his general duties were not such as to require him to have such knowledge. We cannot, in view of the evidence, disturb the implied findings of the jury, to the effect that the injury received by plaintiff was not caused by any of the ordinary risks of his employment, and that he was not himself guilty of contributory negligence in going to work upon the platform under the circumstances above stated. Certainly, unless the plaintiff knew, or ought to have known, of the danger to which he was exposed in working upon the platform where he was injured, he cannot be said to have recklessly exposed himself to such danger, or to have voluntarily assumed these risks. Sanborn v. Trading Co., 70 Cal. 261, 11 Pac. Rep. 710. The court did not err in refusing to give the instructions requested by defendants. In so far as they correctly stated the law, they were embodied in the instructions given. The case was submitted to the jury upon instructions quite as favorable to defendants as they were entitled to, under the law, and of which, therefore, they have no right to complain. Judgment and order affirmed.

We concur: FITZGERALD, J.; McFARLAND, J.

(99 Cal. 440) PEOPLE. WONG AH LEONG. (No. 20,949.) (Supreme Court of California. Aug. 31, 1893.) CRIMINAL LAW-CROSS-EXAMINATION OF DEFENDANT-IMPEACHMENT.

1. On a prosecution for an assault with intent to commit murder with a knife, defendant testified as to his presence at the scene of the assault, and his arrest as the perpetrator thereof, but made no mention of anything happening after his arrest. Held that, under Pen. Code, § 1323, providing that a defendant who offers himself as a witness can be crossexamined only as to "matters about which he was examined in chief," defendant could not be cross-examined regarding a pistol which fell from his person just after his arrest.

2. Defendant, on a prosecution for assault with intent to commit murder, who testifies in his own behalf, cannot have his character impeached by evidence that he had a pistol on his person at the time of his arrest.

Department 2. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Wong Ah Leong was convicted of assault with intent to commit murder, and appeals. Reversed.

Robert Ferrall and Dorn & Dorn, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. The appellant was charged with and convicted of the crime of an assault with an intent to commit murder, the charge being that he committed the assault "with a deadly weapon, to wit, a knife, upon the person of one Leong Ly Chuen," and he appeals from the judgment and from an order denying a new trial.

Appellant contends that the court erred in certain rulings touching the admissibility of evidence. The prosecuting witness testified that while he was going up a pair of stairs leading from the street to the upper story of a house, he was cut by the appellant, who had followed him; that he (the witness) made an outcry, and immediately turned and pursued the appellant down the stairs, and that appellant was arrested a few steps frim the foot of the stairs by a man named Riordan. There was testimony on the part of defendant to the point that it was a third man who fled down the stairs, that the third man ran away and escaped, and that the appellant, who was passing along the street, had merely stopped near the foot of the stairs at the time of his arrest, because attracted by the outcry of the prosecuting witness. Riordan testified that he delivered the man whom he had arrested to some officers, and also testified, without objection, that, while the officers were taking appellant to the receiving hospital, a pistol fell from the person of appellant, and, going off, shot appellant in the leg. One of the officers, against the objection of appellant, also swore to the dropping of the pistol, and the pistol was admitted in evidence against appellant's objection.

The appellant was a witness in his own behalf, and in his testimony in chief merely gave an account of how he happened to be near the stairway at the time of his arrest. His narrative stopped at the point of his arrest. He said nothing about anything that occurred afterwards, and made no allusion to the episode of the pistol, but on crossexamination the prosecution immediately commenced asking him about the pistol; the very first question being, "Did you ever see that pistol before?" To this appellant's counsel objected as "not in cross-examination," and also as irrelevant and immaterial, and "calculated to convict the defendant of another and different charge." The objection was overruled, and appellant excepted. The ruling was clearly erroneous. tion 1323 of the Penal Code a defendant who offers himself as a witness can be crossexamined only as to "matters about which he was examined in chief." As the crossexamination was not as to a matter about which appellant had been examined in chief, and as it was not admissible for the purpose of impeaching his character, (Code Civil Proc. § 2051,) we cannot conceive of any theory

By sec

upon which it can be justified. See People v. O'Brien, 66 Cal. 602, 6 Pac. Rep. 695; People v. Bishop, 81 Cal. 116, 22 Pac. Rep. 477. The only plausible position that can be taken by respondent is that the matter inquired of in the cross-examination was not of sufficient importance to have been prejudicial to appellant. But, in the first place, the prosecution, after having persistently endeavored all through the trial to prove the fact that appellant had a pistol, can hardly be heard to say now that such fact was not important; and, in the second place, it is quite clear that evidence of the fact that appellant had a pistol, although he was only charged with having committed the crime with a knife, greatly prejudiced him in the minds of the jury. There is no escape, therefore, from the conclusion that for said error a new trial must be granted.

As to the other alleged errors in rulings on evidence, it is sufficient to say that no exceptions were taken at the proper time. The charge of the court to the jury is not upon its face erroneous. We do not think that the language of the charge prevented the jury from finding appellant guilty of a lesser crime included within the information, or apparently influenced them to find a verdict for the highest offense.

The judgment and order are reversed, and the cause remanded for a new trial.

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

(99 Cal. 452)

KIESSIG v. ALLSPAUGH et al. (No. 19,134.) (Supreme Court of California. Aug. 31, 1893.) CONTRACTORS' BONDS-ENFORCEMENT AGAINST SCRETIES.

1. Code Civil Proc. Cal. § 1183, provides that a building contract which is not recorded before work is commenced thereunder, when the contract price exceeds $1,000, shall be void, and no recovery thereon can be had by either party thereto. Held, that a bond for $5,000 given by the contractor to the owner to secure the latter against claims and liens for labor on materials, and which refers to a written contract that has not been recorded, made between the principal and obligee, is not within the meaning of the statute, and may be enforced without violating the above section. Kiessig v. Allspaugh, 27 Pac. Rep. 662, 91 Cal. 234, followed. Lumber Co. v. Neal, 27 Pac. Rep. 192, 90 Cal. 213, overruled; McFarland, J., holding that the cases are distinguishable. 2. The failure to record the contract did not increase the obligation of a surety on the bond.

Garoutte and Harrison, JJ., dissenting.

In bank. Appeal from superior court, San Diego county; George Puterbaugh, Judge.

Action by Kiessig against A. M. Allspaugh and M. S. Hall, as principals, and N. P. Lundeen, as surety, to recover on a building contractor's bond. From a judgment for plaintiff, defendant Lundeen appeals. Affirmed.