discharged, and also prayed for an order setting aside the insolvent's certificate of discharge. This latter order, it is conceded, the assignee had no right to ask; but the fact that he asked for an order to which he was not entitled was no reason for refusing to vacate the order by which he had been discharged, and accordingly the court made such an order, as it had the undoubted right to do, and the effect was to put the insolvency proceeding in the same condition in which it was before the assignee was discharged. Rued v. Cooper, 34 Pac. 98, (decided here August 31, 1893.) No one now questions the validity or effect of that order, and it also, like the proceeding by the creditor abovę mentioned, may be dismissed from further consideration. Here, then, was the simple and ordinary case of an insolvency proceeding, in which the insolvent debtor has been discharged from the claims of creditors, but the assignee is still actively engaged in the execution of his trust,-collecting the insolvent's estate for the purpose of distribution to the creditors. This being the condition of affairs, Hall, the assignee, filed a separate and distinct petition in the superior court having jurisdiction of the insolvency proceeding, alleging that the insolvent had concealed a portion of the property covered by her assignment to him, and praying for an order to her to come into court and submit to an examination touching the matter so alleged. Upon the filing of this petition the superior court made the order prayed for, and this is the order which we are here asked to prohibit the superior court from proceeding under.

The only question to be decided, therefore, is whether a superior court, in which an insolvency proceeding is regularly pending, has the power, on petition of the assignee, after the discharge of the insolvent debtor, to cite and examine the insolvent under section 24 of the insolvent law. The court, in its last opinion, says that this latter petition and order "seems to be based upon section 47 of the insolvent act." I cannot see why this should be said. Neither the petition nor the order refers to any particular section of any act. The petition states facts which bring the case within section 24, and counsel, in their argument, rely upon section 24. If this were not enough to give them the benefit of the provisions of that section, it might be suggested that the respect due to the orders and proceedings of the superior courts, and the presumptions in favor of their validity, should prevent us from holding such orders void if there is any law anywhere in the statutes which will sustain them; and even if counsel had relied exclusively upon section 47,-as they have not,-the action of the court should be sustained if it is fully warranted by section 24. Section 24 of the insolvency act gives to assignees in insolvency the right to take the same proceedings by "citation, examination," etc., against "persons

suspected of having concealed or embezzled, conveyed away or disposed of any property of the debtor," which are authorized by sections 1459-1461, Code Civil Proc., on the part of administrators or executors against persons suspected of having concealed or embezzled property of decedents. It does not confer a special jurisdiction over the insolvent debtor, as is done by section 47 of the insolvency act, and by section 26 of the national bankruptcy act, but a general jurisdiction over all persons suspected of concealing or embezzling any portion of the property assigned. Conceding that by the discharge of the insolvent the court bas lost the special jurisdiction over him conferred by section 47 and other provisions of the act, it does not follow that it has lost the general jurisdiction over all persons suspected, etc., conferred by section 24. Indeed, I suppose no one would contend that the court by the discharge of the debtor loses jurisdiction to cite and examine other suspected persons on petition of the assignee; and, if the court has this jurisdiction over the rest of mankind, I cannot see any reason why the insolvent himself should be exempt from it. He has the same inducement to conceal and embezzle the property that others have, and, as a general thing, much better opportunities. The provision is remedial, salutary, summary, and inexpensive, and if any one has less reason than another to complain of its application it is the insolvent, who is availing himself of the benefits of the law. If he is innocent, the examination cannot hurt him; if he is guilty, it is right that he should be compelled to divulge the facts. The conclusion of the court that he alone is exempt from a process to which all the world is subject cannot be sustained unless the discharge of the insolvent is held to operate as a license to him to embezzle the estate which he has assigned with a degree of impunity not enjoyed by any other person. But clearly his discharge has no such effect. Its whole scope is to release him from claims of creditors, and even as to them it is void if it has been obtained by fraud, and they may attack it directly or collaterally. As to the assignee and his claim to the property assigned, it has no effect. If he finds that the debtor has in his hands property covered by the assignment, whether concealed or embezzled before or after his discharge, it is the right and the imperative duty of the assignee to endeavor to recover it for the benefit of the creditors; and to this end he has, and ought to have, free recourse to all the remedies, direct and auxiliary, which the statute has provided.

The cases cited from the N. B. R. in the opinion of the court are not authority for its conclusion, for two reasons. In the first place, the rulings in the different circuit courts on this point are not uniform. See decision of Judge Blatchford, contra, in Re Heath, 7 N. B. R. 448. But more important than this is the fact that the national bank

ruptcy act contains no provision equivalent to section 24 of our insolvency law, giving a general jurisdiction over all persons "suspected," etc., to cite and examine them. The only provisions of that act applicable to a proceeding like that in question here are contained in section 26, and they apply to the bankrupt alone. In other words, they confer a special summary jurisdiction over him, which, as was held by the circuit court in the cases referred to, ends with his discharge. But this conclusion was based upon a construction of various clauses of section 26, no equivalent of which is to be found in any part of our insolvency law.

It is further to be observed that the argument in favor of this construction, so far as it is based upon the terms of the law, was not wholly satisfactory to the author of the opinion, for he seems to have considered it necessary to reinforce it by an additional argument founded upon the great hardship of holding to a construction that would expose the bankrupt during the remainder of his life to oppressive and vexatious proceedings on the part of his assignee. It is this part of the argument alone which is applicable to the present proceeding, and to my mind it is entitled to very little weight. To hold that an action or special proceeding capable of being used oppressively or vexatiously ought not to exist, would lead logically to the abolition of all legal remedies. There is no man living who is not continually exposed to the danger, such as it is, of mallcious prosecutions, civil and criminal; that is to say, it is in the power of any maliciously disposed person to put him upon his defense on a trumped-up charge. But this has never been deemed a sufficient ground for depriving individuals of the right to institute actions on their mere volition; and their liberty to do so has not resulted in any great hardship, for the very sufficient reason that few persons care to incur the trouble and cost of commencing a litigation in which they are sure to be defeated, and for which, if they have proceeded wantonly or maliciously and without probable cause, they are liable to an action for damages. I think the fear that this particular process might be employed to oppress unfortunate debtors is purely visionary; and, even if there were anything in reason or experience to justify it, I repeat that I cannot see why, when the rest of mankind is subject to it, the one person who has sought the benefits of the law should be alone exempt.

AUSTIN v. DICK. (No. 18,213.) (Supreme Court of California. Nov. 8, 1893.) Department 2. Appeal from superior court, Modoc county; C. L. Claflin, Judge.

Action by J. T. Austin against Morris Dick to contest defendant's right to an office for which contestant and contestee were candidates. From a judgment finding that no one was declared elected, defendant appeals. Affirmed.

VANCLIEF, C. Action to foreclose a mortgage executed by defendant to secure his promissory note for $2,000, made to his wife, Mrs. M. E. McClure, and by her assigned to the plaintiff, who is the son of defendant and his said wife. The only defense upon which any point is made here is that there was no consideration for the note or mortgage. The judgment was in favor of the plaintiff, and defendant appeals from the judgment, and from an order denying his motion for a new trial.

It is contended by counsel for appellant that the evidence does not justify the find. ing by the court that there was "a valuable and adequate consideration" for the execution of the note and mortgage. The making of the note and mortgage was one of the results of a compromise of pending lawsuits between defendant and his wife. On April 5, 1887, defendant and wife, with minor children, were residing on the mortgaged premises, which were then community property of the husband and wife, but had not been selected or recorded as a homestead by either. On that day, on account of some difference between them, the defendant angrily ordered his wife to leave their home. Thereupon they divided their household furniture and provisions of food, and she

left her house, and went to a house which she leased, about a mile from the mortgaged premises, saying then, and often afterwards, that she intended never to return to or to live with her husband; and she never did. About three weeks after thus leaving, she made and filed her declaration of homestead on the mortgaged premises, containing, among other things, the following: "I do now, at the time of making this declaration, actually reside with my husband and family on the land, but am temporarily abiding off said land and premises." On October 15, 1887, the defendant commenced an action against his wife to quiet his title against her claim of homestead, and to annul her recorded declaration thereof, as a cloud upon his title, on the ground that she was not residing on the land at the time said declaration was made and recorded. On July 3, 1888, the defendant commenced another action against his wife for a divorce on the alleged ground of her willful desertion. To this complaint she answered, denying that she had willfully deserted, etc., and also filed a cross complaint, praying for a divorce from her husband, but upon what ground | does not appear. On December 19, 1888, the divorce case was called for trial, when the attorney for the plaintiff therein asked for a recess for the purpose of effecting a compromise of the matters of difference between the parties, which was granted. During the recess the terms of a compromise of the action and cross action for divorce and the action to annul the declaration of homestead were agreed upon, and were entered in the minutes of the court in connection with the dismissal of those actions as follows: "The plaintiff appearing in person and by J. M. Hamilton, Esq., and C. F. Fishback and S. K. Welch, Esq., and defendant appearing in person and by R. W. Crump, her counsel, and on motion of counsel for plaintiff the action of N. H. McClure v. M. E. McClure is dismissed, and the cross complaint of the defendant herein in this action is, on motion of counsel for defendant, dismissed, and the action N. H. McClure v. M. E. McClure, to quiet title to real estate, is, by consent of counsel, dismissed; each party in each case to pay his own costs, respectively. It is agreed between the parties that N. H. McClure shall execute to M. E. McClure a note for $2,000.00, due one year from January 1, 1887, with interest at 10 per cent., secured by mortgage on the property claimed in this action to be community property, situate near Upper Lake, in this county. M. E. McClure agrees to convey to N. H. McClure all her right, title, and interest in and to said property claimed to be community property, and to relinquish the homestead filed thereon by her, and to assign the policy of life Insurance taken out by N. H. McClure for her benefit to the said N. H. McClure, free from all claims or demands against him whatsoever, of record or otherwise. Both parties

agree that each will convey to the other by quitclaim deed his interest or pretended interest in the property of the other in the state of Missouri."

The defendant testified that he agreed to this compromise reluctantly, but was induced to do so by the advice of his attorneys. Mr. Crump, the attorney for the wife in the divorce suit, testified that Mr. Fishback, attorney for the husband in that suit, drew all the papers relating to the compromise in such form as he desired, and that he thinks they were all executed at the time the note and mortgage were executed; and there is no evidence to the contrary. Nor is there any evidence that the wife had not fully performed her part of the compromise agreement before this action was commenced, though it is contended that the mode adopted by Mr. Fishback to divest her of her alleged homestead right was not effectual. The mode adopted was a conveyance by the wife to the husband of all her rights and interest in the community property, including the homestead. It is claimed that her homestead right (if she had any such right) could have been divested or abandoned only by the joint act of herself and husband in the mode provided by sections 1243 and 1244 of the Civil Code, and upon this alone depends defendant's contention that there was no consideration for the note and mortgage. It is unnecessary to determine what was the effect of the wife's declaration of homestead, made and recorded under the circumstances above stated; nor is it necessary to determine what effect her conveyance to her husband of all her right to community property had upon her disputed right to a homestead. It is not questioned, nor is it questionable, that the compromise agreement was a sufficient consideration for the note and mortgage while it remained unrescinded, and after its terms had been performed on the part of the wife in the mode dictated by the husband through his learned attorneys, it not appearing that she was ever requested to perform, or refused to perform, in any other mode. Besides, she could not have abandoned the homestead in the mode prescribed by the Code without the concurrent abandonment thereof by her husband; nor, if the agreement required her to abandon in that mode. could she have been put in default without the offer of the husband to join her in the act. While the compromise agreement subsisted as a valid contract, it remained a valid consideration for the note and mortgage, whether fully performed by the wife or not. Dr. Wharton, in his work on Contracts, (section 533,) says: "As has been incidentally noticed, a promise to compromise a claim utterly unfounded will not be regarded as a valid consideration. * * * It is otherwise when a suit is brought bona fide on probable cause; and a promise to compromise such suit is a valid consideration, even though the

suit should be held to be unfounded. Were it otherwise, there could be no compromise of litigation, since there is no litigation in which one or the other party, if the case be pressed to judgment, does not fail to make out his case. Not only will such agreements, when there is no fraud, be sustained by the courts, but they are highly favored as productive of peace and good will in the community, and reducing the expense and persistency of litigation. The rule is peculiarly applicable in family settlements, where right and wrong on both sides are so often dependent on feeling; in which cases the courts, unless there be an imposition, will not undertake to weigh actual gain or loss." In this case there is no pretense of fraud or imposition, nor is it pretended that the compromised suits were not brought and defended bona fide. It is further to be observed that Mrs. McClure died on January 31, 1890, two days after having assigned the note and mortgage to the plaintiff, who had assisted in supporting her after her separation from her husband. It would seem that her death, under the circumstances, relieved defendant's title from any cloud caused by her declaration of homestead, though this question is not necessarily involved, and need not be decided. I think the judgment and order should be affirmed.

1. A trunk alleged to have been stolen by defendant was found in a shanty which had been occupied by defendant and another for sev eral weeks. The officer searching for it found it, with another trunk, under defendant's bed, covered over with old clothing; and defendant, when asked what it was, replied that it was nothing. When ordered to open it, he said he did not have the key, but when the trunk was examined the lock was found to be broken, and a letter was found in it, addressed to defendant's brother. Being asked whose name it was, and how it came there, defendant said it was his name, and that he put the letter in the trunk himself. Defendant said that the trunk had been left there two weeks before by a man whom he did not know, and who promised to pay him for keeping it. It was shown that the trunk had been stolen about two weeks before. it was found in defendant's possession. Held sufficient to warrant a finding that defendant stole the trunk.

2. As the evidence clearly proved that the trunk was found either in the sole possession of defendant, or the joint possession of defendant and the person occupying the room with him, the court properly refused to charge that if the trunk was only found in a house which defendant occupied jointly with another, equally capable of having committed the theft, then no defi

nite presumption of guilt could be made, the instruction not being applicable to the facts.

3. It was not error for the court to permit a witness to describe the trunk found with the one that had been stolen, such evidence not being given to show that such trunk had been stolen or lost.

Commissioners' decision. Department 1. Appeal from superior court, San Bernardino county; George E. Otis, Judge.

Jaratarno Nicolosi was convicted of larceny, and appeals. Affirmed.

E. R. Annable and Paris & Allison, for appellant. Frank F. Oster, Dist. Atty., for the People.

VANCLIEF, C. The defendant and Giovanin Lena were, by information, jointly accused of the crime of grand larceny, committed by feloniously stealing and carrying away a trunk and contents thereof, consisting of ladies' apparel, the property of a Miss Jennie Fetty. On a separate trial the de fendant was found guilty, and sentenced to imprisonment in the state's prison; and he brings this appeal from the judgment, and from an order denying his motion for a new trial.

1. Counsel for appellant contend that the evidence is insufficient to justify the verdict, in that there was no evidence tending to prove the defendant guilty, except proof that the stolen property was found in his possessien. But I think there was other evidence sufficiently corroborative of the inference from possession of the stolen property to justify the verdict. The trunk was found in the possession of defendant and Lena, in a small, rough, 10x14 board shanty, in which they had been living only about four weeks, in the town of Riverside, San Bernardino county, by J. W. Dickson, the marshal, and F. P. Wilson, constable, of that town. The shanty bad but one window, and that was darkened by boards nailed on the inside, and a gunny sack on the outside. The mar shal, while searching for the trunk in the shanty, and in the presence of defendant and Lena, discovered something under their bed or bunk covered with a quilt, gum coat, and other old clothing, and asked defendant what it was. Defendant answered, “Oh, nothing." The marshal then pulled off the covering, and discovered two trunks, one of which was Miss Fetty's trunk, and ordered defendant to open it. Defendant said: "It ain't my trunk. I cannot open it up. 1 haven't got any key to the trunk." Upon examination, the marshal discovered that the lock had been broken, and he opened the trunk, and found therein an envelope addressed as follows: "Mr. L. Nicolosi. No. 105 Upper Main St., Los Angeles, Calif." Being asked whose name that was, and how it came there, defendant said: "That is my name. I wrote it and put it there two or three days ago." Being reminded that he had said he could not open the trunk, and.

er.

The adasked to explain, he said nothing. dress on the envelope was that of his brothDefendant further told the marshal that the trunks were brought there about two weeks before by a man who drove up with a light spring wagon and a gray horse, whom he had never seen before nor since, and who told defendant that he (the stranger) would like to leave those trunks there for a few days, and that he would call for them, and pay for the trouble of keeping them; and thereupon he (defendant) and his partner (Lena) carried the trunks into their cabin. Defendant also said he had not been doing anything since he came to Riverside; that he had come up from Los Angeles to pick oranges. It was proved that Miss Fetty's

trunk had been stolen about two weeks before it was found in the possession of defendant and Lena. These circumstances of themselves were sufficient to excite a very strong suspicion of defendant's guilt, even though it had not been known that Miss Fetty or any other person had lost a trunk, and together with the proof that the trunk had been stolen, and found in the possession of the defendant, justified the verdict of the jury. People v. Chambers, 18 Cal. 383; People v. Velarde, 59 Cal. 457.

2. The defendant asked the court to instruct the jury that if the trunk was "only found lying in a house or room in which he (defendant) lived jointly with another equally capable of having committed the theft, then no definite presumption of guilt could be made." Had the evidence tended to prove only that the trunk was found in a room occupied by defendant and Lena, without showing any connection or relation between them, or how the trunk came there, perhaps it would have been insufficient to prove possession of the trunk by the defendant, individually or jointly with Lena, in which case the instruction asked might have been proper. But the evidence is clear, and without conflict, that the trunk was found either solely in possession of defendant, or in the joint possession of defendant and Lena. This was admitted by the defendant, who testified that he and Lena had voluntarily taken it into their room, and kept it there about two weeks. Therefore, the instruction asked was not applicable to the evidence. It falsely assumed that there was evidence by which the jury might have been justified in finding that the trunk "was only found lying in a house or room" occupied jointly by defendant and another, whereas, it was clearly proved that the trunk was not only thus found, but that it had been taken and kept there by the voluntary assistance of the defendant, and was in his possession.

3. While Dickson was testifying for the people, he spoke of and described the other trunk found with Miss Fetty's trunk under defendant's bed. Defendant's attorney objected to "his saying anything in regard to

We concur: HAYNES, C.; BELCHER, C.

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

(100 Cal. 345)

In re WERINGER'S ESTATE. (No. 19,184.) (Supreme Court of California. Nov. 25, 1893.) HUSBAND AND WIFE PROVISIONS FOR WIFE MEDICAL ATTENDANCE-FUNERAL EXPENSES AND MONUMENT-ADMINISTRATOR'S ACCOUNT.

1. A husband who has means being declared liable by Civil Code, § 174, for his wife's support, her estate should not be charged with the expense of doctors, nurses, and medicines obtained by him for her in her last illness.

2. Error in allowing an item in an administrator's account for family allowance will not be presumed, but as, in case the court made an order granting family allowance authorizing payment of the amount named in the account, no voucher would be necessary, one alleging error must show that such order was not made.

3. A husband is liable for the funeral expenses of his wife, and therefore her administrator should not be allowed for expenditures therefor.

4. While a husband's duty to give his wife decent burial includes the placing of some mark of identification over her burial place, still if he was poor, and she left a considerable estate, the court might allow a reasonable amount from her estate towards a monument.

Department 1. Appeal from superior court, Kern county; A. R. Conklin, Judge.

Accounting by the administrator of Lucy Weringer, deceased. From a decree settling the account, her distributees appeal. Reversed.

Mahon & Laird, for appellants. E. Brundage, for respondent.

PATERSON, J. This is an appeal from a decree settling an annual account of the administrator. Among the items allowed were the following: "Dr. Cook, medical services last illness, $45.50; Dr. Fergusson, same, $10.50; Dr. Rogers, same, $50; Blodget & Mary Dougherty, Dudley, drugs, $18.35; nurse last illness, $25." We think the objections to these items were properly taken by the contestant, and that they were improp