so held and possessed by them; or who, if they have not such possession, were deprived thereof by the United States military authorities when they went into the occupancy of said military reservation, or were deprived thereof by intruders or trespassers, against whom possession may be recovered by legal process." Defendant's predecessor in interest made proof of his right to a deed to the land in question under this act, and through this source title vested in defendant, by deed of the city, December 24, 1870. Plaintiffs in. troduced a deed of the land from the commissioners of the funded debt to J. W. Bowman, acknowledged in November, 1852; a deed of an undivided one-half thereof from Bowman to S. Hopkins, acknowledged in January, 1853; a deed from Bowman to plaintiffs of his remaining interest, acknowledged in July, 1881; and a deed from Hopkins to plaintiffs of his interest, acknowledged in April, 1880. Their title from this source depends for its validity upon the soundness of the claim, which they urge, that the land originally belonged to the city of San Francisco. This claim, however, is untenable. Upon the conquest of California title to the lands of the pueblo which had not passed into private ownership vested in the United States. Grisar v. McDowell, 6 Wall. 364; Trenouth v. San Francisco, 100 U. S. 253; Association v. Knight, 85 Cal. 470, 24 Pac. 818; Thompson v. Doaksum, 68 Cal. 596, 10 Pac. 199; People v. Holladay, 68 Cal. 443, 9 Pac. 655. It is not claimed that these lands were held in private ownership prior to the commissioners' deed. And, as it has been decided that the reservation of the Presidio was a valid executive act, which excluded these lands from acquisition by private individuals (Grisar v. McDowell, supra), it follows, necessarily, that the commissioners' deed was ineffectual and worthless as a conveyance of title. Plaintiffs next sought to establish a title by adverse possession; but, as they were unable to prove payment of taxes for the requisite number of years, their claim failed so completely and admittedly that it is not even argued in their briefs. Plaintiffs' final effort was directed to showing that defendant's predecessor was not in the bona fide possession of the land at the date of the act of relinquishment, and that defendant's deed was, consequently, procured by fraud. But neither of the plaintiffs, who are minors, was born at the date of the passage of this act. They themselves cannot claim, therefore, as beneficiaries under the act. They must rely, as was admitted, upon the strength of their grantors' rights. In this regard, then, they occupy the same, and no better, position than would these grantors. As to them, the fraud, if fraud there be, was committed in 1870, and they were chargeable with knowledge of it, since not only were the proceedings public, but they culminated in a recorded deed to the property which they claimed. This cause of action, then, was long barred, as to the

grantors of plaintiffs, and, consequently, to plaintiffs themselves. Love v. Watkins, 40 Cal. 561; Groghan v. Spence, 71 Cal. 125, 12 Pac. 719; Hecht v. Slaney, 72 Cal. 366, 14 Pac. 88; Ohm v. City and County of San Francisco, 92 Cal. 445, 28 Pac. 580.

Moreover, the deed to defendant, like a patent, is prima facie evidence that the officers performed their duty in issuing it; and so that it was issued to the rightful claimants. These presumptions can be attacked only by him who connects himself with the title, and not by a stranger, or one in hostility to it. Low v. Lewis, 46 Cal. 549; McCreery v. Sawyer, 52 Cal. 257; Latham v. City of Los Angeles, 87 Cal. 514, 25 Pac. 673; Payne v. Treadwell, 16 Cal. 220; Doll v. Meador, 16 Cal. 295; Churchill v. Anderson, 56 Cal. 55; O'Connor v. Frasher, 56 Cal. 499; Leroy v. Cunningham, 44 Cal. 599; Naglee v. Palmer, 50 Cal. 641; Palmer v. Galvin, 72 Cal. 183, 13 Pac. 476; Chapman v. Quinn, 56 Cal. 266; Peabody v. Prince, 78 Cal. 511, 21 Pac. 123. It was incumbent on plaintiffs, therefore, first to prove that they or their grantors were in the actual bona fide possession at the date when the act went into operation, and this, as the court says, and the evidence shows, they signally failed to do. The utmost which their evidence can be claimed to establish is that no one held such possession; but such a showing leaves plaintiffs strangers to the title, and against them, on this ground, the deed of the city to defendant becomes conclusive, since they cannot be permitted to attack it. In proof that the land was within the limits of the military reservation, there was admitted in evidence, over plaintiffs' objection, a portion of a map of the reservation showing the location of the land with relation to the boundary of the government tract. The judge granted the motion for a new trial upon the sole ground that he believed he had committed error in admitting this evidence, and, as it was evidence which greatly influenced him in his determination that the land was a part of the Presidio reservation, he deemed the ruling to be prejudicial to the interests of plaintiffs. We think the learned judge, in his conscientious efforts to avoid injustice, here, and not upon the trial, fell into error. The drawing, which was a portion of a map, was offered with the following certificate: "I, Charles S. Stewart, colonel of the United States corps of engineers, do hereby certify that I am the legal custodian of a map. of the Point San José U. S. military reservation, as located within boundaries of not less than eight hundred yards from said point, and that said map was prepared by and is part of the records of the United States war department, and that this map is a true and correct copy of so much of the original map in my custody as embraces the tract of land located in the city and county of San Francisco, within the former boundaries of said reservation, and bounded northerly by high-water mark of the bay of San Francisco, easterly

by the former eastern boundary of said reservation as originally located, southerly by North Point street, and westerly by Larkin street. In witness whereof, I have hereunto set my hand and private seal (having no official seal), this sixteenth day of April, 1883. C. Seaforth Stewart, Col. of Engineers, U. S. A. [Seal.]" This certification is in strict accord with the provisions of section 1918, subd. 9, and section 1923 of the Code of Civil Procedure.

The objections made by plaintiffs to the introduction were two: First, that the whole map should be introduced, and not a part; and, second, that there is no law making Col. Stewart a certifying officer of a copy of the map.

As to the first of these objections it is sufficient to say that section 1923, Code Civ. Proc., contemplates and provides for the introduction in evidence of a part of a map or document. The object of the evidence was to establish that the land in question was within the boundaries which the United States government had set to the reservation, and that portion of the map was offered which showed the land and the inclosing boundary. The whole map would have shown no more, or, if it would, it became the duty of plaintiffs' attorney, who had himself, under direction of the court, inspected the original instrument, to point out the precise particular in which the offered portion worked an injury by its incompleteness, or failed fully to express the truth of the matter sought to be proved. He did not do this. If the whole map would have shed no more light upon the question, the offered portion was material and admissible, and the remainder immaterial and unnecessary. The second ground of objection, which was that "there is no law making Col. Stewart a certifying officer of a copy of the map," is no better founded than was the first. The objection is tantamount to an admission that the map is a record of the war department, and that Col. Stewart is the legal custodian thereof, as he well might be under the customs, rules, or orders of the department. The certificate also recites these facts. Assuming them as true, the law authorizing him to make the certiticate is found in section 1918, subd. 9, Code Civ. Proc. Moreover, the official character of the officer as the legal custodian of the document, and therefore authorized to certify a copy of it, is proved, prima facie, by the certificate itself. Mott v. Smith, 16 Cal. 533, 552. And, finally, an error in admitting the map could not have been prejudicial to plaintiffs, because there was sufficient independent and uncontradicted evidence to show the location of the land; second, by presumption the deed from the city to defendant, which deed plaintiffs introduced in evidence as part of their case, showed the land to be within the reservation (Collins v. Bartlett, 44 Cal. 383); third, plaintiffs pleaded that the land was granted by the United States to the city and county of San Francisco in trust, and

failed to connect themselves with this government title.

As to the alleged newly-discovered evidence, it was either cumulative upon the proposition that no one was in the actual bona fide possession of the land at the time the act of congress became operative, or it sought to show that, though the land was taken by the United States authorities, and was within the boundaries which they laid out, still these boundaries were incorrect. Even if this latter evidence were admissible, no diligence is shown, and no reason why it was not procured upon the trial. At the same time it clearly appears, by counter affidavits, that plaintiffs' guardian, by reason of former litigation between the parties over the same land, must have been fully advised as to its materiality and bearing upon the present case, The order is reversed, and the cause remanded, with directions to the trial court to deny the motion for a new trial.

1. The maker of a note who, at the time of its maturity, has been garnished in attachment, then pending against the payee, cannot set up such garnishment as a defense to the action, nor to the recovery of costs and the attorney's fee provided for in the note.

2. His proper course is to move for a stay pending such garnishment proceeding.

Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county; W. G. Lorigan, Judge.

Action by V. Glugermovich against A. Zicovich. Judgment for plaintiff, and defendant appeals. Affirmed.

W. P. Veuve, for appellant. H. V. Morehouse, for respondent.

BRITT, C. Action on a promissory note for the sum of $473, made by defendant to plaintiff, and which fell due June 14, 1894. One of its provisions was that, in case of suit, a reasonable counsel fee should be allowed. On said June 14th Zicovich, the maker, was garnished in respect of his indebtedness on the note in an action brought by one Coschina in a justice's court against the plaintiff here, said Glugermovich. Such attachment was in force when this action was begun,-June 15, 1894,-and the defendant, Zicovich, pleaded the fact thereof in his answer. The suit of Coschina v. Glugermovich was yet pending and undetermined at the time of trial of the present case. Upon such trial plaintiff recovered judgment for said sum of $473, together with further al lowance for counsel fees and costs of suit.

Rehearing denied.

A proper mode of procedure for the garnishee under such circumstances was long ago pointed out by the decisions of this court. He may, by affidavit or other appropriate means, bring to the attention of the court where he is sued by his own creditor the facts of the garnishment, and apply for a stay of proceedings until the action of the attaching creditor can be disposed of. McKeon v. McDermott, 22 Cal. 667; McFadden v. O'Donnell, 18 Cal. 160. Doubtless, also, cases may arise where the court would find it expedient, for the purposes of justice, to allow the cause to proceed to judgment, but staying execution upon the whole, or enough thereof, to provide for the satisfaction of the demand for which the debtor is garnished; the end sought being to enforce payment from him once, and only once, and that to the person whose claim against him turns out to be legally superior. Drake, Attachm. 88 699-701; Jones v. Wood, 30 Vt. 268; Creed v. Creed, 161 Mass. 107, 36 N. E. 749. In this instance the defendant applied for neither a suspension of the action nor any stay of execution, and since, as the authorities cited show, the matter pleaded by him constituted no defense, the court was justified in rendering judgment absolute for the sum que on the note.

Nor do we see that the costs and attorneys' fees are on a different footing. The defendant promised to pay attorney's fees in case of suit. The garnishment was no bar to the right to sue. Hence, the recovery of attorney's fees seems, under the circumstances, necessarily to accompany any recovery at all. And so of the costs which are incidental to the judgment. What should have been the effect, on the matter of attorney's fees and costs, if, before final judgment here, the liability of Glugermovich, and the consequent force of the garnishment, had been established in the action brought by Coschina, is not now tor decision, though we incline to think that, in such a case, the defendant ought not to suffer prejudice from plaintiff's failure to pay his own debt, and that the right of the latter to recover attorney's fees or costs should be made contingent on his successful resistance of the action in which the debt due to him was attached. See Shealy v. Toole, 56 Ga. 210; Oriental Bank v. Tremont Ins. Co., 4 Metc. (Mass.) 1.

The judgment should be affirmed, but, upon the going down of the remittitur, the court should permit the defendant, on proper notice, to show what, if any, payment he has made, or is compellable to make, on account of the attachment of Coschina, and direct the satisfaction of the judgment to that extent. We concur: BELCHER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(113 Cal. 80)

PEOPLE v. HICKMAN. (Cr. 115.) (Supreme Court of California. May 28, 1896.) JURY-SPECIAL VENIRE-CHALLENGE CRIMINAL LAW CONFESSIONS-WHAT CONSTITUTES-WITNESS-IMPEACHMENT-OBJECTIONS TO EVIDENCE

-SUFFICIENCY.

1. Disallowing a challenge to the panel returned under a special venire because that venire was rendered necessary on account of the depletion of the regular venire, due to the liberality on the part of the judge in allowing excuses to those summoned, is not ground for reversal, in the absence of a showing that the judge abused his discretion in the matter of allowing the excuses.

2. A statement by defendant, in answer to the remark of the constable who arrested him that his possession of the stolen article looked suspicious, "Well, damned if it don't," is not a confession, so as to render it inadmissible without proof that it was voluntarily made.

3. A statement by defendant, in reply to the remark of a constable that he wished he had stopped a wagon which passed him the night of the theft, driving rapidly, that it was best for him that he did not, or otherwise he might not have stopped any more, is not a confession, so as to render it inadmissible without proof that it was voluntarily made.

4. Where accused testifies in his own behalf, to discredit him, testimony as to his general reputation in the community for "truth, honesty, and integrity" is admissible.

5. Where, to discredit accused's testimony, a witness is asked as to defendant's "reputation" for truth, etc., instead of his "general reputation," a general objection to such question, without calling the attention of the court to the particular vice in the form of the question, is insufficient.

Department 1. Appeal from superior court, Tulare county; W. A. Gray, Judge.

Jerome Hickman was convicted of grand larceny, and appeals from the judgment and an order denying him a new trial. Affirmed.

Theo. S. Shaw and E. C. Reichard, for appellant. Atty. Gen. Fitzgerald, for the People.

VAN FLEET, J. Defendant was convicted of grand larceny, and appeals from the judgment and an order denying him a new trial. He assigns numerous errors.

1. The exceptions taken in the impanelment of the jury are without merit. The course pursued by the trial judge as to the time and manner of requiring peremptory challenges to be exercised has been the established rule in criminal cases in this state for upwards of 25 years. People v. Scoggins, 37 Cal. 679. The challenge'for cause interposed by the prosecution to the juror Fulkreth was properly allowed. The challenge was sufficiently specific, and the juror, in having formed an opinion based upon hearing the sworn evidence taken on a former trial of the same case, was clearly disqualified. Nor was there any error in disallowing the defendant's challenge to the panel returned under the special venire. The necessity for the issuance of that venire arose from the want of a sufficient number of jurors remaining on the regular list to form a panel. The fact that the depletion of the regular panel may have arisen from too great a

liberality on the part of the judge in allowing excuses to those summoned thereon cannot affect the regularity of the special venire, the matter of excuses being one of wide discretion, and nothing being made to appear to show its abuse. The special venire was regularly issued and returned. Code Civ. Proc. § 227.

2. The constable who arrested the defendant was permitted, against the defendant's objections, to testify to certain statements or declarations made by defendant in a conversation between them after the arrest, and this ruling is assigned as error. The subject of the larceny was a calf, which was taken from the pasture of its owner, near the town of Porterville. In the evening before the theft the owner having been informed that there was a calf tied down in his pasture, got a friend and the constable, and drove out to the field. On the way out they met a two-horse wagon being driven rapidly towards town, but the night was too dark to enable them to identify the driver or the team. When they reached the pasture the calf was gone, but evidence of where it had been tied was found, and wagon tracks led from near the place to the premises of the defendant. The next morning a search of defendant's premises was made by the constable, and in a shed on the place was found a quarter of beef or veal, the hide and the head and entrails on the floor. Upon this discovery, the constable remarked to defendant, "Jerome, this looks kind of suspicious," and defendant answered, "Well, damned if it' don't." Subsequently, in talking with defendant on the way to the jail, the constable referred to the incident of meeting the wagon on the evening before, and, to quote his language as given in his testimony: "I remarked to him [defendant] that I had a notion to stop that wagon when we met it, or that afterwards I wished that I had stopped it; and he said that it was probably the best thing for me that I didn't try to stop it; that, if I had attempted to stop it, I probably would not have stopped any more,-something to that effect. I don't remember exactly the language he used." Defendant objected to this conversation, and asked that it be stricken out, on the grounds that it was irrelevant, incompetent, and immaterial, and constituted a confession made under duress of arrest and imprisonment, and was for that reason inadmissible.

Aside from the fact that the constable had testified that nothing was said or done by him to induce the defendant to talk, or any promise of clemency, or threats made to defendant, there was no error in the admission of the conversation in evidence. The statements or declarations of the defendant were in no sense a confession or admission of guilt, and did not require preliminary proof of their voluntary character. "A confession is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgements of guilt." People v. Le Roy, 65 Cal. 613, 4 Pac. 649, and cases there

cited. The fact that these statements of the defendant, when considered with the other facts in the case, had a tendency to prove guilt, did not constitute them confessions, or subject them to the rule applicable to the latter. "An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence (without the preliminary proof) merely because it may, when connected with other facts, tend to establish guilt." People v. Parton, 49 Cal. 637. In this case, as in those above cited, the defendant did not admit his guilt, but denied it from first to last. The evidence was, therefore, clearly within the rule of admissibility.

3. The defendant took the witness stand in his own behalf, and gave testimony tending to exculpate him from the charge. In rebuttal the prosecution introduced a number of witnesses who testified that the general reputation of defendant in the community for truth, honesty, and integrity was bad. This evidence was objected to by the defendant upon the grounds that it was irrelevant, immaterial, and incompetent, and that its introduction was an unwarranted attack on the character of defendant, which was not in issue, and constituted misconduct of the district attorney in offering it. This objection was overruled, and the admission of the evidence is now urged as error. The evidence was properly admitted. The moment the defendant submitted himself as a witness, his character, as such witness, for truth, honesty, and integrity, was involved, and he became subject to the same rules for testing his credibility before the jury by impeachment or otherwise, as any other witness. People v. Beck, 58 Cal. 212; People v. Bentley, 77 Cal. 7, 18 Pac. 799. The course of the prosecution was one of the recognized methods for attacking the character of a witness, and its application in the present instance was a proper one. Code Civ. Proc. § 2051.

A further objection is made in this connection. There were some six or seven impeaching witnesses in all put on by the prosecution. To all of them, except in two instances, the form of the questions calling for their knowledge was unobjectionable; the witnesses being asked, in the usual formula, if they knew "the general reputation of the defendant for truth, honesty, and integrity," etc. In two instances, however, the word "general" was, whether by inadvertence or otherwise, omitted in putting the question. The objection interposed by defendant in each of the. instances, including the two last, was the same as above stated, and no specific suggestion or objection as to the mere form of the question was in any instance made to the court or opposite counsel. Defendant now insists that in the two instances indicated his objection was clearly good, and should have been sustained. In the first place, while it is true that the inquiry is to be confined to the general reputation of the witness, it is not necessarily true that this object can only be

Commissioners' decision. Department 2.

in the case before us, in each of the two instances where the term "general" was omitted in putting the question, the whole manner of the inquiry and the character of the questions asked evinced as clearly to the witness on the stand and the jury that it was the general reputation of the impeached witness that was being sought as though that fact had been expressed in exact terms. This is all that is required. But, in the next place, if defendant wished to avail himself of the objection now made, he should have directed the attention of the judge by specifically. calling his attention to the vice in the form of the question now complained of. He cannot be heard to urge or point out here for the first time an objection of any more specific character than that made in the court below. People v. Bush, 68 Cal. 629, 10 Pac. 169; Howland v. Railway Co. (Cal.) 42 Pac. 983; People v. Frigerio, 107 Cal. 151, 40 Pac. 107. There are no other points requiring special notice. We find nothing reprehensible in the conduct of the district attorney or his assistant, either in the method of examination of witnesses or their argument to the jury. The case would seem to have been conducted throughout with a due regard for the rights of the defendant. We have examined the other assignments, and find that they involve no error. The judgment and order are affirmed.

1. Under a complaint for money deposited with defendant for plaintiff's use, alleging a promise to repay it to plaintiff on demand, testimony showing that the money was deposited with defendant to secure the return of certain property loaned to plaintiff under a contract of employment was inadmissible.

2. Where the answer denied specifically the allegations of the complaint, it was sufficient to raise the question of variance between the complaint and the proof.

3. Plaintiff contracted to sell goods manufactured by defendant under a guaranty as to profits, defendant furnishing a horse and wagon necessary to the business, to secure the return of which in good condition plaintiff deposited money with defendant. Held, that plaintiff, in order to recover the amount so deposited, must allege and show a fulfillment of the condition to return the property loaned.

4. The exercise of ordinary care to prevent loss or injury to a horse and wagon will not relieve plaintiff from liability for failure to return the property, unless such loss or injury was due to the defective appliances furnished by defendant.

5. On a recovery by plaintiff, he is entitled to interest only from the date of his demand for payment, and not from the date of the deposit.

1 For modification of opinion, see 45 Pac. 572. V.45P.no.2-12

of San Francisco; A. A. Sanderson, Judge. Action by Jean Barrere against P. G. Somps to recover money deposited with the defendant for the use of plaintiff. There was a verdict for plaintiff, and defendant appeals. Reversed.

Gordon & Young, for appellant. Naphtaly, Friedervirch & Ackerman, for respondent.

HAYNES, C. The allegations of the complaint in this action are as follows: "That the defendant is indebted to the plaintiff in the sum of five hundred dollars, United States gold coin, heretofore deposited by plaintiff with the defendant, to and for the use of this plaintiff, and which said sum the defendant promised to repay to plaintiff on demand; that, although thereto requested, defendant has neglected and refused, and still neglects and refuses, to pay over the said sum of five bundred dollars to this plaintiff." The prayer was for judgment for said sum, with interest and costs. A general demurrer to the complaint was overruled, and the defendant answered, and (1) specifically denied the several averments of the complaint; (2) alleged the deposit of said sum under an agreement in writing executed by the parties to the action, a copy of which is attached to the answer, and which is as follows: "Exhibit A. This agreement, made this 28th day of September, 1890, between P. G. Somps, of San Francisco, the party of the first part, and Jean Barrere, of the same place, the party of the second part, witnesseth: Said party of the second part does hereby agree to purchase soda water from said party of the first part at the rate of seventy-five cents per dozen, and to resell the same; and said party of the first part does hereby guaranty to said party of the second part at least twenty dollars per week profit on such resales made by him, provided said party of the second part devotes his whole time to this business. And in consideration of said party of the second part purchasing from said party of the first part exclusively all soda water to be resold by him, said party of the first part does hereby hire unto said party of the second part horses and wagon and necessary syphon bottles for facilitating the sale of soda water. The party of the first part shall have the right to terminate this contract at any time, but said party of the second part cannot terminate it except on thirty (30) days' notice; and, at such termination, said party of the second part does hereby agree to make a full disclosure of the names and addresses of all his customers to said party of the first part. And as security for the faithful performance of his part of this contract, and to save and hold harmless said party of the first part from all damages arising by or through the acts of said party of the second part, and to secure the return of all property hired by said