general laws of the state." Section 86 of "An act concerning the organization of cities and villages" (see Laws 2d Sess. 1893, p. 124) provides that "the city council of cities and boards of trustees in villages shall within the first quarter of each fiscal year pass an ordinance to be termed the 'Annual Appropriation Bill,' in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, not exceeding in the aggregate the amount of tax authorized to be levied during that year; and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. No further appropriation shall be made at any other time within such fiscal year, unless the proposition to make each appropriation has been first sanctioned by a majority of the legal voters of such city or village either by a petition signed by them, or at a general election or special election duly called therefor, and all appropriations shall end with the fiscal year for which they were made." Section 82 of said act provides, among other things, that the council or trustees of each city or village may assess and collect "not to exceed ten mills on the dollar to defray its general and incidental expenses, together with any special assessment or special taxes, or amounts so assessed as taxes under the provisions of this chapter and such sum as may be authorized by law to be levied for the payment of outstanding bonds and debts." In pursuance of the provisions of said sections 82 and 86 of said act, the council of the city of Moscow passed said ordinance or appropriation bill, and a tax of 10 mills on the dollar of all the taxable property of said city was levied and collected. The entire fund raised thereby was appropriated to be expended in payment of the necessary expenses and liabilities of said corporation for the fiscal year ending the first Tuesday in May, 1896. No tax was levied to pay the warrants referred to in this suit, and the money raised and appropriated as aforesaid cannot legally be diverted for that purpose. See, also, section 66 of same act, which is as follows: "All warrants drawn upon the treasurer must be signed by the mayor or chairman, and countersigned by the clerk, stating the particular fund or appropriation to which the same is chargeable and the person to whom payable, and for what particular object; no money shall be otherwise paid than upon such warrants so drawn. Each warrant shall specify the amount levied and appropriated to the fund upon which it is drawn, and the amount already expended of such fund."

The evident intent of the provisions of section 3 of article 8 of the constitution of Idaho, as well as the provisions of the act above cited, was to make the revenue or income collected each year pay such year's indebt

edness, unless by the assent of two-thirds of the qualified electors, given as provided by law, other indebtedness was authorized. Said section of the constitution, however, does not apply to the ordinary and necessary expenses authorized by the general laws of the state. In Bannock Co. v. C. Bunting & Co., 37 Pac. 279, referring to said section of the constitution, this court said: "The provisions forbid positively the incurring of any indebtedness in any manner or for any purpose exceeding in that year the income and revenue provided for it without the assent of two-thirds of the electors." Section 18 of article 11 of the constitution of California is similar to section 3 of article 8 of the coustitution of Idaho; and the supreme court of that state, in Gas Co. v. Brickwedel, 62 Cal. 641, held: "Each year's income and revenue must pay each year's indebtedness and liability, and no indebtedness or liability incurred in any one year shall be paid out of the income or revenue of any future year." In Shaw v. Statler, 74 Cal. 258, 15 Pac. 833, the court, in referring to the above quotation from Gas Co. v. Brickwedel, says that said quotation was only dictum in that case. The court further says: "But we think it is a correct exposition, at least, so far as the revenue of any particular year is required for the expenses of that year." In Schwartz v. Wilson, 75 Cal. 502, 17 Pac. 449, the court, referring to Gas Co. v. Brickwedel, supra, says: "Were the question discussed in that case a new one, we might hesitate in reaching the conclusion arrived at there; but in view of the very salutary influence it is calculated to exercise over public affairs, and in view of the fact that since 1882 all persons dealing with these municipalities must be presumed to have done so in view of the constitutional construction given in that case, we are not inclined to overturn it." I think the framers of our constitution had in view the "salutary influence" referred to in the last-cited case. Municipal indebtedness incurred during a given fiscal year cannot be paid out of the income or revenue of any future year unless it be especially raised for the payment of such indebtedness. The judgment of the court below is affirmed, with costs of this appeal in favor of respondent.

MORGAN, C. J., and HUSTON, J., concur.

(112 Cal. 683) (Cr. 96.)

PEOPLE v. STRASSMAN. (Supreme Court of California. May 22, 1896.) PERJURY -EVIDENCE-INDICTMENT-ALLEGATION AND PROOF-VARIANCE.

1. A person cannot be convicted of perjury for having falsely sworn, in qualifying as surety on a bail bond, that he was the owner of certain real estate, where the evidence merely proves that title to the property was in another person at a date more than a year prior to defendant's affidavit of ownership, but does not show who had title when such affidavit was made.

2. Where the indictment charges defendant with perjury committed in qualifying as surety on the bail bond of a person held to answer for the crime of grand larceny, and the evidence shows that such person was in fact arrested, examined, and held on a charge of robbery, the variance is fatal.

Department 2. Appeal from superior court, city and county of San Francisco.

Leo Strassman was convicted of perjury, and appeals. Reversed.

Carroll Cook, for appellant. Atty. Gen. Fitzgerald, for the People.

HENSHAW, J. Defendant was indicted for and convicted of the crime of perjury. It was charged that, in qualifying as a surety upon the bail bond of one Kate Farley, who had been held to answer upon a charge of grand larceny, the defendant falsely swore that he was the owner of a certain piece of real property in the city and county of San Francisco.

1. Upon the trial evidence was introduced which traced the record title to the property into one Hilda Strassman more than a year before the date of the alleged perjury. Here the evidence of ownership came to an end. No witnesses were called to prove, and no other evidence was introduced to show, who was the owner or in possession of the property at the time when defendant made affidavit to his ownership.

Hilda Strassman

was not called as a witness, and there was not even the negative evidence of her testimony that she had not conveyed to the defendant or to another the title which had vested in her. That a conviction of perjury cannot be supported upon such insufficient and incomplete evidence does not admit of discussion. The only argument advanced by the people is that, having shown title in Hilda Strassman more than a year before the date of the alleged crime, the law presumes that she continued to own it until the defendant overcomes the presumption. But all such disputable presumptions give way before the presumption of innocence, which belongs of right to every defendant, and which remains with him until the prosecution by convincing proof has established his guilt. As is said in People v. Douglass, 100 Cal. 1, 34 Pac. 490, there cannot be two presumptions in a criminal case. In the recent case of Hunter v. Hunter, 43 Pac. 756, this court considered at some length the question of conflicting presumptions, and quoted with approval from Matthews on Presumptive Evidence: "A charge of an act of immorality or of disobedience of a positive law will not be received, unless supported by direct evidence. Circumstances showing probability merely are not enough. The fact averred must be conclusively proven."

2. While the indictment charged the defendant with having committed perjury in justifying upon the bail bond of Kate Farley, held for trial for grand larceny, and while

the recital in the bail bond itself was that Kate Farley had been committed for trial for the crime of grand larceny, the evidence, and all the evidence, showed that, in fact, Kate Farley had been arrested, examined, and held to answer for the crime of robbery. So far as the proofs disclose, she was not under arrest for grand larceny, or for any other crime saving that of robbery. Kate Farley, then being in custody for robbery, would not be entitled to her liberty upon the bail bond given, and it was mere negligence upon the part of the officer having her in charge to release her. There was no justification, in law or in fact, for her enlargement upon the robbery charge under the bond reciting the separate and distinct crime of grand larceny. The materiality of defendant's false oath is shown by the fact, pleaded in the indictment, that it was given in the course of judicial proceedings pending against Kate Farley. Upon the trial there was no evidence offered to substantiate these averments. No showing is made that proceedings upon a charge of grand larceny are or have been pending against her, and the proof is limited to the establishment of a fact at total variance with the charge in the indictment, namely, that the proceedings against Kate Farley were for the crime of robbery. "In respect to records," says Wharton (Cr. Ev. § 115), "great care is necessary, as any variance at common law is fatal. Thus, at common law, if the whole record to which perjury is incidental is not accurately set forth, there must be an acquittal." The question, then, resolves itself to this: The indictinent charged the perjury to have been committed in the course of the proceedings had in the matter of the proceedings against Kate Farley for the crime of grand larceny. It was a necessary averment to show the materiality of the false oath. The matter was one of record. The record was or should have been before the officer who drew the indictment. Upon the trial no effort is made to support this averment, and the prosecution rested its case upon evidence of record proceedings in another and different case. The averment being material, the variance between it and the proof is fatal; or, even if the designation of the crime by any possible stretch of the rule could be considered as descriptive matter, still it, having been pleaded, must be proved as laid. Bish. New Cr. Proc. § 488, subd. 2. So plainly marked is the variance that the facts themselves foreclose the need of discussion. But in illustration of the principles enunciated, and of their application to cases where the failure or omission has been much less conspicuous than that under review, may be instanced, generally, the cases of People v. Coon, 45 Cal. 672; People v. Cox, 40 Cal. 275; Moore v. State, 12 Ohio St. 387; State v. Crogan, 8 Iowa, 523; Chute v. State, 19 Minn. 271 (Gil. 230); while bearing specifically upon the question of perjury are those of State v. Bailey, 31 N. H. 521; State v. Tappan, 21

N. H. 56; Brown v. State, 47 Ala. 47; Com. v. Monohan, 9 Gray, 119; U. S. v. Bowman, 2 Wash. C. C. 328, Fed. Cas. No. 14,631.

It is unnecessary to discuss any of the other points presented by appellant. The Judgment is reversed.

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

(113 Cal. 1)

GIBSON ▼. STERLING FURNITURE CO. (S. F. 9.)1

(Supreme Court of California. May 23, 1896.) APPEAL-REVIEW-EVIDENCE-MASTER AND SERVANT-PERSONAL INJURIES.

1. A verdict based on conflicting testimony will not be disturbed, though the number of witnesses testifying in appellant's behalf on the issue in question are much greater in number.

2. Where, in an action by a servant, a child 11 years of age, against his master, for personal injuries alleged to have been caused by the negligence of defendant in ordering plaintiff to clean a dangerous machine while in motion, defendant claims that the machine was at rest when plaintiff was ordered to clean it, and that it was started by plaintiff in disobedience of orders, an instruction as to the effect of the negligence of a fellow servant of plaintiff is properly refused, as impertinent.

Department 1. Appeal from superior court, City and County of San Francisco; A. A. Sanderson, Judge.

Action by John T. Gibson, by guardian, etc., against the Sterling Furniture Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. J. & J. H. Moore and Smith & Murasky, for appellant. H. H. Davis and Dunne & McPike, for respondent.

VAN FLEET, J. The plaintiff, a lad of 11 years, while in the employment of the defendant, in its furniture factory, was set to the task of cleaning the rollers of a sandpapering machine, and while thus engaged, the machine being at the time in motion, one of his hands was caught by the sandpaper drum, which was revolving at a high rate of speed, and badly lacerated. torn, and otherwise injured to such an extent as to leave plaintiff permanently maimed. He brought this action to recover for the injury, alleging, in substance, negligence of defendant in putting him at a dangerous task, without knowledge or experience on his part of the dangers incident thereto, and without warning thereof by defendant, or instruction as to how to avoid such dangers. He recovered a verdict, and defendant appeals from the judgment entered thereon, and from an order denying a new trial.

It is very strenuously urged by defendant that the evidence is insufficient to sustain the verdict. But we find absolutely nothing in the record to support such claim. No motion was made for a nonsuit, nor is it now pretended that there was not evidence, on behalf of plaintiff, tending, in legal effect, to 1 Rehearing denied.

make out a case; but it is contended that "the testimony of defendant's ten witnesses overwhelms in toto that of plaintiff," and that the preponderance of defendant's evidence over that of plaintiff made the latter "legally incredible." Without reciting the evidence in detail, which would subserve no useful purpose, it is only necessary to say that there is nothing in the essential nature of the evidence as it appears in the record, with the manner and bearing of the witnesses lacking, to disclose any necessary preponderance in favor of defendant; nor is there anything inherently or otherwise so improbable in the character of the evidence on behalf of plaintiff as to render it legally incredible, or which tends to deny it the effect, which we think it clearly has, of creating a substantial conflict. It is true that defendant's witnesses greatly exceeded in number those of plaintiff, and there was a very sharp and decided conflict between the two as to the facts; but, however great the disparity, mere preponderance in number of witnesses, of itself, cannot of course control the finding of the jury. Much less can it affect our consideration in determining if the verdict finds support in the evidence. Notwithstanding the disparity in this instance, not only did the jury choose to give credence to the plaintiff's evidence, but the action of the judge in denying a new trial must, for the purposes of this review, be implicitly regarded as indicating a like view by the latter, since, had his judg ment been otherwise, it would have been his duty to grant a new trial. In such a case, under well-settled principles, we would not be justified in saying, even if we regarded the evidence as strongly preponderating in defendant's favor, that the verdict is not supported by the evidence.

It is claimed that there was error in the refusal of the trial judge to give certain instructions, requested by defendant, designed to submit to the jury the rule that a master is not liable when the injury is suffered through the negligence of a fellow servant. But there was no such issue or question in the case under the pleadings, nor, as we regard it, any evidence to which such principle was pertinent. The theory of plaintiff's case, as we have indicated, was that the injury resulted from the defendant's putting plaintiff at work about a dangerous machine, with which he was not familiar, while the same was in motion, and the failure of defendant to properly warn and instruct him as to the dangers involved in the task he was required to perform; while that of the defendant was that neither it nor any of its employés other than plaintiff himself was in any way negligent or responsible for the injury, but that, when plaintiff was set at work cleaning the machine, it had been wholly stopped, and was not in motion, and that there was no danger whatsoever attendant upon plaintiff's work while the machine remained in that condition, and that the accident and injury

occurred solely "from a freak of willful, unforeseen, and reckless disobedience on plaintiff's part in putting on the motion gearing and removing the safeguard to said machine." The fact that plaintiff was directed by defendant to perform the task in question was not denied; the only material issue being whether or not he was set at work while the machine was in motion, and so dangerous without knowledge on his part of such dangers, or proper warning by defendant to enable him to avoid them. This issue in no way involved the principle which it is sought to have submitted to the jury. If there was negligence in the particular involved in that issue, it was the negligence of the master, and for which he is responsible, notwithstanding the immediate instrumentality through which such negligence occurred was the act of a fellow employé of the plaintiff. Ingerman v. Moore, 90 Cal. 410, 27 Pac. 306. Under the pleadings, therefore, and evidence, the instructions in question were properly refused. Conlin v. Railroad Co., 36 Cal. 404. The refusal of the other requested instructions involves no error. So far as they were pertinent to the evidence, and were correct expositions of the law, they were sufficiently covered by the instructions given.

We discover no error in the rulings of the court on questions of evidence. Nor do we think the court abused its discretion in denying defendant's motion for a new trial. There is no such showing of accident or surprise as should be required to invoke the favorable consideration of a court and induce it to set aside a verdict. As to the ground of newlydiscovered evidence, the showing wholly fails to disclose a requisite degree of diligence, assuming that the evidence can be regarded as of a character likely to produce a different result upon another trial, which to our minds is not obvious. The judgment and order are affirmed.

to the complaint, which was overruled; and, upon failure to answer, judgment was rendered for plaintiff. Defendant Butler appeals. Reversed.

Rodgers & Paterson, for appellant. Wall J. Tuska, for respondent.

HENSHAW, J. The trial court overruled defendant's general demurrer to plaintiff's complaint. Defendant refusing to answer, judgment against him was entered. From this judgment he appeals.

The plaintiff, a creditor of the S. S. Construction Company, a corporation, sought to charge defendant, as a stockholder thereof, for his proportionate share of the debt. The complaint averred the amount of capital stock of the defendant corporation, and the number of shares into which it was divided. It likewise averred ownership in defendant of a certain specified number of shares of this stock during the period within which the liability was created. But it did no more than this. It did not allege, nor can it be determined from the complaint, what the total number of the subscribed shares actually was, nor what proportion the holding of this defendant bore to the total amount of subscribed stock. As the number of individual stockholders' shares is to the whole number of subscribed shares, so is his proportion of the debt to the total amount of the debt. Unless, therefore, these three known factors are pleaded, namely, the number of the stockholders' shares, the total of the subscribed shares, and the amount of the debt,-it is impossible from the complaint to determine what amount of liability is sought to be charged against a stockholder. This is so plain that it is conceded by respondent, but it insists that the admitted defect in the complaint is one which cannot be reached by general demurrer, but is subject to attack by special demurrer only. The precise question arose in Bidwell v. Babcock, 87 Cal. 29, 25 Pac. 752, where this court said that the averment of these elements is essential to the statement of a cause of action. The judgment is reversed, and the cause remanded, with directions to the trial court to sustain defendant's demurrer.

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

(112 Cal. 689)

In re BLYTHE'S ESTATE. (S. F. 185.) (Supreme Court of California. May 22, 1896.) COURTS-PROBATE JURISDICTION-CONCLUSIVENESS OF JUDGMENT AGAINST CLAIMANT.

By Code Civ. Proc. § 1664, the superior court is given jurisdiction of proceedings to ascertain and determine the heirship, ownership, and interest of all parties in and to the property of a decedent, and the interest of each respective claimant thereto; and where any claimant in such proceedings is adjudged to have no interest in an estate, and the judgment is affirmed on appeal, it constitutes an adjudication which concludes the claimant from any further

participation in matters connected with the estate, and from questioning any further action of the court therein.

Department 2. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Proceedings in the matter of the estate of Thomas H. Blythe, deceased. From an order denying the Blythe Company a new trial, it appeals. Affirmed.

Geo. W. Towle, Jr., for appellant. W. H. H. Hunt, for respondent.

HENSHAW, J. This is an appeal by the Blythe Company from the order denying it a new trial in the matter of the application of Florence Blythe Hinckley for a decree of partial distribution of the estate of Thomas H. Blythe, deceased. The said company was a party to the proceedings instituted under section 1664 of the Code of Civil Procedure, and appealed from the judgment and decree of the court rendered therein, and also from the order of the court denying it a new trial. Both of these appeals were here determined adversely to appellant's contention. Blythe v. Ayres, 102 Cal. 254, 36 Pac. 522.

The stress of appellant's argument in this case is an attack upon the former decisions of this court rendered in the matter of said estate, and it is here contended that this court, in those decisions, has given an unwarrantable construction and interpretation to section 1387 of the Civil Code, and has denied to the cases of In re Sanford's Estate, 4 Cal. 12, and Pina v. Peck, 31 Cal. 359, the weight which is due them as authority. The question thus presented was fully and elaborately argued before the court upon the former Blythe appeals, and the conclusions reached and expressed in Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, and 102 Cal. 262, 36 Pac. 522, were arrived at only after most painstaking and careful consideration by the court, and were concurred in by all the justices then qualified to act. If, after such consideration and determination, we were inclined to consider the question anew, there is an insurmountable objection to doing so in this appeal. The Blythe Company, as has been said, was one of the parties to the original proceeding, wherein, by the finding and decree of the court, it was adjudged that the predecessors of appellant company were not of kin to Blythe. The company having attacked the soundness of this finding upon direct appeal, and the judgment and decree made against it by the trial court having been here affirmed, it would seem that in all proceedings subsequent thereto the Blythe Company would stand as a stranger in interest to the estate of the deceased, and would not, therefore, be entitled to oppose or contest any proceedings had therein. But to this appellant answers that the duty and power of the court, under section 1664 of the Code of Civil Procedure, were limited to adjudicating kinship to the

deceased, where such kinship, if it existed, would make the claimant an heir, and that the court, therefore, had no right or power to decide and declare that other claimants were not of kin, or that other claimants were of kin, but not of such kin as to entitle them to succession. But this is entirely too narrow a construction to be put upon the section. The section declares that the court, after indicated proceedings, acquires jurisdiction to ascertain and determine the heirship, ownership, and interest of all parties in and to the property of the deceased, and that, upon the trial of the issues, the court shall determine the heirship to said deceased, the ownership of his estate, and the interest of each respec tive claimant thereto and therein. By this section a claimant is not entitled to be heard at all unless he claims to be of such kin as would entitle him to succession. The court acquires jurisdiction to determine, and it is made its duty to determine, not alone the heirship to said deceased, but the interest of each respective claimant to his estate. That this may and should properly be done by a decree establishing the degrees of kinship or relation in which the separate claimants stood to the deceased does not admit of debate; and, where a claimant is found to bear no kinship whatsoever to the deceased, a finding and judgment to that effect is properly within the jurisdiction of the court, and within the issues to be determined. The section declares that the final determination of the court shall be final and conclusive in the distribution of said estate, and in regard to the title to all the property of the estate. To the proceedings which terminated in the original decree, this plaintiff was a party. It endeavored unsuccessfully, upon direct appeal, to overcome and destroy that judgment. It failed in that attempt, and, so far as further proceedings in this estate are concerned, it is concluded by it. The order appealed from is affirmed.

1. In an action to recover for fruit sold under guaranty, where the quantity shipped to defendant was in issue, and it appeared that defendant had packed the fruit in what were called "40-pound boxes," the testimony of witnesses engaged in packing fruit was properly admitted to show that such boxes, if well packed, would hold more than 40 pounds.

2. It was n ́t prejudicial error for the court, in charging the jury, to refer to the testimony showing the capacity of the boxes to be more than 40 pounds in more positive terms than to the testimony showing the capacity to be less.

3. Plaintiff having delivered the fruit in bulk, and having had nothing to do with the packing, it was not error to refuse to charge the jury that, if the fruit was received and sold