from liability as assignee to any creditor of the insolvent; thus, by the very form of the discharge, leaving him with all his powers as trustee in case other property than that disposed of by his previous accounts should be discovered. Whether or not it was necessary to set aside the former order of discharge and settlement of account, in order to bring the present action, it is not necessary to decide, though this action of the court, even if not strictly necessary, was nevertheless proper, as it was a direct recognition of the continuing authority of the assignee. We think section 473, Code Civil Proc., has no application to such an order as that entered, discharging the assignee from liability to creditors, for it is manifest that if the assignee in fact knew of other property which should have been appropriated to the payment of the creditors, and had omitted to apply it, the discharge in question could not have relieved him from responsibility; and, that being true, the discharge can only apply to matters appearing in his account, to which they have had an opportunity of excepting. It is further contended by respondents that there is no allegation in the complaint that an assignment of the insolvent's property was made to plaintiff, and that the omission of that averment is fatal. The complaint averred "that on the 26th day of September, 1887, an order was duly made by and in the said superior court, duly appointing the said plaintiff assignee of the said insolvent debtor, C. A. Macomber; that on the 27th day of September, 1887, the said plaintiff, as said assignee, filed his bond as required by law, and on the same day duly qualified and entered upon the discharge of his duties as such assignee; that on May 8, 1888, the said assignee filed in said court his final account, and the same was settled and allowed." We think these allegations sufficient under a general demurrer. The special demurrer of defendants does not go to this point. The statute makes it the duty of the clerk of the court to convey to the assignee all the estate of the debtor as soon as the assignee has given bond and qualified. The clerk is an officer of the court, acting under its direction, and the presumption is that every officer discharges every duty specifically enjoined upon him. Code Civil Proc. 1963, subd. 15. If the assignment were required by the statute to be made by the insolvent, a much more serious question would arise; but here the assignment is based upon the previous proceedings of the court, and becomes a step in the cause, and essentially a part of the regular and orderly proceedings . therein, and therefore is presumed to have been taken. If there was in fact no assignment, it may be pleaded as matter of defense. We think the complaint, upon this point, is sufficient, at least in the absence of a special demurrer. Respondents further contend that "Ma This comber alone, not his assignee, can maintain any action to recover the claims counted upon." The constitution, art. 4, § 26, provides: "All contracts for the sale of shares of the capital stock of any corporation or association on margin, or to be delivered at a future day, shall be void, and any money paid on such contracts may be recovered by the party paying it by suit in any court of competent jurisdiction." provision, it is said, creates a new right, and provides a remedy, and that such remedy is exclusive, and limited to Macomber personally. We think this contention cannot be sustained. The remedy given is a recovery of money paid on a void contract. There is no distinction between money paid under a contract declared void by the constitution, and that paid under any other void contract. In all such cases the party who has paid the money remains the equitable owner of it, though he could not, in many cases, maintain an action for its recovery. But here the constitution, which declares the contract void, expressly authorizes its recovery. It was, prior to Macomber's insolvency, a part of his estate; and in case of his death the right of action would have survived, unless the right of action is limited to him personally, for a right of action which survives is, under the general rule, assignable. This question was considered in the case of Meech v. Stoner, 19 N. Y. 26. There, by the statute, all wagers, bets, or stakes upon any gaming are declared to be unlawful, and all contracts for or on account of any money or property or thing in action so wagered are void; and it is provided that the person who shall, by playing at any time, or betting on the sides or hands of those who play, lose at any time or sitting the sum of twenty-five dollars or upwards, and shall pay or deliver the same, or any part thereof, may, within three calendar months after such payment or delivery, sue for and recover the money or value of the thing so lost, paid, or delivered, from the winner thereof. It was claimed on the part of the defendant that the loser at play has, by the statute, a merely personal privilege to sue and recover back his losses, but has no interest in the money or thing sued for, which is capable of assignment, so as to give the right of action to any one else. In that case it was held that, if the statute had not given an action to recover money lost at play, a suit for such purpose could not be maintained; that this exemption, however, would not result from any title in the defendant to the money or thing won and received by him, but because the courts withheld their remedial process from each of the offending parties, thus leaving the parties where the law finds them, and the defendant prevails, not upon his own merits or title, but because the plaintiff is deemed unworthy to be heard in the case. But the court further said: "That difficulty being removed by the legislature, I see no reason why the right to demand and recover money staked and lost in gaming is not as much a part of a man's estate as any other right in action which he can possess; and, if this be so, why is not such a demand, like any other, capable of being transferred by act of the party or of the law. But the statute, it is said, gives the action to the 'person,' and not to his assigns or representatives. Upon the precise terms of the statute, this is so, yet it is difficult to suggest any reason why the right to be asserted in such an action would not devolve upon the administrator, and thus become a fund for the payment of debts, or for distribution amongst the next of kin, or why an assignee in bankruptcy or insolvency would not succeed to the claim, and be able to enforce it for the benefit of creditors. Assignability of things in action is now the rule; nonassignability, the exception; and this exception is confined to wrongs done to the person, the reputation, or the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage." The court, in this case, sustained the views above quoted by further argument and the citation of a number of cases, both English and American, and in these views we concur. We think the court erred in sustaining the demurrer to the complaint, and that the judgment should be reversed, with leave to the defendants to answer. FAIRBANKS v. LAMPKIN et al. (No. 15,130.) (Supreme Court of California. Aug. 31, 1893.) SUPREME COURT-JURISDICTIONAL AMOUNT. Under Const. art. 6, § 4, granting the supreme court appellate jurisdiction in cases at law only where the demand, exclusive of interest, amounts to $300, that court cannot review an order, made after final judgment, taxing a cost bill which is less than that amount. Department 2. Appeal from superior court, Mendocino county; R. McGarvey, Judge. Action by one Fairbanks against Lampkin and others. From an order taxing costs after final judgment, plaintiff appeals. Appeal dismissed. J. A. Cooper and J. M. Mannon, for appellant. T. L. Carothers and J. H. Seawell, for respondents. MCFARLAND, J. This is an appeal from an order made after final judgment taxing a cost bill, the whole amount of the bill being only $171.20. We do not think that this court has jurisdiction of the appeal, for the reason that the amor involved is less than $300. We strongly intimated this conclusion in Sellick v. De Carlow, 95 Cal. 644, 30 Pac. Rep. 795; and further consideration satisfies us that the intimations given in the opinion in that case should be taken as a correct Secstatement of the law on the subject. tion 4, art. 6, of the state constitution, provides that "the supreme court shall have appellate jurisdiction in all cases * at law * * in which the demand, exclusive of interest * amounts to three hundred dollars;" and no doubt the rule has been too firmly settled to be now disturbed that, on an appeal from a final judgment in an action to recover money, jurisdiction depends upon the "demand" made by plaintiff, -upon the ad damnum clause of the complaint. But that rule should not be extended further than previous decisions necessarily carry it. An order made after final judgment is a separate, independent proceeding; and where it involves money only, and the amount involved is less than $300, this court has no jurisdiction, under the constitution, of an appeal from such order. Such an appeal has been sustained in one or two instances where the point was not brought to the attention of the court, but in no case has the point been raised and determined in favor of the jurisdiction. In Lumber Co. v. Neal, 94 Cal. 192, 29 Pac. Rep. 622, the only question involved was whether a certain order should be considered as a part of the final judgment, or as an order made after final judgment, but there was no question raised or decided which called for a consideration of the amount of money involved in the order; and the point under discussion was not raised in any of the other cases decided by this court, to which our attention has been called. On the other hand, in Langan v. Langan, 83 Cal. 618, 23 Pac. Rep. 1084, which was an independent appeal from an order allowing an attorney's fee in a divorce suit, this court, sitting in bank, held, without any dissent, that "the appeal from the order allowing $150 counsel fee must be dismissed, because the amount in dispute is too small to give this court jurisdiction." And in Oullahan v. Morrissey, 73 Cal. 297, 14 Pac. Rep. 864, the court, sitting also in bank, delivered the following opinion: "The Court. The plaintiff, having consented to the entry of the judgment against himself, cannot appeal from it, or, if he can, can only be heard as to that portion to which he did not consent. That, in this case, is, at the most, the demand for costs, which, being less than three hundred dollars, does not give this court jurisdiction." If the two cases last above cited are not conclusive against the jurisdiction in the case at bar, they certainly point clearly in that direction; and, considering all the former decisions together, it can be confidently said, at least, that the question has not been definitely determined the other way. 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. BLUMBERG ▾. 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 de fendant 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. 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 re covery 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 The 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 de murrer. BOWIE v. GRAND LODGE OF LEGION 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 beneft 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 installments 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 de fendant 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. 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 de fendant 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 be 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 provided 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 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. 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 |