cents." And the county government act provides: "The salaries and fees provided in this act shall be in full compensation for all services of every kind and description rendered by the officers therein named, • provided further, that the board of supervisors shall allow to the sheriff his necessary expenses for pursuing criminals or transacting any criminal business without the boundaries of his county." St. 1887, p. 207, § 211. In support of the first cause of action it was shown that McFarlane and McKinney were in the county jail, and escaped therefrom during the night of November 25 or 26, 1889. On the morning of the 27th plaintiff started out hunting for them, having warrants for their arrest, and continued such hunting until December 14th. While so engaged he traveled 940 miles, most of which traveling was outside of his county. After December 14th plaintiff discontinued his hunting until January 9, 1890, when he started out again in quest of McKinney, and arrested him in Rawlins, Wyo. In going and returning on this last trip he traveled 670 miles within this state. Subsequently, in December, 1890, plaintiff started out again after McFarlane, and found and arrested him in the town of San Marcial in New Mexico. For this last service he afterwards presented another claim against the county, and it was allowed and paid in full. The 949 miles and 670 miles traveled as before stated, the first number, however, being duplicated, because the hunting was for two alleged criminals at the same time, constitute the plaintiff's claim as set forth in his "Exhibit A;" and the only question is, was he entitled to a larger allowance on it than was made by the beard of supervisors? Plaintiff testified: "During the time I did this traveling, hunting for McKinney from and including November 27, 1889, to December 14, 1889, I did not arrest McKinney or have him in my custody. These places where I traveled in hunting were several hundred miles from where I finally arrested McKinney. Between the 14th day of December, 1889, and January 9, 1890, I did not do any traveling in hunting for McKinney. It was nearly a month after I did this traveling in hunting for McKinney before I arrested him; nearly a month before I started out again to hunt him.

I arrested McFarlane some time in December, 1890. I arrested him several hundred miles from the place where I did the hunting for him as set forth in my complaint in 'Exhibit A.' * * I arrested both McFarlane and McKinney in opposite directions from the places where I traveled in hunting for them as set forth in my claim marked 'Exhibit A; not exactly opposite, but in a different direction. The arrest of McFarlane by me was made nearly a year after the time I traveled hunting for him, as set out in my claim marked 'Exhibit A.'" It will be observed that the plaintiff was allowed by the supervisors all that he was entitled to

claim under the statute for the 670 miles traveled in making the arrest of McKinney, and also all that he claimed for making the arrest of McFarlane, and that only his clai for the miles traveled which did not result in any arrest was disallowed. In Broughton v. County of Santa Barbara, 65 Cal. 237, 3 Pac. Rep. 877, the sheriff of that county sought to recover, under section 9 of the statute of 1869-70, above quoted, a certain sum of money as "mileage" for traveling to serve a warrant of arrest on one chargel with felony; and it was held that the stat ute did not allow mileage for traveling in different directions in looking for one charged with a crime who is not arrested. That case we consider directly in point, and decisive of the first cause of action in this. It is true that McFarlane and McKinney were subsequently found and arrested, but that fact, under the circumstances shown, does not materially distinguish this case from that. It follows that the plaintiff was not entitled to recover for the miles traveled in his unsuccessful hunt, though possibly he might have rightly claimed pay for his necessary expenses. That question, however, does not arise here, as no such claim was presented for allowance.

In support of the second cause of action it was shown that between November 10, 1889, and January 5, 1890, a deputy of the plaintiff went several times to Goshen and Tulare, and arrested at the former place 18 and at the latter 49 different persons. The arrests were all made without any warrants, and it was admitted “that the plaintiff went to Goshen without any knowledge of any crime having been committed by any of the defendants in any of the said cases, and that while at Goshen he arrested each of said defendants, and took each of said de fendants to Visalia, where he swore to a complaint before the justice against each of said defendants, upon which a warrant was issued in each of said cases, which warrant was thereupon at said Visalia served by plaintiff upon each of said defendants." And there was a like admission as to the arrests made at Tulare. It was further admitted that each of the defendants named in the admissions was charged with a misdemeanor. The deputy testified: "Some of these parties were arrested for vagrancy, some for malicious mischief, and I think there were two or three for disturbing the peace. ** At the time I arrested any of the defendants at Goshen I did not have any knowledge or notice that any particular defendant had committed any offense before I started from Visalia. In each and all of these cases the crime was committed at Goshen, after I arrived there, and was done in my presence while there. I also state that each and all the defendants whom I arrested at Tulare were arrested by me for a crime committed in my presence at Tulare. I had no notice or knowledge of any of these de

fendants committing a crime before I started to Tulare." The distance from Visalia to Goshen was eight miles, and to Tulare twelve miles. In making up his claim, as shown by "Exhibit B," plaintiff charged, and now insists that he is entitled to recover, mileage at the rate of 30 cents per mile from Visalia to the place of arrest, for each of the 18 and 49 persons arrested; and whether he was entitled to such mileage or not is the only question which need be considered, the allowance made by the board of supervisors being sufficient to cover all the balance of his claim. As before stated, the plaintiff was entitled to such fees only as were allowed by law. No statute or rule of law is cited authorizing such a charge as that in question, and we know of none. It seems clear, therefore, that this claim for mileage was properly disallowed by the supervisors, and improperly allowed by the court below. It follows that the judgment and order must be reversed, and the cause remanded. So ordered.

In re PINGREE'S ESTATE. (No. 18,186.) (Supreme Court of California. Oct. 13, 1893.) PUBLIC ADMINISTRATOR-RIGHT TO LETTERS.

es

A public administrator does not, by filing his petition for administration_on_an tate before the ending of his term of office, become entitled to administer thereon as against the incumbent of the office at the time of the grant of administration.

Commissioners' decision. Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge.

In the matter of the estate of W. C. Pingree, deceased. From an order refusing letters of administration to J. Phelps, and granting them to J. D. Bentley, the former appeals. Affirmed.

L. J. Maddux, for appellant. Eastin & Griffin, for respondent.

BELCHER, C. On the 30th day of December, 1892, W. C. Pingree died intestate in the county of Stanislaus, in this state. He was a resident of the county at the time of his death, and left an estate therein, consisting of real and personal property, of the value of more than $15,000. He had no relatives or heirs at law residing in this state. On December 31st, the next day after the death of Pingree, J. Phelps, then the public administrator of the county, filed in the superior court thereof his petition in proper form, asking that letters of adminstration on the estate of the deceased be issued to him. On January 2, 1893, J. D. Bentley became the public administrator of the county, and on the next day (January 3d) he, as such officer, filed in the superior court his petition in proper form, asking that letters of administration on the estate of the said deceased be issued to him. Due notices of

the petitions were given, and they were both set for hearing at the same time, on January 14, 1893. At the time set for the hearing, Phelps was sworn as a witness, and among other things testified: "I filed my petition for letters of administration on the 31st day of December, 1892, before I had ever seen the deceased, before his burial, and before I had held the inquest on his remains. I had not at that time ever seen any of his property or taken charge of it. I had made no search for his will, except to talk with some one at Knight's Ferry through the telephone. I did not then know anything about his property. I have not taken charge of the property under an order of court, and have not had charge of it since the special letters of administration were issued to J. D. Bentley. I wrote to Mr. Means to take charge of the property, but I don't know whether he did or not. I have never been in charge of it personally. I have not been public administrator since the 3d day of January, 1893, and am not now." Other witnesses were also sworn and examined in behalf of both petitioners, and at the conclusion of the evidence the court made an order denying the petition of Phelps, and granting that of Bentley.. From this order Phelps appeals, and his contention is that inasmuch as Pingree died, and he filed his pe tition, during his term of office, he became interested in the estate to the extent of his commissions, and was therefore entitled to administer upon it and recover the commissions, notwithstanding his term of office expired before his petition was heard; and, in support of this position, Rogers v. Hoberlein, 11 Cal. 120, and In re Aveline's Estate, 53 Cal. 260, are cited. The Code names 10 classes of persons who may be appointed to administer on estates, and among them are public administrators. Section 1365, Code Civil Proc. It provides that petitions for letters of administration must be in writing, etc., (section 1371,) and that any person interested may contest the petition, and may assert his own rights to the administration, and pray that letters be issued to himself, (section 1374;) and also that on the hearing the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto, (section 1375.) A public administrator, like any other person, can administer on an estate only when there has been made to him a special judicial grant of administration thereon. He does not, by virtue of his office, acquire the right to administer upon any particular estate. Beckett v. Selover, 7 Cal. 216; In re Hamilton's Estate, 34 Cal. 464. The cases cited by appellant are only to the effect that where letters of administration have been granted to a public administrator he may continue his administration of the estate after the expiration of his term of office, and until his authority is set aside or revoked by another

appointment. Those cases are not in point here. The appellant did not, by virtue of his office or by filing his petition, acquire any interest in the estate of Pingree, or in the commissions to be earned by administering upon it; and when his term of office expired he ceased to be one of the persons specially named to whom letters might be granted. It was his status at the time of the grant of administration, and not at the time of filing his petition, that determined his competency. The court did not, therefore, err in ordering that letters of administration on the estate be issued to Bentley as "the party best entitled thereto." The order appealed from should be affirmed.

(Supreme Court of California. Oct. 13, 1893.) QUO WARRANTO RESTRAINING COLLECTION OF TURNPIKE TOLLS-PLEADING EVIDENCE. 1. In an action in the nature of a quo warranto, brought by the attorney general, to have a certain road declared a highway, and to enjoin defendant from collecting tolls thereon, defendant's claim and exercise of the franchise being admitted, the burden is on defendant to show by what warrant or authority such claim is made.

2. An averment in the complaint in such action, that "for more than six months last past defendant has had no franchise or right to demand or take toll," is not an admission of the existence of such franchise or right previous to that period.

Commissioners' decision. Department 2. Appeal from superior court, Placer county; W. H. Grant, Judge.

Information in the nature of a quo warranto against the Volcano Canyon Toll-Road Company. From an order denying a new trial, defendant appeals. Affirmed.

Clitus Barber and John M. Fulweiler, for appellant. F. P. Tuttle and A. K. Robinson, for the People.

TEMPLE, C. This action was brought to have a certain road in Placer county declared a public highway, and to enjoin defendant from collecting tolls thereon. Plaintiff had judgment, and defendant appeals from an order denying a new trial. It is averred in the complaint that defendant claims and is exercising the franchise of collecting tolls for the privilege of traveling upon and passing over the road, and is maintaining tollgates, thereby obstructing the road, and preventing its use and enjoyment by the public, except upon condition of paying toll to the defendant; further, "that, for more than six months last past. defendant has had no franchise or right to demand or take toll from

passengers or travelers upon said road for the privilege of passing over or along the same with their animals, or at all, or to establish or maintain any tollgate or other gate or obstruction thereon," etc. The answer admits, by not denying, that the defendant claims and is exercising the disputed franchise, but denies that it is doing so without right, and avers that the board of supervisors of the county granted defendant a franchise to collect tolls upon the road, which has not expired.

This being an information in the nature of a quo warranto brought by the attorney general, and the fact that the defendant claimed and was exercising the disputed franchise being admitted, the burden was on the defendant to show by what warrant or authority it claimed and exercised the franchise. There was no attempt to show any warrant or authority whatever. The judg ment, therefore, was proper.

The statement shows that but one witness was sworn, and that was one Bunker, who testified for the defendant. He testified that the road belonged to his wife, who took it as legatee under the will of witness' brother, and since they had owned it they had built a bridge, and repaired the road. That toll had always been charged for traveling the road. He also said they had never claimed to be incorporated, and that the name used as defendant was simply the name of the road, and was convenient for that purpose. Yet we are referred in the brief of appellant to a case in which this same name figured as a plaintiff in a case to compel the board of supervisors to fix the rate of tolls, which case was appealed to this court. Volcano Canyon Road Co. v. Board of Sup'rs of Placer Co., 88 Cal. 634, 26 Pac. Rep. 513. In that case it was said that the board, on that application, could not inquire whether the plaintiff was legally incorporated, or owned the road. It seems a very startling proposition that a person taking a name, apparently of a corporate body, and in his complaint asserting it to be such, can take possession of a public highway which was laid out and built, and is being controlled, by this very board, and compel that body to fix rates of toll, and allow the applicant to appropriate the highway, without the right to question the corporate character, although no such pretended body ever existed, or claimed to exist, save in the petition to have the rates fixed. Weaverville & M. W. R. Co. v. Board of Sup'rs of Trinity Co., 64 Cal. 69, is relied upon as authority for this proposition. But in that case it was proven and found that the plaintiff was an acting corporation, and it was simply held that in that proceeding this was sufficient and conclusive. In this case there are no persons acting under the name. There are no directors or officers, and no acts in corporate form.

As to the other proposition, it has been held in numerous cases that the board, when

such application is made, may and should inquire as to the right of the applicant to a franchise; and it has been held that, be cause the board on such an application has determined this right, an individual who is using the road cannot question it. Turnpike Road Co. v. Campbell, 44 Cal. 89. In Blood v. Woods, 95 Cal. 78, 30 Pac. Rep. 129, it was said that all toll roads are public roads, and to some extent under the control of the board of supervisors, and that the roads upon which they may be required to fix rates of toll are those laid out and built as toll roads under the provisions of the Code. This is not a proceeding for fixing rates, but an inquiry on behalf of the state as to the authority of the defendant, if there be one, to collect tolls. No such right has been shown. It seems to be claimed that, in the allegation quoted from the complaint, it is admitted that prior to six months immediately preceding the action the defendant had a franchise. But this is not so. It is a very cautious statement, but is entirely consistent with the proposition that defendant never had a franchise at any time. The pleader might have contented himself with merely stating the fact that the defendant was claiming and exercising a franchise, and averred that it was without right, or he might have averred the existence of a franchise at some time, and shown that it had terminated, or been forfeited. In the last case the facts showing that it had ended or had been forfeited should have been stated. The complaint here, though containing some unnecessary statements, is quite sufficient for a complaint of the first character, but is insufficient for a complaint in the other class of cases. The corporate character of the defendant is admitted in the pleadings; still the evidence shows, beyond doubt, that there is no defendant. It is nominis umbra, merely. I advise that the order be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

WARNER v. WARNER et al. (No. 19,080.) (Supreme Court of California. Oct. 10, 1893.) CHANGING PLACE OF TRIAL-ACTION FOR DIVORCE.

1. Civil Code, § 128, as amended by Act March 10, 1891, providing that a divorce must not be granted unless plaintiff has been a resident of the county "in which the action is brought three months next preceding the commencement of the action," does not prevent a change of the place of trial of an action for divorce to the county in which defendant resides, since Code Civil Proc. § 395, provides that "in all other cases (excepting actions relating to real property, for the recovery of penalties, and those against municipal corporations and public officers, etc.) the action must be tried in the county in which the defendants.

or some of them, reside at the commencement of the action." De Haven, J., dissenting.

2. Code Civil Proc. § 396, provides that if the county in which the action is commenced is not the proper county for the trial thereof the action may, notwithstanding, be tried therein, unless defendant demands in writing that trial be had in the proper county. Held, that where the bill of exceptions recites that a "notice in due form" of the motion by defendant for a change in the place of trial was filed, and no objection was raised to the absence of a demand in writing, it will be presumed on appeal that the notice included a proper demand. Beatty, C. J., dissenting.

In bank. Appeal from superior court, San Bernardino county; John L. Campbell, Judge Action by Warner against Warner and another. From an order changing the place of trial, plaintiff appeals. Affirmed.

Rolfe & Freeman, for appellant. Monroe & Lee, for respondents.

Wells,

The

PATERSON, J. This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. prayer is for a divorce, a cancellation of the conveyance, and a division of the property fraudulently conveyed. The action was brought in the county of San Bernardino, the complaint alleging that the plaintiff had resided in the state for more than one year, and in the county of San Bernardino for more than three months, next preceding the commencement of the action. The court, on motion of the defendants, changed the place of trial from San Bernardino to Los Angeles county, upon the sole ground that the defendants were residents of the latter county. Appellant contends that under section 128 of the Civil Code an action for divorce must be brought in the county of the plaintiff's residence, and cannot be removed therefrom except on account of the convenience of witnesses, or where it is made to appear that an impartial trial cannot be had, or that the judge of the county is disqualified from acting. The section re ferred to, as originally incorporated into the Codes, provided that "a divorce must not be granted unless the plaintiff has been a resident of the state for six months next preceding the commencement of the action." As amended by the act of March 10, 1891, it now reads that "a divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action." It is said it would lead to an absurdity to hold that a husband could compel his wife to bring an action in a county other than the one in which he lived, in the county where she resides,

and afterwards, on his own motion, have the cause removed to the county of his residence; but in making this new provision the legislature was looking out for the interests of the public, as well as the interests of the parties. Prior to the passage of this amendment, reproach had been brought upon the administration of our divorce laws by the frequency of proceedings commenced by complainants in counties where neither of the parties resided, the purpose being generally to avoid notoriety in the community where the plaintiff was known, and in some instances to obtain a decree by collusion, or to vex the defendant, or make it impossible or inconvenient for him or her to present a defense. It was the purpose of the amendment to correct this abuse. The state has an interest in the result of such cases. The public welfare demands that the bonds of matrimony should not be lightly set aside, and there is less probability of successful collusion or unfair advantage where the parties have both resided and are known, than there is in a county where neither has resided, and which the plaintiff may select for the purpose solely of procuring a divorce. is true, before the amendment, a defendant had the right to have the cause transferred to his or her place of residence for trial, and to this extent the defendant's rights were protected; but the amendment tends to discourage the practice referred to, saves the defendant in a great many instances from the necessity and expense of moving for a change of the place of trial, and renders it less probable that the parties will allege or admit grounds of divorce which their friends and neighbors know to be false. Thus are the interests of not only the defendant, but of the public, in a measure protected.

It

Section 128 must be read in connection with sections 395 and 397, Code Civil Proc. The former is a limitation as to the place for the commencement of actions of divorce; the latter provide for the place of trial. The absurdity suggested is no greater than that which may arise under section 5, art. 6, of the constitution. That section provides that "all actions for the recovery of the possession of, quieting title to, or for the enforcement of liens upon, real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions is situated." The plaintiff may be morally certain that the action would have to be tried in another county, either because of the convenience of the witnesses or disqualification of the judge, and yet the action must be commenced in the county where the real estate is situated. It has been held here that there is no inconsistency between this section and the provisions of the Code relating to the place of trial. Hancock v. Burton, 61 Cal. 70. We do not look to the Civil Code for

methods of procedure. The legislature has for the reasons suggested, provided that no divorce shall be granted unless the plaintiff has resided in the county where the action is commenced for three months, but we look to the Code of Civil Procedure to determine all questions relating to the place of trial.

The inconvenience and injustice suggested by appellant is more fancied than real. The cases in which the plaintiff will be put to inconvenience must necessarily be rare. Furthermore, when the question of inconvenience is considered, it will be found not entirely one-sided. A party desiring to secure a divorce may under the construction claimed by appellant, by establishing a residence in a distant county, put the defendant to the trouble and expense of having the case tried away from the place of his residence, unless he can show inconvenience of witnesses or disqualification of the judge. But all such speculation has nothing to do with the matter. It is the duty of the court to give effect to the law as it finds it, and not be led away from the rules of construction by considerations of inconvenience. It is sufficient for us to know that effect can be given to both provisions by the construction which we give them, while the construction contended for would in effect nullify the provisions of section 395, Code Civil Proc., so far as actions for divorce are concerned.

It is further contended by the appellants that the action, being one in part to set aside a fraudulent sale and conveyance of land, necessarily involves the determination of a right or interest in real property, and there fore comes within the provision of section 392, Code Civil Proc. That section provides that an action "for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest," must be tried in the county in which the subject of the ac tion is situated, subject to the power of the court to change the place of trial. The object of the action, however, was not simply to procure the cancellation of the deed and reconveyance of the property. Another and probably much greater object was to secure a dissolution of the bonds of matrimony, and, so far as this last matter was the subject of the action, the proper county for the trial thereof was the county of the defendant's residence. It has been held here that, if real and personal actions are joined in the same complaint, the case falls within section 395, Code Civil Proc., and must be tried in the county of the defendant's residence. Smith v. Smith, 88 Cal. 572, 26 Pac. Rep. 356; Ah Fong v. Sternes, 79 Cal. 33, 21 Pac. Rep. 381; Le Breton v. Superior Court, 66 Cal. 30, 4 Pac. Rep. 777. The defendant F. R. Warner might perhaps have insisted upon the action being retained in the county of San Bernardino for trial, but, if any such right existed, he waived it by joining the other defendant in the application for s