was not, like this, an action on the case against the sheriff for damages, but was a summary proceeding by motion in an action between other parties to enforce the penalties prescribed by section 9 of the act of April 29, 1851, (St. 1851, p. 191;) and all the court was called upon to decide, and all it did decide, was that in that summary proceeding the return of the sheriff (a return of nulla bona) was conclusive in his favor; or, in other words, that the court could not try, upon affidavits, in a collateral proceeding in an action between other parties, issues which were the proper subject of an action against the sheriff, in which he could demand, if he chose, a trial by jury. If this is not made plain by the opinion itself, it certainly is made plain by reference to the authorities cited by counsel, and referred to by the text writers named in the opinion of the court. These decisions-and no doubt many more could be found to the same effect -certainly do establish the doctrine that, as against a collateral attack by motion in the action in which the execution issues, the return of the sheriff of nulla bona is conclusive in his favor; and this is the common-law rule, which was held to have been unaltered and unaffected by the statute above referred to. But the same decisions which enforce this rule expressly concede that the party injured by the neglect or misconduct of the sheriff has his remedy by action, and so it was expressly said in Egery v. Buchanan that the remedy of the plaintiffs was by action for a false return. The language of the opinion immediately following this statement, to the effect that a sheriff's return is not traversable, etc., was used with reference to the proceeding then under review, and not with reference to an action against the sheriff. If the court had meant to say that, in an action for a false return, the return itself is 'conclusive in favor of the sheriff, the remark would not only have been obiter; it would have been absurd. But it seems to us perfectly apparent that the court neither meant to say nor did say anything of the kind. On the contrary, it stated in plain terms that the remedy of plaintiffs was by an action for a false return.

What, then, is an action for a false return? "False return" was simply the specific name (probably derived from the forms of the original writ) for one of the numerous class of actions on the case. It was not an action in rem, for the purpose of cancelling or setting aside the return in order to pave the way for another action for damages, but was itself an action for damages, founded upon the official misconduct of the sheriff; and therefore all that the court meant, in saying that the remedy of the plaintiffs was by an action for a false return, was that they must proceed by action, not necessarily in the form of the commonlaw action, but, as our system of pleading and practice enjoins, by filing a complaint

alleging the facts material to the right of recovery. And such is precisely the course which this plaintiff has pursued. He has proceeded regularly by action, and his conplaint, as it appears to us, contains every allegation necessary to show his right to re cover the statutory damages for selling land without the legal notice. Code Civil Prue §§ 692, 693. There was no demurrer to his complaint, but an answer taking issue upon the fact of notice; and this issue was tried in the superior court as if it was properly raised, all plaintiff's evidence tending to prove want of notice being received witho objection. If the complaint is in any re spect deficient in substance, the objection should at least have been taken at the trial before it was too late to amend, and, not having been so taken, it ought not now to prevent the granting of a new trial, if the issues actually tried have been found contrary to the evidence. But we do not see that the complaint is in any respect def cient. The only objection suggested by the argument of counsel is that it should, like the declaration in the common-law action for a false return of nulla bona, have al leged the return, and its falsity. But the reasons for putting in those allegations under the common-law practice have no existence under our system, which provides for but one form of action, in which no facts need be alleged except those which must be proved. It was not the return to the writ of fieri facias by which the execution cred itor was damaged, but the failure to make the money which the sheriff might have made by properly executing it, and the alle gations of the return, and its falsity, were only necessary to show that the plaintiff was proceeding in proper form, for there was one form of procedure by motion, rule, or action where the writ had not been returned, and another form of procedure when it had been returned; and when the return had been made, and was true. the proper procedure was by motion, or by action of debt founded on the return. or in assumpsit for money had and re ceived. So that it was necessary to allege the falsity of the return, when such was the case, in order to show that plaintiff had commenced the proper action, and to avoid a variance. See Tidd's Practice and Chitty's Pleadings, passim. But in this case there was no such necessity. The plaintiff was damaged, and his cause of action under the statute complete, as soon as the defendant delivered a certificate of purchase to the purchaser at the execution sale, if in fact the sale was without notice, for the title of the purchaser does not depend on the sheriff's return, and in the absence of such return the debtor is obliged either to redeem his land, or run the risk of losing it by proof aliunde that the sale was valid.

If these views are well founded, counsel will see that a more careful study of his au

thorities would have made it plain to him, as it seems to us, that we have not, on this point, made a wide, or any, “departure from what has been deemed settled rules of law."

As to the other proposition upon which counsel bases his petition for a rehearing, viz. that we have gone contrary to the settled practice of the court, in reversing a finding of fact as to which the evidence is conflicting, we have only to remark that the rule he invokes is not that a finding will be sustained whenever there is any evidence, however slight, tending to prove the fact found, but is more correctly stated as follows: A finding, though against the apparent weight of evidence, will not be disturbed if there is substantial conflict of evidence as to the fact found. In this case we think the conflict is not substantial. Counsel seem to think that because a sheriff's return is, in some cases, conclusive, it is therefore to be regarded as of great weight in the cases in which it is merely prima facie sufficient to establish the facts stated. But the considerations of policy and convenience upon which the rule is founded, that, as between the parties to an action and their privies, the return of a sheriff is conclusive, have no application in a suit against him for neglect of official duty. In such cases his return, although prima facie evidence in his favor, is essentially weak evidence; and when, in the face of positive testimony that subsequent to the making of the return he has distinctly admitted its falsity, he offers neither denial nor explanation of such admissions, the effect of his return as evidence in his favor is completely overcome, and is not sufficient to sustain a finding that the return is true. Rehearing denied.

We concur: DE HAVEN, J.; GAROUTTE, J.; MCFARLAND, J.; PATERSON, J.; HARRISON, J.

THRELKEL v. SCOTT. (No. 18,157.) (Supreme Court of California. Nov. 25, 1893.) FRAUDULENT CONVEYANCES - BETWEEN HUSBAND AND WIFE-MOTION TO SET ASIDE.

1. In an action to set aside a conveyance as in fraud of creditors, an allegation in the complaint that the grantor was insolvent when the conveyance was made, and that it was done with intent to defraud creditors, is sufficient, without specifically stating the manner in which the fraud was accomplished, and the conduct and acts in reference to it.

2. In such an action, statements made by the grantor shortly before executing the conveyance, showing his knowledge of his indebtedness, are admissible on the question of his intention in conveying away his property.

3. The fact that one conveys a large portion of his property, without valuable consideration, to his wife, knowing at the time that his debts cannot be paid without recourse to such property, tends strongly to prove that the conveyance was made with intent to defraud creditors.

4. The fact that the wife, on receipt of the deed, promised to pay all her husband's debts, does not preclude a finding that the convey

ance was fraudulent as against his creditors, since it may have been intended to give her an advantage as to the time of making payment, and thus hinder and delay creditors.

5. Knowledge of the wife as to her ausband's intention to defraud creditors on transferring his property to her is immaterial where she parted with no valuable consideration.

Commissioners' decision. Department 1. Appeal from superior court, Placer county; W. H. Grant, Judge.

Action by G. L. Threlkel, administrator, etc., of Robert N. Scott, deceased, against Harriet A. Scott, to set aside a conveyance by deceased to defendant as in fraud of creditors. From a judgment for plaintiff, defendant appeals. Affirmed.

Tuttle & Tuttle, for appellant. Hale & Craig and J. M. Fulweiler, for appellee.

TEMPLE, C. This action was brought under section 1589, Code Civil Proc., to recover for the estate property conveyed by the deceased, on the ground that the conveyance was made to defraud creditors. Defendant appeals from the judgment and an order refusing her a new trial. The case has been here before. See 89 Cal. 351, 26 Pac. 879. Since the first appeal the complaint was amended by adding an averment to the effect that the conveyance was made with the intent to defraud creditors. The complaint now avers facts showing the due appointment of the plaintiff as administrator; his qualification as such; that deceased was indebted in the sum of about $5,000, for which amount claims have been presented to plaintiff, as administrator, and which have been duly allowed. The assets in the hands of plaintiff, and their value, are stated, showing that they are insufficient to pay the claims allowed. The complaint then proceeds to charge: That October 4, 1888, deceased, being ill and contemplating approaching death, conveyed to the defendant, his wife, certain property, specially described in the complaint, and that defendant has since claimed to be the lawful owner thereof. That the conveyance was without any valuable consideration, and that at the time said Scott was indebted for all the liabilities presented against his estate and was insolvent. "That with intent to defraud his creditors, and to prevent the application of the proceeds of his said property to the payment of his just debts and liabilities, he · fraudulently conveyed the same to his said wife, the defendant herein; and plaintiff avers upon information and belief that it will require the whole of said property, and the value thereof remaining after the satisfaction of liens existing thereon at the time of said conveyance, to meet and discharge the said allowed claims due and payable out of the funds of said estate."

The point is made on demurrer to the amended complaint that it does not sufficiently set out the facts constituting the alleged fraud. It is contended that the

manner in which the fraud was accomplished, and all conduct and acts in reference to it, should be specifically stated. I think the facts are stated with sufficient particularity. They are the insolvency of the intestate, and the conveyance with the intent to defraud his creditors. These facts alone are sufficient. The case is not like that where deceit or imposition is charged. Each of these ultimate facts may be proved by a great variety of probative facts, the nature of which are not disclosed by the general statement. In such cases justice requires that further information should be given to enable a defendant to understand the charge made against him. Not so here. In fact, it is difficult to see how the charge can be made more specific.

Objection is made to the ruling admitting certain statements alleged to have been made by Scott at the time the deed was executed, and some six weeks prior to that time. These statements tended to show that Scott knew of his indebtedness, and hence to throw light upon the question of his intention when he executed the deed. The evidence was properly admitted.

It is not necessary to review the action of the court in overruling defendant's motion for nonsuit, for defendant did not rest there, but proceeded to put in further evidence. The question now is, does the evidence sustain the findings? The fact that one conveys a large portion of his property, without a valuable consideration, to his wife, knowing at the time that his debts cannot be paid without recourse to such property, tends strongly to prove that the conveyance was made with intent to defraud creditors. There is nothing in Bull v. Bray, 89 Cal. 294, 26 Pac. 873, opposed to this. On the contrary, this proposition is taken for granted in the opinion in that case. It is there only held that, however clear the evidence may be, the fraudulent intent must be found as a fact, and cannot be deduced as a conclusion of law from the finding that one greatly indebted conveyed a portion or all of his property as a gift. Although such facts, if found, might sufficiently prove fraud, still, under our statute, fraud is itself always a fact to be found by the jury, or the court when sitting without a jury. The fact of fraud was found here, and the finding is sustained by the evidence.

We do not know whether the court believed the testimony to the effect that Mrs. Scott promised, on receipt of the deed, that she would see all the debts paid; but, even accepting such statement as a fact, it would still leave room for the finding of a fraudulent intent. It might still have been intended to give her an advantage, in that she could take her own time to pay. This would tend to prove a design to hinder and delay creditors.

There was evidence from which the court might justly infer that Scott knew that the

(Supreme Court of California. Nov. 27, 1893) CRIMINAL LAW-REMARKS OF JUDGE-URGING JURY TO AGREE.

In a criminal prosecution, where the jury return into court some time after the case has been submitted to them, and state that there is no prospect for an agreement, it is prejudicial error for the judge to state that, in view of the evidence, he is at a loss to understand why the jury should disagree, since such remark cannot fail to create the impression that in his opinion the evidence required a conviction; and such error is not cured by his afterwards telling them that they are sole judges of all questions of fact, and of the credibility of the witnesses. Department 2. Appeal from superior court, Alameda county; W. E. Greene, Judge.

Defendant Kindelberger was convicted of assault with intent to rape, and appeals. Reversed.

D. T. Sullivan and W. J. Donovan, for appellant. Atty. Gen. Hart, for the People.

DE HAVEN, J. The defendant was found guilty of the crime of assault with intent to commit rape, and was sentenced by the judgment of the superior court to imprisonment in the state prison for a term of seven years. The appeal here is from the judgment, and is brought to this court upon the judgment roll alone, without any bill of exceptions.

The jury retired to deliberate upon their verdict at 9 o'clock in the evening, and, not having agreed, the jurors, upon their own request, were brought into court at 10 o'clock in the forenoon of the next day, when the following proceedings took place: "The Court: Well, upon what point do you desire instruction or points? A Juror: By request of the jurymen, I would ask if there could be any other form of verdict in the case? The Court: Is that all? A Juror: That is all, except that we are unable to agree. No prospect of agreeing. The Court: In reply to the latter part of the statement, --that the jury are unable to agree, and that there is no prospect of their agreeing,-the court has this to say: That, in view of the testimony in this case, the court is utterly at a loss to know why twelve honest men cannot agree in this case. Let me have that information, please. In that connection, further, I have this to say: That, in my short experience upon the bench, I have occasionally been associated with juries where some jurors, having an idea that they are smart men, prominent men, with large heads and big capacity, on going to the jury room, take occasion to express ill-digested and rapid opinions upon the case, and then stick to these opinions, right or wrong, unreasonably refusing to listen to the opinion and arguments of their fellow jurors, and so hang a jury. I have on some occasions, having something of a personal knowledge of jurors on the jury, taken occasion to caution the jurors against that course, and to say that jurors ought to go into the jury box without prejudice, without fear, without favor, with a desire to arrive at the truth, to sift and digest the testimony carefully and conscientiously, and not stubbornly to express an illdigested opinion, and stick to it. I repeat, gentlemen, that I see no reason on earth why a jury in this case, upon this testimony, cannot agree."

In thus addressing the jury, the learned judge of the superior court committed an error to the prejudice of the defendant. Nothing can be clearer than that in this charge the judge informed the jury that he had a fixed and definite conviction in regard to the verdict which they ought to return, and that in his opinion the evidence to support such conclusion was so plain and satisfactory that honest and intelligent jurors, who had heard the testimony, ought not to disagree as to its weight and effect; and we think the jury understood, or at least may have understood, from these unguarded remarks, that in the opinion of the judge the defendant was guilty, and that such should be the verdict. When, upon the trial of a defendant, the evidence is clearly insufficient to justify a verdict of guilty, it is the duty of the judge to so inform the jury, and to advise a verdict of acquittal. This power is sometimes exercised by courts, and is one so frequently invoked in the trial of criminal

cases that its existence may be regarded as a matter of common knowledge upon the part of jurors of ordinary intelligence and experience; and this fact is not to be lost sight of in considering the impression likely to have been made upon the jury by the charge of the judge in this case. To any one knowing that it is the duty of the court to advise an acquittal if the evidence is such that, in the opinion of the judge, 12 honest men would have no right to convict him, the remarks of the judge in this case could not fail to create the impression that he thought the jury ought to convict upon the evidence before them. But it is not necessary that we should be able to say that the jury must have so understood the charge. Unless it appears that it could not have been so understood, we cannot say that the charge was without prejudice to the defendant. The court has no right, except when advising an acquittal, to give any expression of its opinion as to the weight of evidence, or to tell the jury that the evidence is so clear that they, as honest men, ought not to disagree, which is in effect the same as telling them that there is no conflict in the evidence, and that, as honest men, they can render but one verdict. In a subsequent part of the charge the learned judge did inform the jury that they were the sole judges of all questions of fact, and of the credibility of the witnesses, and that the court had no right to trench upon their province in this respect; but the error already noticed in the previous part of the charge was not cured by this subsequent statement. The fact still remained impressed upon the minds of the jurors that it was the opinion of the judge that there ought to be no disagreement, and that the testimony would justify but one verdict. Judgment reversed, and cause remanded for a new trial.

We concur: MCFARLAND, J., FITZGERALD, J.

PEOPLE v. HANDLEY. (No. 21,021.) (Supreme Court of California. Nov. 28, 1893.) ARSON-DESCRIPTION OF PROPERTY-PLEADING AND PROOF.

An information for arson of a dwelling house which specifically describes it by its street number, and alleges that it was occupied by defendant, sufficiently identifies the property, without giving the owner's name; and the statement of such name in the information does not necessitate its proof on the trial, since it is merely an addition to a description which is full and complete without it.

Department 2. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

Martin H. Handley was convicted of arson, and appeals. Affirmed.

Robert Ferrall, for appellant. Atty. Gen. Hart, for the People.

FITZGERALD, J. The defendant was convicted of the crime of arson in the second degree, and sentenced to imprisonment in the state prison for the term of six years. From the judgment of conviction, and the order denying his motion for a new trial, this appeal is taken. Appellant relies for a reversal on two grounds: First, failure to prove the alleged ownership of the burned building; second, insufficiency of the evidence to sustain the verdict.

The house alleged to have been burned by the defendant is described in the information as follows: "A certain inhabited building, situate at number 139 Dolores street, in said city and county of San Francisco, the property of one Ellen Bolton, then and there actually occupied by the said Martin H. Handley," the defendant. It is claimed by appellant that the name of Ellen Bolton, the alleged owner of the building, does not appear, except as stated, anywhere in the record, and that there was no evidence adduced on the trial in support of such allegation of ownership. On this point, Miss Nellie Thompson, a witness for the prosecution, testified as follows: * My mother owns the premises 139 Dolores street. First saw defendant on 2d March. He wanted to see the house, and asked for the keys. Was with another man. Showed him the house. Said he would take it, and paid $2. Next day paid the balance, and got the keys,-four in all. Said would move in the following day. I was present at the fire, March 6th. The man with Handley was about his size, fair complexion, blonde mustache." The rule with reference to the proof required to support an information or indictment is that every fact or circumstance necessary to constitute the crime charged is material, and must be alleged and proved. But the allegation of a fact or circumstance not legally essential to the charge is mere surplusage, and may be disregarded. There are allegations, however, not necessarily essential, and which may be dispensed with; but, when they are laid in the information or indictment, they become material, and must be proved in all cases, when descriptive of the identity of that which is necessary to the charge. In the case before us, the name of the owner, although alleged, was immaterial, because it was not a necessary part of the description of the crime charged, therefore not necessary to be proved. Omitting the name of Ellen Bolton from the description contained in the information, such description is a sufficient identification of the house which the defendant is charged with burning; and the evidence adduced at the trial tended to show that, at the time of the fire referred to, he occupied it as the tenant of another, who was the owner thereof, and that he paid such owner the rent therefor. It therefore follows that proof of

BELCHER, C. The defendant was convicted of the crime of embezzlement, and the judgment was that he be punished by imprisonment in the state prison at Folsom for the term of three years. From this judgment, and an order denying his motion for a new trial, he appeals. The information charges that on the 10th day of August, 1892, the defendant received from one Robert C. Brinkley, as his agent, the sum of $390 in lawful money of the United States. which he was to pay over to one W. E. De Groot for and on account of Brinkley, but that, in violation of the terms and objects of his agency, he did then and there, on the day named, "unlawfully, willfully, fraudulently, corruptly, and feloniously retain. withhold, secrete, embezzle, and convert and appropriate to his own use," out of the $390 so received, the amount and sum of $300, whereby said Brinkley was deprived and defrauded of the said sum by the defendant The appellant contends that the verdict was not justified by the evidence, and hence that the judgment should be reversed.

It was proved that Brinkley and defendant had been acquainted for 25 years. In February, 1892, defendant came to this state, and immediately went to the house of Brinkley, in Los Angeles, and remained there until September following, when he left for San Francisco, where he obtained employ ment. In May, 1892, Brinkley went east, and was there engaged and traveling about with a theatrical company. During his absence, defendant attended to his financial affairs, paid his bills, etc. Brinkley testi