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was not, like this, an action on the case alleging the facts material to the right of te against the sheriff for damages, but was a covery. And such is precisely the course summary proceeding by motion in an action which this plaintiff has pursued. He has between other parties to enforce the penal. proceeded regularly by action, and his coties prescribed by section 9 of the act of plaint, as it appears to us, contains every April 29, 1851, (St. 1851, p. 191;) and all allegation necessary to show his right to re the court was called upon to decide, and all cover the statutory damages for selling lipd it did decide, was that in that summary pro

without the legal notice. Code Civil Prve ceeding the return of the sheriff (a return 88 692, 693. There was no demurter to his of nulla bona) was conclusive in his favor; complaint, but an answer taking issue upoo or, in other words, that the court could not the fact of notice; and this issue was tried try, upon affidavits, in a collateral proceed in the superior court as if it was properly ing in an action between other parties, is raised, all plaintiff's evidence tending to sues which were the proper subject of an prove want of notice being received witbou action against the sheriff, in which he could objection. If the complaint is in any re demand, if he chose, a trial by jury. If this spect deficient in substance, the objection is not made plain by the opinion itself, it cer

should at least have been taken at the trial tainly is made plain by reference to the au before it was too late to amend, and, DOT thorities cited by counsel, and referred to having been so taken, it ought not now to by the text writers named in the opinion of prevent the granting of a new trial, if the the court. These decisions-and no doubt issues actually tried have been found 600many more could be found to the same effect trary to the evidence. But we do not see -certainly do establish the doctrine that, as that the complaint is in any respect detiagainst a collateral attack by motion in the cient. The only objection suggested by the action in which the execution issues, the re argument of counsel is that it should, like turn of the sheriff of nulla bona is conclusive the declaration in the common-law action in his favor; and this is the common-law for a false return of nulla bona, have al rule, which was held to have been unaltered leged the return, and its falsity. But the reaand unaffected by the statute above referred sons for putting in those allegations under to. But the same decisions which enforce the common-law practice have no existence this rule expressly concede that the party in under our system, which provides for but jured by the neglect or misconduct of the one form of action, in which no facts De sheriff has his remedy by action, and so it be alleged except those which must be was expressly said in Egery V. Buchanan proved. It was not the return to the writ that the remedy of the plaintiff's was by ac (of fieri faciaz by which the execution credtion for a false return. The language of the itor was damaged, but the failure to make opinion immediately following this state the money which the sheriff might bare ment, to the effect that a sheriff's return is made by properly executing it, and the alle not traversable, etc., was used with reference gations of the return, and its falsity, were to the proceeding then under review, and not only necessary to show that the plaintii with reference to an action against the sher was proceeding in proper form, for there iff. If the court had meant to say that, in an was one forın of procedure by motion, rule, action for a false return, the return itself is or action where the writ had not been re 'conclusive in favor of the sheriff, the remark turned, and another form of procedure wben would not only have been obiter; it would it had been returned; and when the have been absurd. But it seems to us per return bad been made, and was true. fectly apparent that the court neither meant the proper procedure was by motion, or to say nor did say anything of the kind. On by action of debt founded on the return. the contrary, it stated in plain terms that the or in assumpsit for money had and re remedy of plaintiffs was by an action for a ceived. So that it was necessary to allege false return.

the falsity of the return, when such was the What, then, is an action for a false re case, in order to show that plaintiff had cunturn? "False return" was simply the specif Bienced the proper action, and to avoid a ic name (probably derived from the forms variance. See Tidd's Practice and Chitty's of the original writ) for one of the numer Pleadings, passim. But in this case there ous class of actions on the case. It was not was 10 such necessity. The plaintiff was an action in rem, for the purpose of cancel damaged, and his cause of action under the ling or setting aside the return in order to statute complete, as soon as the defendant pave the way for another action for dam delivered a certificate of purchase to the ages, but was itself an action for damages, | purchaser at the execution sale, if in fact the founded upon the official misconduct of the sale was without notice, for the title of the sheriff; and therefore all that the court purchaser does not depend on the sheriff's meant, in saying that the remedy of the return, and in the absence of such return plaintiffs was by an action for a false re the debtor is obliged either to redeem his turn, was that they must proceed by action, land, or run the risk of losing it by proof not necessarily in the form of the common aliunde that the sale was valid. law action, but, as our system of pleading If these views are well founded, counsel and practice enjoins, by filing a complaint will see that a more careful study of his ao

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thorities would have made it plain to him, ance was fraudulent as against his creditors, as it seems to us, that we have not, on this since it may have been intended to give her an point, made a wide, or any, "departure from

advantage as to the time of making payment,

and thus binder and delay creditors. what has been deemed settled rules of law." 5. Knowledge of the wife as to her nus

As to the other proposition upon which band's intention to defraud creditors on transcounsel bases his petition for a rehearing,

ferring his property to her is immaterial where

she parted with no valuable consideration. viz. that we have gone contrary to the settled practice of the court, in reversing a

Commissioners' decision. Department 1. finding of fact as to which the evidence is

Appeal from superior court, Placer county; conflicting, we have only to renark that the

W. H. Grant, Judge. rule he invokes is not that a finding will be

Action by G. L. Threlkel, administrator, sustained wbenever there is any evidence,

etc., of Robert N. Scott, deceased, against however slight, tending to prove the fact

Harriet A. Scott, to set aside a conveyance found, but is more correctly stated as fol.

by deceased to defendant as in fraud of lows: A finding, though against the ap

creditors. From a judgment for plaintiff, parent weight of evidence, will not be dis

defendant appeals. Affirmed. turbed if there is substantial conflict of evi Tuttle & Tuttle, for appellant. Hale & dence as to the fact found. In this case we Craig and J. M. Fulweiler, for pellee. think the conflict is not substantial. Counsel seem to think that because a sheriff's return TEMPLE, C. This action was brought is, in some cases, conclusive, it is therefore under section 1589, Code Civil Proc., to reto be regarded as of great weight in the cover for the estate property conveyed by cases in which it is merely prima facie sufi the deceased, on the ground that the convey. cient to establish the facts stated. But the ance was made to defraud creditors. 'Deconsiderations of policy and convenience fendant appeals from the judgment and an upon which the rule is founded, that, as be order refusing her a new trial. The case tween the parties to an action and their has been here before. See 89 Cal. 351, 26 privies, the return of a sheriff is conclusive, Pac. 879. Since the first appeal the com. have no application in a suit against him for plaint was amended by adding an averneglect of official duty. In such cases his ment to the effect that the conveyance was return, although prima facie evidence in his made with the intent to defraud creditors. favor, is essentially weak evidence; and The complaint now avers facts showing the when, in the face of positive testimony that due appointment of the plaintiff as adminsubsequent to the making of the return he istrator; his qualification as such; that dehas distinctly admitted its falsity, he offers ceased was indebted in the sum of about neither denial nor explanation of such ad $5,000, for which amount claims have been missions, the effect of his return as evidence presented to plaintiff, as administrator, and in his favor is completely overcome, and is which have been duly allowed. The assets not sufficient to sustain a finding that the in the hands of plaintiff, and their value, are return is true. Rehearing denied.

stated, showing that they are insufficient to

pay the claims allowed. The complaint We concur: DE HAVEN, J.; GAROUTTE, then proceeds to charge: That October 4, J.; McFARLAND, J.; PATERSON, J.; HAR 1888, deceased, being ill and contemplating RISON, J.

approaching death, conveyed to the defendant, his wife, certain propertyspecially described in the complaint, and that defend

ant has since claimed to be the lawful own: THRELKEL v. SCOTT. (No. 18,157.)

er thereof. That the conveyance was with(Supreme Court of California. Nov. 25, 1893.) out any valuable consideration, and that at FRAUDULENT CONVEYANCES BETWEEN HUSBAND the time said Scott was indebted for all the AND WIFE-MOTION TO SET ASIDE.

liabilities presented against his estate and 1. In an action to set aside a conveyance

was insolvent. “That with intent to defraud as in fraud of creditors, an allegation in the complaint that the grantor was insolvent when

bis creditors, and to prevent the application the conveyance was made, and that it was done of the proceeds of his said property to the with intent to defraud creditors, is sufficient, payment of his just debts and liabilities, he . without specifically stating the manner in which the fraud was accomplished, and the conduct

fraudulently conveyed the same to his said and acts in reference to it.

wife, the defendant herein; and plaintiff 2. In such an action, statements made by avers upon information and belief that it the grantor shortly before executing the con

will require the whole of said property, and veyance, showing his knowledge of his indebtedness, are admissible on the question of his in

the value thereof remaining after the satistention in conveying away his property.

faction of liens existing thereon at the time 3. The fact that one conveys a large portion of said conveyance, to meet and discharge of his property, without valuable consideration,

the said allowed claims due and payable out to his wife, knowing at the time that his debts

of the funds of said estate." cannot be paid without recourse to such property, tends strongly to prove that the convey The point is made on demurrer to the ance was made with intent to defraud creditors.

amended complaint that it does not suffi4. The fact that the wife, on receipt of the

ciently set out the facts constituting the deed, promised to pay all her husband's debts, does not preclude a finding that the convey alleged fraud. It is contended that the

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manner in which the fraud was accomplish- | insurance policy, if the amount were paid ed, and all conduct and acts in reference to the estate, would not pay all his debts. to it, should be specifically stated. I think There was evidence tending to show that be the facts are stated with sufficient particu- knew of his indebtedness, and the presumplarity. They are the insolvency of the in tion is that he knew the condition of his aftestate, and the conveyance with the intent fairs. Whether Mrs. Scott knew the condito defraud his creditors. These facts alone tion of her husband's affairs is immaterial, are sufficient. The case is not like that as she gave no valuable consideration for where deceit or imposition is charged. the property; but I think there was eriEach of these ultimate facts may be proved dence tending to show knowledge on her by a great variety of probative facts, the part. The judgment and order should be nature of which are not disclosed by the affirmed. general statement. In such cases justice requires that further information should be We concur: VANCLIEF, C.; BELCHER, C. given to enable a defendant to understand the charge made against him. Not so here. PER CURIAM. For the reasons given in In fact, it is difficult to see how the charge the foregoing opinion, the judgment and ecan be made more specific.

der are affirmed. 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

ELLEDGE v. NATIONAL CITY & O. R. CO. time. These statements tended to show

(No. 19,167.) that Scott knew of his indebtedness, and (Supreme Court of California. Dec. 9, 183.) hence to throw light upon the question of

On rehearing. For former opinion, see 31 his intention when he executed the deed.

Pac. 720.
The evidence was properly admitted.
It is not necessary to review the action

PER CURIAM. The petition for rebear. of the court in overruling defendant's mo

ing is denied, but that part of the opinion tion for nonsuit, for defendant did not rest

which appears to hold that an employe cao there, but proceeded to put in further evi

recover for injury caused by the negligence dence. The question now is, does the evi

of a coemploye, committed before the endence sustain the findings? The fact that

ployment of the plaintiff, is stricken out. 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 PEOPLE v. KINDELBERGER. No. conveyance was made with intent to de

21,020.) fraud creditors. There is nothing in Bull (Supreme Court of California. Nov. 27, 1893) v. Bray, 89 Cal. 294, 26 Pac. 873, opposed to CRIMINAL Law-REMARKS OF JUDGE-UeGist this. On the contrary, this proposition is

JURY TO AGREE. taken for granted in the opinion in that

In a criminal prosecution, where the jury It is there only held that, however

return into court some time after the case bas

been submitted to them, and state that there is clear the evidence may be, the fraudulent no prospect for an agreement, it is prejudicial intent must be found as a fact, and cannot error for the judge to state that, in view of the be deduced as a conclusion of law from the

evidence, he is at a loss to understand why the

jury should disagree, since such remark cannot finding that one greatly indebted conveyed fail to create the impression that in his opinios a portion or all of his property as a gift. the evidence required a conviction; and such Although such facts, if found, might suffi. error is not cured by his afterwards telling

them that they are sole judges of all questions ciently prove fraud, still, under our statute,

of fact, and of the credibility of the witnesses, fraud is itself always a fact to be found by the jury, or the court when sitting without

Department 2. Appeal from superior court,

Alameda county; W. E. Greene, Judge. a jury. The fact of fraud was found here,

Defendant Kindelberger was convicted of and the finding is sustained by the evidence.

assault with intent to rape, and appeals. We do not know whether the court be

Reversed. lieved the testimony to the effect that Mrs. Scott promised, on receipt of the deed, that D. T. Sullivan and W. J. Donovan, for apshe would see all the debts paid; but, even pellant. Atty. Gen. Hart, for the People. accepting such statement as a fact, it would still leave room for the finding of a fraudu DE HAVEN, J. The defendant was found lent intent. It might still have been intend-guilty of the crime of assault with intent to ed to give her an advantage, in that she commit rape, and was sentenced by the judgcould take her own time to pay. This would ment of the superior court to imprisonment tend to prove a design to hinder and delay in the state prison for a term of seven years. creditors.

The appeal here is from the judgment, and There was evidence from which the court is brought to this court upon the judgment might justly infer that Scott knew that the l roll alone, without any bill of exceptions.

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case.

To any

The jury retired to deliberate upon their cases that its existence may be regarded as verdict at 9 o'clock in the evening, and, a matter of common knowledge upon the not having agreed, the jurors, upon their part of jurors of ordinary intelligence and own request, were brought into court at experience; and this fact is not to be lost 10 o'clock in the forenoon of the next day, sight of in considering the impression likely when the following proceedings took place: to have been made upon the jury by the “The Court: Well, upon what point do you charge of the judge in this case. desire instruction or points? A Juror: By one knowing that it is the duty of the court request of the jurymen, I would ask if there to advise an acquittal if the evidence is such could be any other form of verdict in the that, in the opinion of the judge, 12 honcase? The Court: Is that all? A Juror: est men would have no right to convict That is all, except that we are unable to him, the remarks of the judge in this case agree. No prospect of agreeing. The Court: could not fail to create the impression that In reply to the latter part of the statement, he thought the jury ought to convict upon -that the jury are unable to agree, and that the evidence before them. But it is not there is no prospect of their agreeing,-the necessary that we should be able to say that court has this to say: That, in view of the the jury must have so understood the charge. testimony in this case, the court is utterly Unless it appears that it could not have at a loss to know why twelve honest men been so understood, we cannot say that the cannot agree in this case. Let me have that

charge was without prejudice to the deinformation, please. In that connection, fur fendant. The court has no right, except ther, I have this to say: That, in my short when advising an acquittal, to give any ex-, experience upon the bench, I have occa. pression of its opinion as to the weight of sionally been associated with juries where evidence, or to tell the jury that the evisome jurors, having an idea that they are dence is so clear that they, as honest men, smart men, prominent men, with large heads

ought not to disagree, which is in effect the and big capacity, on going to the jury room, same as telling them that there is no contake occasion to express ill-digested and rapid flict in the evidence, and that, as honest opinions upon the case, and then stick to

men, they can render but one verdict. In a these opinions, right or wrong, unreasonably

subsequent part of the charge the learned refusing to listen to the opinion and argu judge did inform the jury that they were ments of their fellow jurors, and so hang a

the sole judges of all questions of fact, and jury. I have

On
some occasions, having

of the credibility of the witnesses, and that something of a personal knowledge of jurors the court had no right to trench upon their on the jury, taken occasion to caution the

province in this respect; but the error aljurors against that course, and to say that

ready noticed in the previous part of the jurors ought to go into the jury box without

charge was not cured by this subsequent prejudice, without fear, without favor, with

statement. The fact still remained ima desire to arrive at the truth, to sift and

pressed upon the minds of the jurors that it digest the testimony carefully and conscien.

was the opinion of the judge that there tiously, and not stubbornly to express an ill

ought to be no disagreement, and that the digested opinion, and stick to it. I repeat,

testimony would justify but one verdiot. gent amen, that I see no reason on earth

Judgment reversed, and cause remanded for why a jury in this case, upon this testimony,

a new trial. cannot agree." In thus addressing the jury, the learned

We concur: MCFARLAND, J., FITZGERjudge of the superior court committed an

ALD, J. error to the prejudice of the defendant. Nothing can be clearer than that in this charge the judge icformed the jury that he had a fixed and definite conviction in regard

PEOPLE v. HANDLEY. (No. 21,021.) to the verdict wbich they ought to return, and that in his opinion the evidence to sup

(Supreme Court of California. Nov. 28, 1893.) port such conclusion was so plain and satis ARSON_DESCRIPTION OF PROPERTY-PLEADING factory that honest and intelligent jurors,

AND PROOF. who had heard the testimony, ought not to

An information for arson of a dwelling disagree as to its weight and effect; and we house which specifically describes it by its street think the jury understood, or at least may

number, and alleges that it was occupied by de

fendant, sufficiently identifies the property, withhave understood, from these unguarded re

out giving the owner's name; and the statemarks, that in the opinion of the judge the ment of such name in the information does not defendant was guilty, and that such should necessitate its proof on the trial, since it is merebe the verdict. When, upon the trial of a

ly an addition to a description which is full and

complete without it. defendant, the evidence is clearly insufficient to justify a verdict of guilty, it is the duty of Department 2. Appeal from superior court, the judge to so inform the jury, and to ad city and county of San Francisco; James M. vise a verdict of acquittal. This power is Troutt, Judge. sometimes exercised by courts, and is one Martin H. Handley was convicted of arson, so frequeutly invoked in the trial of criminal and appeals. Affirmed.

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

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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 prov. ed. 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 conricted 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 $300 in lawful money of the United States, which he was to pay over to one W. E. De Groot for and on account of Brinkles, but that, in violation of the terms and objects of his agency, he did then and there, on the day named, “unlawfully, willfully, fraudolently, corruptly, and feloniously retain. withhold, secrete, embezzle, and concert and appropriate to his own use," out of the $30 so received, the amount and sum of $390, whereby said Brinkley was deprired and de frauded of the said sum by the defendant. The appellant contends that the perdiet 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 emplos. ment. In May, 1892, Brinkley went east, and was there engaged and traveling about with a theatrical company. During his ab sence, defendant attended to his financia) affairs, paid his bills, etc. Brinkley testi

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