Co. commenced an action against Davis & Shinnick for the sum of $7,641, and caused an attachment to issue against all the property of Davis & Shinnick, but which attachment was not at that time served. On the next day, October 31st, Fyhrie & Co. procured Davis, one of the partners of the firm of Davis & Shinnick, to execute in the firm name an assignment of all their property to Louis C. Fyhrie, which assignment made Fyhrie & Co. preferred creditors, and under which Louis C. Fyhrie, as assignee, entered into and took possession of all the property and effects of Davis & Shinnick, and held such possession until the sixth day of November following, upon which day said Louis C. Fyhrie, acting for the firm of Fyhrie & Co., placed said attachment in the hands of the sheriff, and caused the same to be levied upon all the property of Davis & Shinnick so assigned as aforesaid. On the thirteenth day of November, Steinhart & Co. commenced an action against Davis & Shinnick, and caused an attachment to be levied upon the same property.

Upon this state of facts, what are the rights of the parties? There is no attack upon the indebtedness of Davis & Shinnick to Fyhrie & Co., and no question but what the attachment in their behalf to secure the same was regularly and properly issued. The plaintiffs ask to have this attachment set aside for the reason that after the same was issued, and before it had been served by levying upon any property, Davis, one of the partners of the firm of Davis & Shinnick, went through the extraordinary performance of making an assignment of the personal and real property of the firm for the benefit of Fyhrie & Co., without the knowledge or consent, and, for all that appears, against the will, of his copartner, though the assignment may have been made in his presence. There does not seem to be much doubt that such an assignment is void. Steinhart & Co. were not injured by this void assignment. Notwithstanding the assignment they might have commenced their action and had the property attached. It is not alleged that they were in any manner prevented, hindered, or delayed in making their attachment by reason of the assignment. If the assignee had taken possession of the property, the assignment being void, such possession would not have hindered or delayed the levy and execution of their attachment in a proper action, in which the assignee was made a party. What reason, then, is there for setting aside the attachment of Fyhrie & Co. ? It was first in time. It was issued upon a valid debt. It was issued before the assignment, and might have been levied then. The property in question was levied on and taken possession of subsequent to the assignment, by virtue of this attachment. There is no charge of collusion or fraud between the assignee and Fyhrie & Co. in this matter. If the sheriff could have obtained possession of the property by virtue of the Fyhrie attachment, after the assignment, he might have done the same thing for Steinhart & Co. if they had caused their attachment to issue in time. It is not alleged that they were out of time,

or that they were hindered or delayed in any manner, either by reason of the assignment, or any act of the assignee or Fyhrie & Co.

Did Fyhrie & Co., by virtue of the allegations of the complaint, become trustees of Steinhart & Co. ? There is nothing in the complaint to show that Fyhrie & Co. attached any of the goods that Davis & Shinnick purchased of Steinhart & Co., but if their attachment covered and included all the goods so purchased, did Fyhrie & Co., or Louis C. Fyhrie, thereby become the trustees of Steinhart & Co. ? It is alleged that in the sale of these goods to Davis & Shinnick the firm of Steinhart & Co. relied upon the statements of Davis & Shinnick, contained in their letter, and the representations of Louis C. Fyhrie, contained in his telegram. What of it? For all that appears in the complaint these statements and representations, at the time they were made, were absolutely and entirely true, and such as those parties might have honestly and conscientiously made. The complaint does not attack the good faith of these persons in making these statements and representations. There is nothing to show that they were untrue. It is not alleged that they were false, or that they were made with a fraudulent intent. But if they were wholly untrue, and made with intent to deceive, it is not shown that the plaintiffs were in such a position as to have had the right to rely upon them. If they knew that the statements and representations were false, they relied upon them at their peril. It is not alleged that these representations were false. And if they were in fact false, it is not shown but what the plaintiffs knew it. But if the statements contained in the letter of Davis & Shinnick were false, and made for the purpose of deceiving Steinhart & Co., the firm of Fyhrie & Co. could not be held responsible for such statements, in the absence of any averments showing collusion or conspiracy between Davis & Shinnick and Fyhrie & Co. to defraud Steinhart & Co. In the absence of such averments, Fyhrie & Co. would not be responsible for, or affected in any way by, the false statements of Davis & Shinnick. Neither could Fyhrie & Co. be held responsible for a false telegram of Louis C. Fyhrie, unless the company authorized it, which they did not. But as the good faith of the letter and telegram are in no manner attacked, we must take it that the statements and representations therein contained, at the time they were made, were true in every particular; and therefore, since the assignment was void, there does not seem to be any reason, by virtue of the allegations of the complaint, for declaring a trust in favor of Steinhart & Co., or for setting aside the attachment of Fyhrie & Co.

(66 Cal. 507)

SUPREME COURT OF CALIFORNIA,

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. JANUARY, Treasurer, etc. (No. 9,439.)

Filed March 16, 1885.

FUNDS OF UNIVERSITY OF CALIFORNIA-DEPOSIT IN STATE TREASURY-DISBURSE

MENT.

Under the provisions of the California constitution and statutes, it is the duty of the state treasurer to receive and keep all funds deposited by the regents of the state university, subject to the control and management of the said regents, and to disburse the same, upon presentation to him of a resolution of the said regents, indorsed by the governor of the state, demanding the same or any portion thereof, and he must disburse said funds in such manner without requiring, in addition thereto, a warrant of the comptroller or the depositing of an equivalent security, and without regard to the use which the regents propose to make of such money.

In bank. Petition for writ of mandate.

J. B. Mhoon, for petitioner.

Atty. Gen. E. C. Marshall and J. M. Lesser, for respondents. SHARPSTEIN, J. The statute makes it the duty of the treasurer of this state "to receive and safely keep all funds and securities depos ited, as herein provided, in the state treasury, by the regents of the university of California, subject at all times to the control and management of said regents; and the state treasurer shall deliver any or all of said securities and funds, so deposited in the state treasury, to the treasurer of the regents of the university of California, upon presentation to him of a resolution of the said regents, indorsed by the governor of the state, demanding the same, or any portion thereof." Statutes & Amendments to Codes 1883, p. 54.

It appears that the treasurer of the regents presented to the respondent, who was then state treasurer, a resolution of the regents, indorsed by the governor, directing respondent to deliver to the treasurer of the regents $4,000 of the funds deposited by the said regents in the state treasury for safe-keeping, and that he refused so to do. The authority of the state treasurer to receive any securities or funds of the university is derived solely from the statute, which requires him to deliver such funds and securities when requested to do so in the manner prescribed by the statute.

The act of March 23, 1868, entitled "An act to create and organize the University of California," provides that "all moneys which may at any time be in the state treasury, and subject to the use of the said board of regents, may be drawn therefrom by the president of the board, upon the order of said board in favor of the treasurer of the university." And the constitution declares that "the University of California shall constitute a public trust, and its organization and government shall be perpetually continued in the form and character

prescribed by the organic act creating the same, passed March 23, 1868, (and the several acts amendatory thereof,) subject only to such legislative control as may be necessary to insure compliance with the terms of its endowments, and the proper investment and security of its funds." Article 9, § 9.

In view of these statutory and constitutional provisions we do not doubt that it was the duty of the respondent to comply with the resolution of the regents, without requiring, in addition thereto, a warrant of the comptroller, or the depositing of an equivalent security, and without regard to the use which the regents proposed to make of the money. With that the respondent had nothing to do. Nor can we pass upon that question in this proceeding. We might give our individual views on it, but we more than doubt the propriety of doing so. The only question which we can decide is whether, upon the facts disclosed by the record, a writ should issue as prayed. The fact of a proper demand having been made on the respondent, and his having refused to perform a duty plainly devolved on him by law, entitles the petitioners to the writ.

Ordered that the writ issue as prayed.

We concur: MCKEE, J.; Ross, J.; MYRICK, J.; THORNTON, J.; MORRISON, C. J.; MCKINSTRY, J.

(2 Cal. Unrep. 448)

REGENTS v. DUNN. (No. 9,440.)

Filed March 16, 1885.

FUNDS OF UNIVERSITY OF CALIFORNIA IN STATE TREASURY-DISBURSEMENT · COMPTROLLER'S WARRANT UNNECESSARY.

Funds and securities deposited by the regents of the University of California in the state treasury, may be drawn therefrom in the manner provided by statute, namely, on a resolution of the said regents, indorsed by the governor of the state, demanding the same, and section 22, art. 4, of the California constitution (providing how money may be drawn from the treasury in other cases) does not apply to such funds and securities, and the warrant of the comptroller is therefore not an essential prerequisite to the disbursement of such funds by the treasurer,

In bank. Petition for writ of mandate to compel the state comptroller to draw his warrant for certain funds in the state treasury, deposited by the regents of the state university, and thereafter ordered drawn therefrom by resolution of the regents, in the form provided. by statute.

John B. Mhoon, for petitioner.

Atty. Gen. E. C. Marshall and J. M. Lesser, for respondents.

BY THE COURT. The funds and securities deposited by the regents of the university in the state treasury for safe-keeping, may be drawn therefrom in the manner provided by the statute. The statutes which authorize the deposit provide how it shall be withdrawn. It is clear

that the first clause of section 22, art. 4, of the constitution was not intended to apply to these funds and securities.

Application denied.

CONKLIN V. STONE.

(No. 8,215.)

Filed March 19, 1885.

FINDINGS-DUTY OF TRIAL COURT AS TO FINDINGS ON ISSUES.

On failure of the trial court to find on the issues made by the pleadings in an action, the judgment must be reversed on appeal, and the cause remanded for a new trial.

Department 1. Appeal from the superior court of Monterey county. S. W. Swinnerton, for appellant.

W. H. Webb, Jas. A. Wall, and N. C. Briggs, for respondent.

BY THE COURT. For a failure on the part of the court below to find on the issues made by the pleadings in the case, the judgment must be reversed, and the cause remanded for a new trial. So ordered.

(2 Cal. Unrep. 449)

MONROE v. COOPER. (No. 8,692.)

Filed March 19, 1885.

REVERSAL FOR CONFLICT IN INSTRUCTIONS ON MATERIAL ISSUES.

Where there are conflicting instructions on material issues in a case, the judgment will be reversed.

Department 1. Appeal from the superior court of the county of Monterey.

W. H. Webb and Jas. A. Wall, for appellant.

S. F. Geil and H. V. Morehouse, for respondent.

Ross, J. Among other matters the defendant sets up in his answer that the plaintiff took his sheep under a contract of agistment, and that, by reason of negligence on plaintiff's part, a large number of the sheep perished, to defendant's damage, etc.

The fifth instruction given by the court below to the jury is as follows:

"If you should find from the evidence that plaintiff took and kept the defendant's sheep to supervise, care for, and pasture, for a compensation to be paid by defendant, the plaintiff thereby became and was the bailee of said sheep for defendant, and the law imposed on plaintiff the duty of properly supervising, caring for, and pasturing said sheep; and if any loss, damage, or injury occurred to said sheep while in the possession of plaintiff, the burden of proof is cast upon him to account for and to prove that such loss, damage, or injury was not owing to his negligence or want of care; otherwise he is liable to defendant for such loss, damage, or injury, and you should so find." In the tenth instruction the court said:

"I instruct you that the burden of proof to establish negligence is upon the party charging it, (who was the defendant.) It is not enough for him to prove that he has suffered loss by some event which happened, or by the act or omissions of the party charged; he must also prove that the party charged