spondent held that "when a party, against whom a judgment is entered, is present in court, and requests a favor of the prevailing party in relation to said judgment so entered, then no written notice is required." That relator might have waived notice we have no doubt, (Corbett v. Swift, 6 Nev. 195,) but we do not think he did so. The legal presumption of a waiver of any right by a litigant will not be drawn, except in a clear case, and especially not, when to allow such presumption, would be to deprive a party of his day in court. Williams v. Keller, 6 Nev. 141. See, also, Munch v. Williamson, 24 Cal. 167; Johnston v. Yale, 19 La. Ann. 212; Killip v. Empire Mill Co. 2 Nev. 40.

It is averred in the petition of relator that the request, to the effect that "no more costs be added in entering judgment than could be helped," was made on the street, and in conversation relating to her sickness, which made her incapable, at that time, of advising as to what steps should be taken in the case, and this averment is not denied; but the result would be the same if it had been made in open court. Certainly there was no express waiver; and plaintiff's attorney, to whom the request was made, does not claim, in his affidavit, that he was thereby induced to think that notice was waived, or that he and his associates failed to give the notice by reason of the request. He says he consented to what was asked, but he nowhere asserts that he, in fact, did anything, or failed to do anything, that would not have been done, or left unperformed, if he and relator's attorney had had no conversation.

It is common knowledge among attorneys that items of doubtful legality are oftentimes inserted in cost-bills, saying nothing about such as are absolutely illegal; and many times, in doing what the law requires, more expense may be made than is necessary. To infer that the request was intended to include such acts as the law and practice of courts demanded, would be presuming in favor of a waiver that deprives relator of a legal right. Suppose counsel for plaintiff had filed their memorandum of costs without verification, we hardly think they could have justified their action by invoking the waiver now claimed; and yet, had they done so, they would have saved relator the cost of verification, as in the case in hand he was saved the expense of filing the notice. If an attorney does his duty, he cannot help doing what the law commands him to do, in the absence of a plain waiver of a right that can be waived. From the language used by relator's attorney, respondent had no right to presume that he intended to waive the performance of any statutory requirement, or that plaintiff's attorney would have been justified in thinking that they had been waived. It is well settled that, under a statute like ours, no oral communication is sufficient, and that no presence in court and hearing the decision announced, satisfies the law. Fry v. Bennett, 16 How. Pr. 404.

A party undertaking to limit the time for moving for a new trial

or appealing is held to strict practice. In re New York C. & H. R. R. Co. 60 N. Y. 115.

In Rankin v. Pine, 4 Abb. Pr. 309, it was held that, in order to limit the right of appeal, service of written notice upon the party was necessary, even when the appeal is from a judgment entered by the appellant himself. And see Staring v. Jones, 13 How. Pr. 428; Valton v. National Loan Fund L. A. Soc. 19 How. Pr. 517.

In Biagi v. Howes, ante, 100, the court said:

"We are of opinion that the true construction of the statute (section 659, Code Civil Proc.) is that a party intending to move, has a right to wait for a notice in writing (section 1010, Code Civil Proc.) of the decision, from the adverse party, before giving notice of intention to move for a new trial, and that he is entitled to such notice of decision before he is called on to act, although he is present in court when the decision is rendered, and waives findings, and asks for a stay of proceedings in the judgment. This is much the best rule. It is more certain and definite, and prevents controversies which under any other construction would be likely to arise, and, above all, accords, in our opinion, with the intention of those enacting the statute. Carpentier v. Thurston, 30 Cal. 125; Roussin v. Stewart, 33 Cal. 210; Sawyer v. San Francisco, 50 Cal. 375."

Mandate ordered.

(66 Cal. 668)

SUPREME COURT OF CALIFORNIA.

PEOPLE v. CUNNINGHAM. (No. 20,002.)

Filed April 29, 1885.

For majority opinion, see ante, 700.

In bank. The opinion of the court is reported ante, 700. The opinion of department 2 is found in 4 PAC. REP. 1144.

THORNTON, J. In this case I dissent, and adhere to the opinion filed in department 2. I have examined the cases cited in the opinion drawn up by MCKEE, J., and find but one which has any application to the case in hand,-People v. Robles, 34 Cal. 591. I cannot think that this case was properly decided. It is not in line with other decided cases, and is sustained by no authority that I have been able to find. None is cited in the opinion. It is opposed to the statute, (Penal Code, § 950,) and should not be regarded as authority. The fact that other property found in the possession of the defendant when he was arrested, of the larceny of which he was not accused by indictment or by information, cannot be proved to be stolen in order to show to a jury that he is guilty of the larceny of the property found in his possession at the time of his arrest, of which he was accused regularly, and for which he was on trial. The mere incident of time affords no evidence of intent. If it does, why does not the fact that the defendant had in his possession stolen property 24 hours before his arrest afford evidence of intent, and therefore admissible on such issue? Yet the latter fact would be excluded from the consideration of the jury. But whether such evidence in either case would show intent is not the question. By virtue of the statute (section 950, Penal Code) the evidence is not admissible, for the reason that a person cannot be tried for an offense of which he is not informed by the information or indictment that he is accused. See Walker v. Com. 1 Leigh 574. He would, in such case, be taken by surprise. He would not have been informed of the offense of which he was accused, and would have taken no steps to prepare to defend himself as to such offense. People v. Lopez, 59 Cal. 362, does not present the point involved herein. The evidence held to be admissible in that case was received in this without objection.

The foregoing observations, with the opinion rendered in department 2, will constitute my dissenting opinion.

(2 Cal. Unrep. 472)

OLIVER, Adm'r, etc. v. BLAIR and others. (No. 8,809.)

Filed April 30, 1885.

DECREE-ALLEGATIONS OF COMPLAINT TO SUPPORT.

Where a complaint alleges that certain defendants were the owners of stock, and that they transferred the same for certain purposes to another, who, in turn, in fraud and violation of the agreement under which he received the stock, transferred the same to the appellant, who, having full knowledge of the facts, threatened to sell such stock, a decree as to him, enjoining the sale or the offering for sale of such stock, and directing that he return and deliver the same in specified amounts to persons named, is justified by the allegations of the complaint.

Department 2. Appeal from the superior court of the city and county of San Francisco.

W. S. Goodfellow, for appellant.

W. M. Pierson, A. Compte, Jr., and Joseph Napthaly, for respondent. MYRICK, J. This appeal is by the defendant Coubrough alone. He was made a party to the suit, and was served with summons, but did not answer. The decree, as to him, enjoined the sale, or offering for sale, of 40,120 shares of certain stock, and directed that he return and deliver the said stock in specified amounts to persons named. Coubrough alone is interested in the question before us. We have only to see if the decree is beyond the allegations and prayer in the pleadings. The complaint alleged that Collycott, Adams, and Shoenbar were the owners of certain stock, and that for certain purposes, under agreement, they transferred the same to Blair, who, in violation. of the agreement, transferred the same to Coubrough, the latter being Blair's agent, and having full knowledge of the purposes for which it had been transferred to Blair; and that Coubrough threatened to sell the stock. We think sufficient appears in the complaint which, taken as confessed by Coubrough, justified the decree.

Judgment affirmed.

848

(2 Cal. Unrep. 473)

THE PACIFIC REPORTER.

SMITH V. DUNN. (No. 11,062.)

Filed May 8, 1885.

MANDAMUS-APPLICATION TO SUPERIOR COURT NECESSARY BEFORE APPLYING TO SUPREME COURT.

Where, on an application for writ of mandate before the supreme court, no reason is shown why the application was not made in the first instance to the superior court, the application will be denied.

Department 2. Application for mandamus.

J. S. Sprague, for petitioner.

BY THE COURT. No sufficient reason appearing why the application for the writ of mandate was not made in the first instance to the superior court, the application to this court is denied.