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because no notice had been given. The court granted the motion, against defendant's protest and exception. The defendant then asked leave to file the amended answer, presenting affidavits to show why the new defenses set up had not been presented in the original answer. The plaintiff objected on the ground that no notice of the application had been given. The motion was denied. Defendant then asked a postponement that he might prepare and file additional affidavits, which was also denied. The court then took a noon recess, and after recess the defendant read an additional affidavit, and renewed his motion for leave to refile the amended answer. The motion was denied. The trial then proceeded. The plaintiff gave evidence tending to show that its appropriation commenced in the latter part of 1870. The defendant offered to show that its predecessors' acts of appropriation commenced in July, 1870, and thus that defendant's rights antedated plaintiff's claim of right. This evidence was excluded. The defendant made a further effort during the trial to amend its answer so as to admit evidence of prior appropriation.

We are not prepared to say the court erred in excluding the evidence offered, for the reason that it was not within the issue; but we think the defendant should have been permitted to make its defense. As between the parties to this controversy, one party or the other has the better right. The allowance of amendments to pleadings is in general largely in the discretion of the trial court, but we think the record of the testimony given and offered and rejected shows that such discretion was not properly exercised in this case. In strictness, under the pleadings, it may be that plaintiff has the better right; but if the defendant can show the matters set forth in its proposed amended answer, it may be that the defendant has the better right. We do not hold that the defendant had the right, without notice and without leave, to file its answer of September 23d; but we think the circumstance that plaintiff's attorney received a copy without objection and without protest, negotiations for a settlement and compromise having been pending, might well have led defendant's attorneys to suppose the amended answer would be suffered to remain without objection. Not until after the trial had actually commenced (one witness having been examined) was this supposition dispelled; and at that time they found themselves engaged in a trial in which they could not stand even-handed with their opponents. The object of judicial proceedings is to discover all the facts of a case, and apply the law; and the theory of the Code is that the parties should each have reasonable opportunity to present his side of the case. We think the defendant has not had such opportunity in

this case.

Judgment and order reversed, and cause remanded, with directions to permit the defendant to file its amended answer.

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(2 Cal. Unrep. 542)

PEOPLE V. DEVON. (No. 20,093.)

Filed September 28, 1885


A conviction of the crime of sending a false telegram is erroneous, and cannot be sustained, if from the evidence it appears that the defendant had noʻ the slightest idea that he was deceiving the person to whom the message wa sent, and that the person to whom the message was sent was not deceived. In bank. Appeal from superior court, San Joaquin county. J. A. Louttit and S. D. Woods, for appellant.

E. C. Marshall, Atty. Gen., for respondent.

BY THE COURT. The defendant was convicted under section 474, Pen. Code, of the crime of willfully sending a false message by telegraph, with the intent to deceive the person named in the information. The testimony clearly shows, without conflict, (1) that the defendant had not the slightest idea he was deceiving the person to whom the message was sent; (2) that the person to whom the message was sent was not deceived.

Judgment and order reversed, and cause remanded to the superior court of San Joaquin county for a new trial.

MCKEE, J., expressed no opinion.

(67 Cal. 580)

CARIT V. CHARLES. (No. 11,122.)

Filed October 3, 1885.


The supreme court has no power, on appeal from an order made after final judgment, where no appeal is taken from the judgment, to order a stay of execution on the judgment not appealed from.

Department 2. Motion for stay of execution.

Cook & Cook, for petitioner.

D. H. Whittemore, for respondent.

THORNTON, J. This is a motion by Charles, above named, for a stay of execution upon a judgment recovered against him and another. After the recovery of the judgment, Charles made an application for a discharge from his debts under the insolvent laws of the state, which was granted. In the schedule filed in the proceedings in insolvency, the judgment above mentioned was placed. After the procurement of the discharge of Charles, an execution was issued on the judgment, which came into the hands of the sheriff. The petitioner, Charles, after the issuance of the execution mentioned above, filed, among the papers in the action above entitled, a certified copy of his discharge in insolvency, and subsequently, on the thirty-first of May, 1884, gave notice of a motion, for the sixth day of June, 1884, to set aside the execution before mentioned, to stay perpetually the issuance of any execution on said judgment against petitioner, Charles, and ordering

that the judgment as against the petitioner be marked satisfied and discharged. This motion was based on the discharge in insolvency of the petitioner. This motion was afterwards heard and denied. From this order an appeal was subsequently prosecuted to this court. It appears that the undertaking on appeal for $300 has been waived according to law. On the foregoing facts, the motion by Charles in this court for a stay of execution on the judgment aforesaid is based. We see no reason why this motion should be granted. The waiver of the undertaking is sufficient to stay any execution of the order appealed from, were any stay necessary. But it is manifestly insufficient to stay execution on the judgment referred to, even if any such stay could be granted on an appeal from an order made after the judgment. This court has no authority, under the statute, for ordering any such stay. The stay of execution on a judgment for the payment of money is only allowed on an appeal from the judgment, and giving the undertaking in double the amount, etc., as required by the statute. Code Civil Proc. § 942. Section 949, Code Civil Proc., only refers to a stay of execution upon the order or judgment appealed from in cases not provided for in sections 942, 943, 944, and 945. In this case there is no appeal from a judgment; the appeal is from an order made after final judgment denying Charles' motion for an order, on which no stay is requisite. We think it clear that this court has no power under the statute to grant the stay asked for. The court sees no reason why, if the order prayed for here were within its discretionary powers, that it should be granted. It certainly would not be granted without requiring the amplest security for the satisfaction of the judgment.

The application must be dismissed, and it is so ordered.

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Filed September 29, 1885.


Where a voluntary unincorporated society, whose business is the purchase and sale of stock, provides, in its constitution, that "there shall, at all times, exist a committee of three members or more, to be known as the Trust Fund Committee,' * * * whose duty it shall be to take charge of all moneys which may come into their hands, * ** to constitute a trust fund, to be used and applied by such committee in the following manner, viz.: Upon the death of a member, such trust fund committee shall pay, from the increase in their hands from investment of said moneys, to such person or persons, object or objects, as may have been designated in writing by such deceased member, the sum of ten thousand dollars, * * * such payment to be deemed an absolute donation to the person, or for the object to which the same is made or applied." As such association is not engaged in the business of life insurance, it will not be considered an association of persons transacting business under a common name, so as to allow an action against it by its common name (as provided for by Code Civil Proc. Cal. § 388) for the recovery of the sum above mentioned.

2. SAME-ESTATE OF DECEDENT-EXECUTORS' RIGHT TO FUND-WILL CONSTRUED. The constitution of such unincorporated society provided for the disposition of the donation provided for as above, in case the member failed to make a disposition of it. Decedent's will provided for certain legacies, and also contained the provision that, if the estate aggregate more than such amount disposed of, "I give and devise to D. the sum of five thousand dollars. The balance of my estate I desire paid over to my mother. I now estimate my estate at $80,000, including my seat in the Stock Exchange Board, and the insurance on my life by the said board." Held, that under such provisions, the donation provided for in the constitution of the board, as above, did not belong to the estate of the deceased member, and that his executors were not entitled to receive it as part of such estate; and that the will did not designate that the executors should be the beneficiaries of the trust fund.

Department 1. Appeal from superior court, city and county of San Francisco.

Estee & Boalt, for appellants.

Garber, Thornton & Bishop, for respondent.

MCKEE, J. The San Francisco Stock & Exchange Board is a vol untary unincorporated association, composed of 100 persons, who, under that name, have combined for the purpose of facilitating the purchase and sale of stocks by its members. For that purpose the originators of the association organized in the year 1862 by subscribing to a body of rules, regulations, and provisions, contained in articles of agreement in writing, which they adopted as the constitution and by-laws of the association. Article 22 of the constitution adopted by them contains the following provisions:


"There shall at all times exist in this board a committee composed of at least three members, or more at the discretion of the board, to be known as the Trust Fund Committee.' *** It shall be the duty of such committee to take charge of all moneys which may come into their hands by direction and vote of the board, and invest the same according to their best discretion and judgment; said moneys, and the increase of the same under such investments, to constitute a trust fund, to be used and applied by such committee in the following manner, viz.: Upon the death of a member of the board said trust fund committee shall pay, from the increase in their hands from investment of said moneys, to such person or persons, object or objects, as may have been designated in writing by such deceased member, the sum of ten thousand dollars in United States gold coin. In case there be no such written disposition made, then to the widow of such deceased member, the sum of ten thousand dollars in United States gold coin. In case there shall be no widow, and a child or children surviving such member, then to such child or children equally, share and share alike. If there shall be neither widow, child, or children surviving such deceased member entitled to receive said money, nor any disposition made of the same, as herein before provided, then there shall be no payment or provision made under this article. The payments herein provided for shall be deemed absolute donations to the persons or for the object to which the same are made or applied, free from all claim or control from any other source or persons. In case the increase of said moneys shall not have accumulated to a sum sufficient to meet the donations herein provided for as the same shall be needed, the deficit shall be made good at once by assessments pro rata upon the members of the board, and collected in like manner and under the same penalties as other dues."

Of the board, Frank Swift was a member from the twenty-first of August, 1875, until the sixth of January, 1877. As such he had fully complied with all the requirements of the constitution and bylaws, so that, in the event of his death, his surviving wife and children, or any person or object that he might designate according to the provisions of article 22, would be entitled to receive the donation provided by said article. And, while a member of the board, he died in the city and county of San Francisco, on the sixth of January, 1877, leaving no wife, or child, or children surviving him; but he left a will which was probated, and the plaintiffs, as the executors nominated by the will, were appointed and qualified as executors thereof. The will contained the following bequests:

"(1) I give and bequeath to my father, Chas. H. Swift, the sum of $12,500; to my mother, Adelia B. Swift, the sum of $12,500; to my sister Ellen A. Brown, $5,000; to my sister Maggie M. Mills, $5,000; to my sister Fannie E. Lohman, $5,000: to my niece Florence A. Durden, $10,000; to my niece Millie B. Durden, $5,000; to my niece Minnie F. Durden, now married to Z. T. Therrel, $5,000. These amounts, aggregating $60,000, I desire paid to said respective legatees within year after my decease.

"(2) Should my estate be worth more than sixty thousand dollars, ($60,000,) and I now estimate it at $80,000, including my seat in the San Francisco Stock Exchange Board and the insurance on my life by said board, I give and devise to D. L. McDonald, of San Francisco, the brother of my late dearly beloved wife, the sum of $5,000. * * *

"(5) The balance of my estate I desire paid over to my mother, Mrs. C. H. Swift, and by her distributed among the poor in any manner she may see proper."

After the executors had qualified and entered upon the discharge of their duties, they made a demand upon the Stock & Exchange Board for payment to them of the "donation" to which they claimed that they, as executors, were entitled. At the time they made this demand there was sufficient money in the trust fund for payment; but the defendant refused to pay, upon the ground that no disposition of the "donation" had been made as required by its constitution and by-laws. And seasonably, after the demand and refusal, the executors commenced the action in hand to recover against the defendant a money judgment for said sum of $10,000.

The action is founded upon the existence of a contractual relation between the San Francisco Stock & Exchange Board and its members for the payment of $10,000 in case of the death of a member, for which, it is claimed, his executor or administrator may maintain an action upon section 388, Code Civil Proc. Section 388 reads thus:

"When two or more persons, associated in any business, transact such business under a common name, whether it comprise the names of such persons or not, the association may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants, and had been sued upon thei joint liability."

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