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conduct and incapacity. As we read the contract referred to, we do not understand from it that the misconduct and incapacity of Taubles was agreed to be paid for at the rate of $200 per month. The fair construction to be given that instrument is that the parties were entering upon a new and untried scheme,-an experiment in the sale of a patent "Elixir" for the curing of skin diseases, etc.; that it was desirable to have an agent to secure the sale of the "Elixir;" that, as the venture might or might not be successful, this agent desired to, and did, by a certain clause in the contract, secure to himself pay at the rate of $200 per month while engaged in this employment, intending and actually providing that he should receive the money even if the defendants discharged him for misconduct or incapacity. The parties seem to have contemplated that perhaps they might not, upon more intimate association, desire to continue the contract in force, and it was natural, and we cannot see how it was improper, that Taubles should not desire to enter upon the duties appointed to him, unless he could be certain of reasonable compensation for the time and talents, such as the last might be, that he would devote to the enterprise. The defendants consented to this arrangement, provided they could reserve, which they did, the right to themselves discharge Taubles, whenever they desired, for misconduct or incapacity. We do not understand this contract to have placed a premium upon misconduct or incapacity, but to have simply secured to the plaintiff's assignor compensation for his time and energies while employed by the defendants, even if they should discharge him from their service for dereliction of duty, or inability to carry out their wishes and plans. We are therefore of opinion that so much of the judgment that imposes costs and disbursements in the court below upon the defendants should be stricken out, and that in all other respects the judgment should be affirmed.

We concur: BELCHER, C. C.; SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion, so. much of the judgment as imposes costs and disbursements in the court below upon defendants is ordered stricken out, and in all other respects the judgment is affirmed.


Filed November 25, 1885.

APPLICATION FOR WRIT OF REVIEW held without merit, and dismissed.

In bank. Application for writ of review.

Geo. W. Tyler, for petitioner.

BY THE COURT. Application for writ of review. We find no merit in the application, and it must be denied and dismissed. So ordered.

(2 Cal. Unrep. 561)

DAVIS v. MCGREW and another. (No. 9,126.)

Filed November 23, 1885.

LANDLORD AND TENANT-LEASE-CONSPIRACY IN OBTAINING-CANCELLATION FOR. Where a complaint averred that defendants had conspired to cheat and defraud the plaintiff by inducing him to lease of one of them certain lands, and that they had carried out such conspiracy by fraudulent representations to plaintiff to his injury, and that he had suffered damage thereby, the complaint was held to state a good cause of action entitling him to a cancellation of the lease.

Department 2. Appeal from superior court, county of Contra


A. H. Griffith, for appellant.

A. A. Moore, George W. Reed, and E. J. Emmons, for respondents. MORRISON, C. J. The foundation of this action is an alleged conspiracy between the defendants to cheat and defraud the plaintiff. In support of his action he states numerous facts and circumstances tending to establish such conspiracy, and a final consummation thereof by the defendants. The plaintiff avers he was in possession exclusively of a tract of land forming part of the San Pablo rancho; that he was cultivating the same, and raising a crop thereon of the value of $1,000; that a conspiracy was formed by the defendants to obtain from him (the plaintiff) the tract of land so held and cultivated by him, and by reason of artful devices and deceitful practices on the part of the defendants, acting in concert, and which are set forth in the complaint, the plaintiff was prevailed upon and induced to accept a lease of the land so held and cultivated by him, from the defendant McGrew; that he did attorn to said McGrew, and in the lease agreed to pay McGrew a certain rental for said land; that McGrew had no title to the land, but made it appear to the plaintiff that by accepting a lease therefor he would be secured in his rights and avoid further trouble, and perhaps ultimate loss.

The defendant Gift acted as the pretended friend of the plaintiff, and in the disguise of a pacific mediator between the parties, making various statements respecting the rights and prospects of the other defendant in the case, and fraudulently deceiving the plaintiff, and inducing him to believe his interests would be subserved by the acceptance of a lease from and by attorning to the defendant McGrew; that plaintiff is an ignorant foreigner, and relying upon such representations, and fully believing that the defendant Gift was acting as his friend in the matter, and that it was to his (plaintiff's) interest to accede to the terms proposed, he did accept a lease from and attorn to the defendant McGrew.

The complaint goes into much detail in stating the alleged fraudulent acts of the parties defendant, from which it appears that there was a fraudulent conspiracy to cheat and defraud the plaintiff, which culminated in the acceptance by him of a lease from McGrew, who had no title or color of title to the land in question, and the promises

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of plaintiff to pay him rent therefor. To this complaint defendants demurred, and the court sustained the demurrer. Final judgment was entered up thereupon, and plaintiff takes this appeal.

We can hardly understand upon what ground the court below acted in sustaining the demurrer to the complaint. It is plainly charged, with particularity of detail, that the defendants formed a conspiracy to cheat and defraud the plaintiff; that they carried out such conspiracy by false and fraudulent representations, which imposed upon the plaintiff; and that plaintiff has been damaged thereby. He now asks that the lease so fraudulently obtained from him may be brought into court, and declared null and void; and, further, that he may have damages for the fraud practiced upon him. In our judgment the complaint sets forth a good cause of action against the defendants, and one which entitles him to relief in a court of equity.

It is claimed on the part of the defendants that this case comes within the rule laid down in Hawkins v. Hawkins, 50 Cal. 558. In our opinion the rule laid down in that case does not apply to this, as here the circumstances are different. In the complaint some matter occurs which the learned judge below regarded as disrespectful to himself, and therefore struck the same out. The objectionable matter was a part of the plaintiff's case, and was not disrespectful. It should, therefore, have been allowed to remain in the complaint. Judgment and order reversed.

We concur: MYRICK, J.; THORNTON, J.

LEWIS, Ex'x, etc., v. ADAMS and others. (No. 9,979.)1

Filed November 23, 1885.


Under the California statute the foreign executrix cannot maintain an action in its courts, either as such executrix or individually, for a claim due the testator, without having first obtained ancillary letters testamentary or of administration. Code Civil Proc. § 1913.

Under the California statute the local administration of the estate of a de-
ceased non-resident may be treated as ancillary, and the surplus, after pay-
ment of the local debts and expenses, may, by order of the court, be delivered
to the executor or administrator of the domicile, and to that end the latter
may apply to the California court for such an order; but beyond such right
the executor or administrator of the domicile can have no authority over the
local assets.

In bank. Appeal from superior court, county of Los Angeles.
Victor, Montgomery & Smith and Brown & Hutton, for appellant.
Thorn & Stevens, for respondents.

MYRICK, J. Action on a judgment. The complaint averred that on the fifteenth of March, 1877, in a district court in the state of Texas, in an action pending between the plaintiff, as executrix, and the defendants, it was adjudged that the defendants pay to plaintiff,

1 Reversed in banc. See 11 Pac. 833, 70 Cal. 403.

as executrix, a sum named, and on that day judgment was accordingly duly rendered. The plaintiff's testator died in 1872, the will was admitted to probate, and in the same year letters testamentary were issued to plaintiff and plaintiff duly qualified; wherefore, the plaintiff, as executrix, prayed judgment against defendant for the amount of the judgment, interest, and costs. The complaint was filed March 17, 1882. The complaint was demurred to by defendant Adams on the grounds, (1) the plaintiff had no legal capacity to sue, being executrix only by appointment in Texas, and having no authority beyond the jurisdiction of that state; (2) the cause of action is barred by section 336, Code Civil Proc.; and (3) the facts stated are not sufficient to constitute a cause of action. The demurrer was overruled, and the cause was tried on the issues raised by the answer. The court found that "all the allegations of the plaintiff's complaint are true and correct," and rendered judgment against Adams for the amount prayed for. Subsequently, on motion of defendant Adams, a new trial was granted, but upon what ground was not stated. It is therefore to be seen if the order can be sustained on any ground. When this case was decided by this court in department, the court used the following language:

"(1) The plaintiff, as a foreign executrix, could not maintain an action in the courts of this state without first obtaining ancillary letters of administration or testamentary. Section 1913, Code Civil Proc., declares,*** that the authority of *** an executor or administrator does not extend beyond the jurisdiction of the government under which he was invested with authority.' The official character of the plaintiff was derived from the letters granted to her in the state of Texas; and, as it was confined to the limits of the state, it was not recognizable in California. Therefore she could not, in that capacity, maintain an action here. If it became necessary for her to sue in this state to recover a debt due to the estate which she was administering in Texas, her first step was to obtain letters of administration from the proper court in this state, by subjecting herself to the regulations prescribed by the laws of the state; otherwise her official character cannot be recognized by the ourts, and she has no capacity to sue in the courts of the state." 7 Pac. Rep. 779.

We are satisfied with the views thus expressed. In the petition for hearing in bank the plaintiff said:

"We conceded that the plaintiff, as executrix, under her letters issued in Texas, could not maintain an action here on a claim due to the testator, Nat. Lewis, but contended that she, having there in Texas recovered a judgment in her individual capacity, the court should and would treat all of the allegations as to the death of Lewis and the issuance of letters as surplusage, and should give us judgment in favor of plaintiff individually."

In reference to this, we say, the plaintiff sued as executrix, and not in her individual capacity; as executrix she prayed judgment. · But if she had sued in her individual capacity, section 1913 would have been an answer. She had not reduced the property sued for, viz.,. the amount owing to her testator, to possession, but was endeavoring to make use of the courts of this state for that purpose.

We think the statutes of this state in this regard have furnished a harmonious system. If there be assets of the estate of a testator in this state administration may be had, (the administrator having power to reduce the same to possession by suit or otherwise,) and if the testator was a non-resident, the administration here may be treated as ancillary, and after the payment of the local debts and expenses the surplus may, by order of the court, be delivered to the executor or administrator of the domicile, and to that end the executor or administrator of the domicile may doubtless apply to the court in this state for such order; but beyond that no authority over the assets here seems to have been given to the executor or administrator of the domicile.

As a new trial was granted, it is not necessary to consider the sufficiency of the findings. The order is affirmed.

We concur: Ross, J.; MCKEE, J.; MORRISON, C. J.

(68 Cal. 43)

LEE DOON and others v. TESH. (No. 8,489.)

Filed November 24, 1885.

1. MINING CLAIM-ACTION FOR POSSESSION OF AVERMENT OF CITIZENSHIP. In an action to determine the right of possession to a mining claim, preliminary to the right to purchase from the United States, brought under section 2326 of the United States Revised Statutes, the complaint must show in the plaintiffs qualifications necessary to entitle them to purchase, among which would be included an allegation that the plaintiffs are citizens of the United States, or have declared their intention to become such.


Persons who are not citizens of the United States, or have not declared their intention to become such, cannot acquire any vested right to the possession of a mining claim on United States public lands.

Commissioners' decision.

In bank. Appeal from superior court, county of Siskiyou.
H. B. Gillis and H. B. Warren, for appellant.

Calvin Edgarton, for respondent.

SEARLS, C. After an examination of the record in this cause, and of the former decision rendered therein by department 2, (6 Pac. Rep. 97,) we are of opinion the judgment rendered is founded upon a correct exposition of the law applicable thereto. Defendants had applied through the United States land-office for a patent to the Clark & Co. placer mine. Plaintiffs, who claim to own the Greenhorn Hydraulic placer mine, filed a protest and adverse claim in the landoffice, claiming 24 30-100 acres, parcel of the land applied to be patented, and thereupon the register and receiver stayed proceedings in the land-office, and thereafter suit was brought as provided by section 2326, Revised Statutes of the United States, to determine the question of the right of possession to said disputed mining ground.

This action was brought pursuant to such order, and the complaint avers that William McConnell, one of the plaintiffs, is a citi

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