We advise that the court below be directed to modify the judgment appealed from by deducting therefrom the sum of $342.75, and that it be affirmed for the remaining sum of $857.25, and the costs therein contained.

FOOTE, C., and VANCLIEF, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the court below is directed to modify the judg ment by deducting therefrom the sum of $342.75, and the judgment as to the remaining sum of $857.75, and costs therein contained, is affirmed.

[No. 13092. In Bank. July 2, 1889.]

WILLIAM GREEN, RESPONDENT, v. WILLIAM MCMANN, RESPONDENT, AND G. DE LUCCA ET AL.,

APPELLANTS.

APPEAL-DISMISSAL-DEFECTIVE TRANSCRIPT.-When the transcript on appeal contains a large number of written erasures, alterations, and marginal corrections, and is not printed on such paper and in such form as the rules require, and is not certified as required by law (the certificate merely stating that the transcript is correct, without stating in terms that the papers are correct copies of the originals on file, and without stating that the erasures, interlineations, and alterations were made before the certificate was given), and if the copy served did not contain most of the corrections made in the original, the appeal will be dismissed for want of a sufficient certificate to the transcript, and for want of service of a substantially correct copy on the respondent.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion of the court.

Motion to dismiss appeal.

A. D. Splivalo, for Appellants.

Mitchell & McPike, for Respondent.

LXXIX. CAL.-36

MCFARLAND, J.-Respondent moves to dismiss the appeal herein on seven different grounds, each of which is entitled to consideration. We will notice a few of them.

1. The first is, that the transcript is not a printed transcript within the meaning of rule 2 of this court. The facts with reference to this point are, that although the original transcript is mainly in print, it contains a large number of erasures and twenty-three corrections and alterations in writing, some between the printed lines, and others on the margin; and, in addition, there are certain capital letters scattered along the margin which, on their face, are of uncertain meaning. Of course, it would be allowable to thus correct one or two typographical errors in a printed transcript, but the condition in this respect of the transcript in the case at bar is beyond the reach of clemency.

2. The second ground is, that the transcript—not considering the erasures and written matter is not printed on paper of the size required by the rule, and has no blank fly-sheet cover, etc., as the rules require. The facts on this point are as stated by respondent.

3. The third ground is, that the transcript is not certified as required by law. The facts on this point are: 1. That the certificate merely states that the "transcript is correct," and does not state in terms that the papers are correct copies of the originals on file; and 2. That is does not state that the erasures, interlineations, and alterations were made before the certificate was given.

4. The fourth ground is, that "the transcript contains so many errors and corrections as to have become unintelligible." It is difficult to say whether an inspection of the transcript establishes this allegation or not; it certainly tends strongly in that direction.

5. The fifth ground is, that "no copy of the transcript has been served upon this respondent, or his attorneys."

The facts on this point are, that the copy served contained only four of the corrections on the original transcript,-one of them being a paster.

The other grounds go rather to the merits of the appeal, and we do not care to discuss them here.

We have noticed the grounds of the motion in detail, not because each of them in itself would furnish sufficient reason for dismissing the appeal, but to show the general situation of the case, as bearing on the discre tion (if there be room for discretion) which this court should exercise in the premises. We think that the motion to dismiss should be granted upon at least the third and fifth grounds stated. Waiving the question whether or not a general statement that the "transcript is correct" is sufficient in a clerk's certificate, it is clear that in this instance the certificate should have shown that the numerous erasures, interlineations, marginal writings, etc., were in the transcript when the certificate was given. Any other rule would subject a record to most dangerous alterations and mutilations. And again, no matter under what circumstances the changes were made, it is apparent that no substantially correct copy of the transcript was served on respondent. For these reasons the motion is granted.

Appeal dismissed.

SHARPSTEIN, J., WORKS, J., PATERSON, J., and BEATTY, C. J., concurred.

THORNTON, J.-I concur in the judgment on the ground that no copy of the transcript was served.

Rehearing denied.

[No. 13148. In Bank.-July 2, 1889.]

EDWARD T. HUBBACK, APPELLANT, v.
ROSS ET AL., RESPONDENTS.

ANN S.
ANN

APPEAL-DISMISSAL-FAILURE TO FILE TRANSCRIPT.-When it appears that the true reason for failure to file the transcript within the time required by the rules of the supreme court, and for procuring extensions of time therefor, is, that the appellant is a poor man, and unable to procure the means to pay for the transcript within such time, or to arrange in any other way to have the same printed and filed, though endeavoring to do so, a motion by respondent to dismiss the appeal upon the ground that the affidavits of appellant's counsel, upon procuring the extensions of time, did not disclose the true reason for such delay will be -...ed.

APPEAL from a judgment of the Superior Court of Marin County.

Motion to dismiss appeal. The facts are stated in the opinion of the court.

Hepburn Wilkins, and M. G. Cobb, for Appellant.

William Barber, for Respondents.

The COURT.-There is a motion to dismiss this appeal. The appellant, not being able to get his transcript on file in time, applied for an extension of time, and this was renewed until three extensions were granted. The respondents move to dismiss on the ground that no sufficient reason existed for the failure to file the transcript in time, and that the court was misled and induced to make the several orders extending time by the affidavits of counsel for the appellant, which, it is claimed, did not set out the true reason for the delay.

It is quite apparent to us that counsel for appellant did not deal frankly with the court, and his course in the matter is subject to criticism. Therefore, if his interests alone were to be considered, we would dismiss the appeal without hesitation. But the true reason of the delay, as now developed, was, that the appellant is a poor man and was unable in time to procure the means

with which to get his transcript printed, or arrange to have the same printed, in any other way, although he endeavored to do so. The expenses of taking appeals under our practice are extremely burdensome to litigants of small means, and no doubt frequently result in injustice. For that reason, we do not feel that we should deprive the appellant of the benefit of his appeal under the circumstances of this case. The courts should be open to all litigants alike, whether rich or poor, and every facility should be afforded them to be heard.

But we take this occasion, to express our unqualified disapproval of the growing habit on the part of some attorneys practicing in this court of neglecting to prepare their transcripts and briefs in time to be printed, and then burdening this court with applications for extensions. These applications are of almost daily occurrence, and perhaps in ninety-nine out of every hundred of these cases, if the real reason for the failure to file in time were stated, it would be the neglect of the attorney. Usually it is that the printer has failed to print in time; but whether the manuscript was furnished him in time or not is left to be conjectured. If counsel will do their duty in this respect, this court will have more time to devote to other more urgent and important matters. Motion denied.

[No. 12505. In Bank.-July 3, 1889.]

J. N. TURNER, ADMINISTRATOR, ETC., OF ROBERT TURNER, DECEASED, APPELLANT, v. E. E. TURNER ET AL., RESPONDENTS.

PROMISSORY NOTE-NON-PAYMENT-POSSESSION

OF NOTE-PRESUMPTION-BURDEN OF PROOF.-Possession of a promissory note by the payee raises a presumption of non-payment. And possession by the maker raises a presumption of payment. Hence the allegation of non-payment be denied, it is incumbent upon the plaintiff to prove non-payment, at least by producing the note or accounting for its non-production.