know; and (2) is it certain and indisputable. If it is, it is a proper case for dispensing with evidence, for its production cannot add or aid. On the other hand, we may well repeat, if there is any reasonable question whatever as to either point, proof should be required. Only so can the danger involved in dispensing with proof be avoided. [9] Even if the matter be one of judicial cognizance, there is still no error or impropriety in requiring evidence.

[10] Applying this test to the facts of the case the matter is not in doubt. The character of Mission Street is as well known to San Franciscans as the character of Spring Street to residents of Los Angeles, or of State Street to residents of Chicago, or of Forty-second Street to residents of New York, or of F Street to residents of Washington. It is a matter of their every-day common information and experience, and one about which there can be no dispute.

The conclusion follows that the charge of the trial court that Mission Street between Twentieth and Twenty-second Streets was a business district was not error. The judgment

is therefore affirmed.

Shaw, J., Lennon, J., Lawlor, J., Melvin, J., and Wilbur, J., concurred.

ANGELLOTTI, C. J., Concurring.-I concur in the judgment, and also in the opinion except upon the question of judicial notice, a determination of which question appears to be considered by the majority opinion as essential to a conclusion that the trial court did not err in instructing the jury that Mission Street at Twenty-first Street was a "business district" within the meaning of the provision of the Motor Vehicle Act limiting speed in such a district to not exceeding fifteen miles an hour. I am not satisfied that the opinion does not carry the doctrine of judicial notice to an unwarranted extent. It seems to me, after a careful consideration of the record, that the instruction referred to may fairly be upheld upon the theory that there was no question in the trial. court as to the place of the accident being within such a district and that this was something practically conceded on all hands. Certainly every scrap of evidence tending to throw any light whatever on the matter so tended to show, and the

trial court apparently took the matter as granted. No complaint whatever was made as to these instructions until the closing brief of appellants was filed in this court. I do not think they should now be held erroneous.

[S. F. No. 8250. In Bank.-May 9, 1919.]

STANFORD HOTEL COMPANY (a Corporation), Respondent, v. M. SCHWIND COMPANY (a Corporation), Appellant.

[1] ATTACHMENT ACTION EX DELICTO.-An attachment will not lie in an action ex delicto for fraud.

[2] ID.-LEGAL OR EQUITABLE NATURE OF ACTION IMMATERIAL.-Under subdivision 1 of section 537 of the Code of Civil Procedure, which provides for the issuance of an attachment in an action upon contract, express or implied, for the direct payment of money, it is immaterial whether the action be regarded as strictly legal or strictly equitable or partly legal and partly equitable, if the purpose of the action is the recovery on such a contract.

[3] ID.-ACTION FOR RENT-FRAUDULENT TRANSFER OF ASSETS BY CORPORATION LESSEE-NATURE OF ACTION-RIGHT TO ATTACHMENT.— An action to recover rent under a lease from a corporation to whom the original corporation lessee had assigned all of its assets except the lease, is not converted from an action on an express contract for the direct payment of money into an action ex delicto for fraud and the plaintiff deprived of the right to a writ of attachment under subdivision 1 of section 537 of the Code of Civil Procedure, by reason of the allegation of facts showing not only that the transferee took the assets as part of a scheme to defraud creditors, but that it was in fact the original debtor masquerading under a

different name.

[4] ID. PRAYER OF COMPLAINT OMISSION TO ASK FOR MONEY JUDGMENT-CAUSE OF ACTION NOT CHANGED.-In such action, the omis sion to ask in the prayer of the complaint for a money judgment, did not have the effect of making the action one ex delicto for fraud, where it was asked in the prayer that it be decreed that defendants hold the transferred property charged with the payment of plaintiff's claim, with interest and costs, and that the property be sold in payment thereof.

[5] CORPORATIONS-REORGANIZATION-LIABILITY FOR DEBTS OF FORMER CORPORATION. Where a corporation reorganizes under a new name

but with practically the same stockholders and directors, and continues to carry on the same business, a court of equity will regard the new corporation as a continuation of the former corporation, and will hold it liable for the debts of the former corporation. [6] ACTION FOR RENT-PLEADING-PARTIES-FORMER CORPORATION UNNECESSARY DEFENDANT.-In such action it is unnecessary to make the former corporation a party defendant.

[7] ATTACHMENT-NONResident DEFENDANT-AFFIDAVIT AVERMENT OF NONRESIDENCE-CONSTRUCTION OF CODE.-It is not necessary within the meaning of sections 537 and 538 of the Code of Civil Procedure that in every case of a nonresident defendant, the fact of nonresidence must be averred in the affidavit on attachment, since under subdivision 1 of the former section, it is the nature of the cause of action against such a defendant rather than the fact of his residence that controls, and it is only in those cases wherein the cause of action is one contemplated by either subdivision 2 or 3 that it is necessary to aver that the defendant is a nonresident.

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to dissolve an attachment. E. P. Shortall, Judge. Affirmed.

The facts are stated in the opinion of the court.

G. B. Benham, Edward Lande and Frank A. Duryea for Appellant.

W. W. Sanderson for Respondent.

LAWLOR, J.-This is an appeal from an order denying a motion to dissolve an attachment.

The Stanford Hotel Company is the lessor in a certain lease upon which the Maryland Dairy Lunch Company, a California corporation and the original debtor, is obligated in the sum of $3,617.60, as unpaid rent, from March 1, 1916, to October, 1916, the monthly rental of the demised premises being $452.25. The Lunch Company, prior to January 26, 1916, carried on an extensive restaurant business in San Francisco in four locations, one of which was the premises leased from the plaintiff at 250 Kearny Street. One M. Schwind was the president and a director of the Lunch Company and the owner of nine-tenths of the capital stock thereof. From the complaint it appears that the Lunch Company was solvent and meeting its ordinary and current liabilities, when, some

time prior to January 26, 1916, the said Schwind and the other directors of the Lunch Company contrived a fraudulent scheme to evade the payment of the rent due to the plaintiff and to escape further liability upon its said lease. They organized a Nevada corporation, the M. Schwind Company, the defendant in the present action, with a capital stock of one thousand shares and a perpetual charter permitting the carrying on of business elsewhere than in the state of Nevada, and also providing an exemption of stockholders' liability; 996 shares of said company were issued to M. Schwind, who became a director thereof, the other four directors holding but one share each. On January 25, 1916, this corporation duly complied with the laws of California and filed its articles of incorporation. Meanwhile the Maryland Dairy Lunch Company had deliberately refused and neglected to pay its license tax and franchise tax to the state of California, thereby forfeiting its charter on March 4, 1916. On January 26, 1916, the Lunch Company held a meeting of its board of directors and passed a resolution selling and transferring to the defendant corporation its three places of business with the leasehold rights of occupancy in the same, and in all its property. No mention of the business carried on at 250 Kearny Street was made in this bill of sale, nor was the lease included therein. The bill of sale was not acknowledged and recorded until after the dissolution of the Lunch Company, namely, on March 24, 1916. The M. Schwind Company continued ostensibly to carry on business at 250 Kearny Street after the bill of sale was made and delivered but before it was acknowledged and recorded, that is, until March 14, 1916, when the premises were vacated and the lease abandoned by the Lunch Company. It is further alleged that the purpose and effect of this transaction was to eliminate the Lunch Company as a corporation, and as a result there was left no property whatever to come into the hands of its directors as trustees for its creditors; and that the transfer to the M. Schwind Company was entirely without consideration, the purpose of the deal being the continuation of the business of the Lunch Company under a new corporation which was in substance and effect but a continuation of the old, and owned substantially by the same stockholders, and carrying on its business without interruption or delay.

The complaint was filed on October 23, 1916. The prayer was for a temporary injunction restraining the defendant corporation until after a full hearing of this cause from selling or otherwise disposing of any of the property involved in the bill of sale; that the said sale be declared void and of no effect; that it be adjudged and decreed that the defendant holds the property charged with the payment of the plaintiff's claim for $3,617.60, with interest and costs; that the property be sold for the plaintiff's claim and costs, and for other further and proper relief. On the same day Isaac Harris, president of the Stanford Hotel Company, made affidavit for the attachment of the said property. The affidavit conforms strictly to the requirements of subdivision 1 of sections 537 and 538 of the Code of Civil Procedure. Upon the filing of the affidavit and the undertaking the writ was issued. Whereupon the defendant, on October 28, 1916, without answering the complaint, moved to dissolve the attachment upon the grounds, briefly stated: (1) That the cause of action is not one in which a writ of attachment could issue; (2) that the writ was improperly issued; (3) that the writ was irregularly issued; (4) that the affidavit upon which the writ was issued is false in the statement therein that the defendant is indebted to the plaintiff in the sum of $3,617.60 over and above all legal setoffs or counterclaims upon an express contract for the direct payment of money, to wit, to pay rent under a lease of certain real property; (5) that the affidavit is false in the statement that the contract was made and is payable in this state. The only evidence taken on the hearing of the motion was that of Isaac Harris, the president of the plaintiff corporation. The motion to dissolve was denied, whereupon the defendant appealed.

1. Appellant relies chiefly on the contention that this is not an action in which an attachment may issue, in that it appears upon the face of the complaint that the suit is not one upon contract, but that it is an action ex delicto for fraud. [1] Hallidie v. Enginger, 175 Cal. 505, [166 Pac. 1], cited by appellant in support of this contention, correctly states the law of this state that an attachment will not lie in an action ex delicto for fraud. The action in that case was held to be one of that character. But nothing declared in that case, nor in the cases therein cited, can be taken as authority supporting the contention of appellant that this is such an action.