wards executed by Randall to Davis. If, as we have above held, they were not, then the judgment was clearly erroneous. We cannot make findings for the court below; but it is apparent that if, at another trial, no different state of facts appears, there should be a decree foreclosing the mortgages as liens prior and superior to respondent's asserted homestead, and not subject or subordinate to said homestead. And for these reasons the judgment and order denying a new trial in the said partition suit (appeal 177), must also be reversed. The judgment and order denying a new trial are reversed.

We concur: TEMPLE, J.; HENSHAW, J.

(117 Cal. 10)

PEOPLE v. CADY. (Cr. Sac. 212.) (Supreme Court of California. May 11, 1897.)

HOMICIDE-DEPOSITIONS-BRIEFS.

The introduction of the testimony given at the preliminary examination by an absent witness for the prosecution in a homicide case is not inhibited by Const. art. 1, § 13, providing for the taking in defendant's presence of depositions in criminal cases other than of homicide, where there is reason to believe that the witness will not attend at the trial.

In bank. Appeal from superior court, Shasta county; Edward Sweeny, Judge.

man

George D. Cady was convicted of slaughter. A motion for a new trial was denied, and he appeals. Affirmed.

Ination of the record clearly shows sufficient evidence to justify the jury in finding the appellant guilty of manslaughter. We do not deem it necessary to state the evidence here in detail.

3. Under the head of "Assignment of Errors," the appellant states 17 alleged errors of the court below in ruling upon the admissibilIty of evidence. These assignments of errors are little more than mere concise statements of conclusions that the court did err in its rulings, with but little, if anything, in the way of argument to show the correctness of the conclusions arrived at by appellant as to such rulings. All these "assignments" are answered quite fully in the brief of the attorney general; and in appellant's reply brief he merely says that "in reference to the seventeen assignments of error shortly discussed by the state, with the exception hereinafter mentioned, there is neither time nor opportunity for a reply, even if a reply be needed; but they are, and each of them is, implicitly relied upon." "The exception hereinafter mentioned" was the objection to the testimony of the witness Champion hereinbefore alluded to, which objection was also put in a concise way in said "assignment of errors" in addition to being elaborately argued in another part of the brief. Under these circumstances, we do not feel called upon to notice the other 16 alleged errors in detail. It is sufficient to say that we have examined the rulings of the court so excepted to, and find in them no prejudicial error. The judgment and order ap

Clay W. Taylor and J. Chadbourne (H. E. pealed from are affirmed.
Highton, of counsel), for appellant. W. F.
Fitzgerald, Atty. Gen., W. H. Anderson, Dep.
Atty. Gen., M. P. Rose, and A. M. McCoy, for
the People.

MCFARLAND, J. The defendant was charged in the information with the crime of murder, and was convicted of manslaughter. He appeals from the judgment and order denying his motion for a new trial.

1. The main point made by appellant for a reversal is that the court erred in permitting the testimony of one Champion, taken at the preliminary examination, to be read in evidence by the prosecution; the contention being that such testimony cannot, under the constitution, be admitted under any circumstances. But this cause had been submitted upon oral argument and written briefs some time before the decision by this court of the case of People v. Slerp, 48 Pac. 88, and in the latter case the arguments presented upon this point in the case at bar were fully considered. In the Sierp Case the point as to the admissibility of testimony given at a preliminary examination was thoroughly considered, and determined adversely to the contention of the appellant in the present case. We adhere to the rule there declared. See People v. Sierp, supra.

2. Appellant contends that the verdict was unwarranted by the evidence, but an exam

We concur: HARRISON, J.; HENSHAW, J.; VAN FLEET, J.; TEMPLE, J.; GAROUTTE, J.

(117 Cal. 19) BOEHMER v. BIG ROCK CREEK IRR. DIST. et al. (L. A. 187.)1 (Supreme Court of California. May 14, 1897.) QUIETING TITLE-BURDEN OF PROOF-NEW TRIAL -JOINT MOTION-RIPARIAN RIGHTS-IRRIGA

TION DISTRICT-LIABILITY TO SUIT.

1. In an action to quiet title, where plaintiff's title is denied, and it is stipulated that the land was within a government grant in aid of a railroad, under which plaintiff claims, and that before plaintiff purchased a decree was entered, at the suit of the United States canceling the patent, but saving the rights of certain classes, plaintiff must show that he is within one of the exceptions.

2. Under Code Civ. Proc. § 475, providing that the court must disregard any error or defect which does not affect the substantial rights of the parties, a new trial may be granted to one of several parties who join in the motion, though as to others it must be overruled.

3. Where two quarter sections were granted, each by a separate patent, mere contiguity cannot extend to one a riparian right which is appurtenant to the other, though both have come into the possession of the same person.

4. An irrigation district, though a public corporation, may be sued, under the Wright act (St. 1887, p. 35. § 14), providing that in all courts, actions. suits, and proceedings, its board

1 Rehearing denied.

defendants, having disclaimed all interest in the controversy, were not affected or injured by the findings or judgment; in other words, that "a motion for a new trial is indivisible, and when made jointly by two or more parties, if it cannot be allowed as to all, it must be overruled as to all." Appellant cites six or seven cases from Nebraska, about the same number from Indiana, one from Minnesota, and one from Wyoming, which sustain his said proposition. The early Indiana cases -which seem to have been the pioneers of this line of decisions-adopted it in analogy to the ruling that a joint demurrer will be overruled unless it is well taken as to all the demurrants jointly; and Asevado v. Orr, 100 Cal. 293, 34 Pac. 777, and Rogers v. Schulenburg, 111 Cal. 281, 43 Pac. 899, are cited to the point that a joint demurrer by all the defendants is properly overruled if the complaint is good against either of them. The question here presented has not before been considered or decided by this court so far as I have been able to find. Whether the cases cited by appellant were rightly decided under the practice prevailing in those states, we need not consider. Obviously it is one of those questions which should be determined in harmony with the principles governing our own practice. It is true that the individual defendants, having disclaimed all personal interest in the controversy, were not injured by the findings or judgment, and were not "aggrieved" thereby. But, the order granting a new trial having been rightly made as to one of the defendants,-the irrigation district, the plaintiff was not injured by the joinder of the individual defendants in the motion, nor by the granting of the motion as to all; and he should not be permitted to profit by findings which do not accord with the facts which he has stipulated to be true, if it can be avoided. Section 475, Code Civ. Proc., provides: "The court must in every stage of an action disregard any error or defect in pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect." In the face of this provision, appellant's contention cannot be sustained.

this intention was defeated by the third finding, and, the judgment having been entered in accordance therewith, the result is that all of plaintiff's tracts of land described in the complaint are adjudged to be riparian, except two quarter sections constituting the N. 1⁄2 of section 2 in township 4, range 10 W., and there is nothing in the findings to show that these parcels are differently situated. If appellant's contention as stated in his brief were sound, it would follow that, if A. owned a tract of land upon a stream, his riparian rights which he acquired by the purchase of that tract would extend to all lands he might subsequently acquire, no matter from whom, nor under what circumstances his vendor obtained title, nor how distant from the stream, provided he owned all the land between the stream and the land so purchased. The facts stipulated are, however, that all the lands described in the complaint, except the N. E. 4 of section 7, township 4 N., range 9 W., and two quarter sections in range 10, were patented by the United States to William S. Chapman on June 1, 1870, by 14 separate patents based on 14 different entries, and that plaintiff is the owner of each of these 14 quarter sections "by mesne conveyances under said William S. Chapman." With the exception of lands within confirmed Mexican grants, the Virginia military reservation and perhaps some other reservations, granted in early days, it has been the policy of the general government to subdivide the public domain into small tracts, and to dispose of them as such, and, for the purpose of carrying out such policy, it has restricted the right of entry under the homestead and pre-emption laws to 160 acres. Even in its grants to railroads, by granting alternate sections, it prevented the acquisition from the government of large bodies of contiguous lands, and a similar policy is pursued by the state in disposing of state lands. In Lux v. Haggin, 69 Cal. 255. 10 Pac. 674, at pages 424, 425, 69 Cal., and page 773, 10 Pac., it was said: "It is to be borne in mind that if the court had found a water course to, through, or past any one of the tracts described in the complaint, only such of the certificates of purchase would have been admissible as showed the purchase of tracts so found by the court to be touched or traversed by the water course. * If we shall say, in general terms, that the certificates of purchase ought to have been admitted, this must be understood in a limited sense, and to apply only to the certificate with reference to the land described, as to which there is evidence that they are lands by or through which the water course passed. All the sections or fractional sections mentioned in any Appellant also contends that his riparian one certificate constitute a single tract of rights extend to those quarter sections not on land." In the case at bar the stipulation is the stream, inasmuch as they are contiguous | that these 14 quarter sections were granted to those that are washed by it. As already ・ each by a separate patent, each patent being seen, the fourth finding obviously intended to | based upon a separate entry, and these 14 limit plaintiff's riparian rights to those de- | quarter sections therefore constitute 14 distinct scriptions through which the streams run; but tracts of land, and mere contiguity cannot ex

It is also contended by appellant that the court had no power to order a new trial of its own motion, the cause having been tried by the court without a jury. The order granting a new trial does not profess to have been granted solely upon the court's own motion, and, as the grounds stated in defendants' motion fully justified the order, the point made by appellant need not be considered.

ROTHSCHILD v. SWOPE.

tend a riparian right which is appurtenant to
one quarter section to another, though both are
now owned by the same person.

It is alleged in the answer that said irrigation district "is a municipal corporation, and is not subject to be sued in this action," and we are asked by respondent to adjudicate that question. It is true, as appellant suggests, that it cannot be considered as affecting the order appealed from; but as that order must be affirmed, and as the question must again arise, unless abandoned by the defendant corporation, it should be disposed of now so as to avoid another appeal. We are not referred to any case where this question has been raised or decided. The fact that

it has not been before made, while by no means conclusive, is suggestive of the construction given to the statute by the bar. Section 14 of the Wright act (St. 1887, p. 35), after giving express authority to the board of directors "to institute and maintain any and all actions and proceedings, suits at law or in equity, necessary or proper in order to fully carry out the provisions of this act, or to enforce, maintain, protect or preserve any and all rights, privileges and immunities created by this act, or acquired in pursuance thereof," adds: "And in all courts, actions, suits, or proceedings, the said board may sue, appear, and defend, in person or by attorneys, and in the name of such irrigation district." This language is quite as effective to subject the district to an action as the more common expression "to sue and be sued." "Appearance" is defined by Bouvier to be "a coming into court as a party to a suit, whether as plaintiff or defendant"; "the formal proceeding by which a defendant submits himself to the jurisdiction of the court"; while the word "defend" is defined in Black's Law Dictionary as follows: "To contest and endeavor to defeat a claim or demand made against one in a court of justice." It is conceded that the state and its public agencies cannot be sued without express authority from the state itself, and that, as held in Re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675: “An irrigation district organized under the Wright act becomes a public corporation, and its officers become public officers of the state." Undoubtedly a general statute authorizing individuals or private corporations to sue or be sued would not be construed to include municipal corporations; but where, as here, the statute in question relates directly and exclusively to corporations formed under it, that part relating to its liability to sue or be sued must be determined by those rules of construction intended to aid in ascertaining the intention of the legislature, for whatever power it does bestow is granted directly and expressly to such corporation. If such corporations may not be sued, no judgment can be rendered against them, whether they appear and defend or not, and certainly the legislature did not intend that such actions should

911

(Supreme Court of California. May 7, 1897.)
FRAUDULENT CONVEYANCE
CHANGE OF POSSESSION-INTENT-CONDITIONAL
STOCK IN TRADE-
SALE-PAROL EVIDENCE AGENCY-EVIDENCE
OF AUTHORITY.

1. A debtor wrote certain of his creditors, informing them of his financial embarrassment, but stating an intent not to quit business, and a belief that, by the end of three weeks, he would have sold enough goods to pay all his debts, and offering to give them a bill of sale of his stock if they felt insecure. days later, such creditors assigned their claims About 10 to plaintiff, with authority to buy the stock, "the goods to be taken in full of the creditors' claims"; and possession was taken by plaintiff under a bill of sale absolute on its face, and sales were made by the agent of such creditors, Iwith the debtor's assistance, for two weeks, when the agent surrendered possession to the debtor, and the latter erased plaintiff's name from the sign in front of the store. There was no consideration for the transfer other than the claims, and the sale was advertised by plaintiff to continue for 14 days only, and there was evidence that plaintiff authorized an advertisement that, after part of the goods had been sold, the debtor would again conduct the business. testimony as to whether the bill of sale was to The be conditional for the payment of the creditors' debts, or absolute, was conflicting. Held, that a finding that the sale was fraudulent as to creditors, under Civ. Code, § 3440, because of the equivocal nature of the transaction and of the possession taken, was justified.

2. Though a creditor knew of a sale of the debtor's goods to other creditors, he may attach them in good faith if they are afterwards found in possession of the debtor with all the indicia of ownership.

3. Evidence that creditors assigned claims to plaintiff for the purpose of conducting their a sale of the debtor's goods; that plaintiff took possession under the belief that it was to be surrendered to the debtor when enough to cover the claims was realized from sales; that plaintiff employed an agent to make the sales, with authority to act generally for him; and that thereafter the creditors corresponded with such agent,-sustains a finding that a surrender of possession to the debtor by the agent, after conducting sales for two weeks, was authorized by the creditors.

4. Evidence of things said and done by the parties before and after the execution of a bill of sale absolute on its face is admissible to show that the instrument was intended to operate as conditional security.

5. Where creditors, after receiving an offer of a bill of sale from their debtor, assign their claims to an agent for the purpose of conducting the transaction, with authority "to take the goods in full of the creditors' claims," the agent has authority to agree with the debtor that the sale shall be conditional, and that the goods will be surrendered to him when enough is realized from the sales to satisfy the claims.

CHIPMAN, C. This is an action for conversion, brought by plaintiff against defendant, for a certain stock of goods and merchandise which defendant had seized by writ of attachment, as sheriff of Riverside county, in the suit entitled "J. A. Simms versus E. M. Stanton." The defendant justified under his writ. Plaintiff claims ownership of the goods at the time of their seizure. The cause was tried by the court, and it rendered judgment | Saturday evening. The following Monday for defendant. Plaintiff moved for a new trial, which was denied, and this appeal is from the order denying the motion.