date, in our opinion, must be taken as the time when the plaintiff was restored to capacity, rather than October 24, 1911, the date of the decree of the superior court which purported to judicially determine his restoration to capacity. The plaintiff's petition to be restored to capacity, which was the basis of the decree of the superior court, did not aver that he had been under guardianship by virtue of the provisions of sections 1763 and 1764 of the Code of Civil Procedure, at the time of his commitment for insanity to the state hospital; and consequently the superior court had no jurisdiction to hear and determine the question of the plaintiff's mental capacity. Such jurisdiction, in the absence of guardianship proceedings, was vested exclusively in the officers. of the state hospital (Kellogg v. Cochran, 87 Cal. 192, [12 L. R. A. 104, 25 Pac. 677]), and therefore the plaintiff's discharge from the hospital upon the ground of his recovery was an adjudication by competent authority that he was sane on the day and date of his discharge. (Kellogg v. Cochran, 87 Cal. 192, [12 L. R. A. 104, 25 Pac. 677].) The case of Aldrich v. Barton, 153 Cal. 488, [95 Pac. 900] has no application to the facts of the present case. There the patient had been away from the state hospital for many years, claiming all the while, without opposition from the officers of the hospital, to have been discharged and at liberty under a purported order of discharge; and the supreme court held that under those circumstances the officers of the state hospital lost the custody and control of the patient, and were therefore ousted of jurisdiction to make a second certificate of discharge. That case recognizes the right of the medical superintendent of a state hospital to release a patient on parole; and that is precisely what was done in the present case. During his leave of absence the plaintiff was constructively in the custody and under the control of the state; and it was not essential to the exercise of jurisdiction to discharge the plaintiff that he should have been actually confined in the state hospital at the time the certificate of discharge was applied for and granted. (People v. Geiger, 116 Cal. 440, [48 Pac. 389].) The certificate of discharge dated May 24, 1904, was at least prima facie proof of the plaintiff's restoration. to capacity upon that date (Aldrich v. Barton, 153 Cal. 488, [95 Pac. 900]), and nothing appearing to the contrary, the

presumption must prevail that he was then and ever since has been sane.

It is not disputed that the plaintiff's purported resignation as a member of the police department was accepted and dealt with by the board of police commissioners upon the theory that it took effect immediately, notwithstanding the fact that the records of the commission show that it was to take effect at a time not specified. In short, it is not disputed that the plaintiff was ousted from his position as a police officer by the board on September 24, 1901, the date of his purported resignation; that being so, his cause of action for reinstatement accrued upon that date; and giving him credit for the time during which he was under the disability of insanity, the statute, in our opinion, commenced to run against his cause of action upon May 24, 1904, the date of his restoration to capacity, as shown prima facie by the medical superintendent's certificate of discharge, and consequently his cause of action was barred by the statute of limitations. (Code Civ. Proc., secs. 352, 338, 343; Farrell v. Board of Police Commrs., 1 Cal. App. 5, [81 Pac. 674]; Jones v. Board of Police Commrs., 141 Cal. 96, [74 Pac. 696]; Dodge v. Board of Police Commrs., 1 Cal. App. 608, [82 Pac. 699].)

It was not contended upon behalf of the plaintiff in the court below, nor is it contended here, that he did not have knowledge of the fact that his purported resignation was accepted and treated as having gone into effect as of the date of its tender; and his only excuse for not sooner instituting his action is that he could not do so until he had been restored to capacity by the decree of the superior court. But such decree, as has been pointed out, was, under the facts of the present case, neither a necessary nor a valid adjudication of his competency, and consequently will not avail to toll the statute of limitations, nor relieve him from the penalty of his undoubted laches in instituting the action.

We need not concern ourselves with the question as to whether or not the evidence sustains the finding that the plaintiff did in fact tender his resignation, and that the same was accepted and took effect immediately, for the fact still remains that the plaintiff, under and by virtue of his purported resignation and its acceptance, ceased to be a member of the department from the date thereof; and even if it be conceded that he was thereby wrongfully deprived of his

office, the finding upon the statute of limitations and the laches of the plaintiff being supported by the evidence, it alone will suffice to support the judgment.

This disposes of all of the points presented in the appeal which we deem worthy of discussion.

The judgment and order are affirmed.

Kerrigan, J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1916.

[Civ. No. 2006. Second Appellate District.-September 28, 1916.] F. F. COPP, Respondent, v. GUARANTY OIL COMPANY (a Corporation), Appellant.

PROMISSORY NOTE-DEFAULT IN INTEREST-EXERCISE OF OPTION-TENDER-CONFLICTING EVIDENCE-APPEAL.-In an action to recover on a promissory note, which contained a provision that if interest payments were not made when due, the whole sum of principal and interest should become immediately due and payable at the option of the holder, the finding of the trial court, on conflicting evidence, that the option to mature the note had been exercised prior to the alleged tender of the overdue interest is conclusive upon the appellate court.

ID.-AGREEMENT NOT TO SELL NOTE-KEEPING OF PLEDGED STOCK AVAILABLE FOR VOTING PURPOSES-RIGHT OF PAYEE AFTER DEFAULT.-An agreement made at the time of the execution of a note and as a part of the consideration therefor that the payee would not negotiate or sell or allow the note to go out of his possession other than to deposit it in a bank until the same became due, and that he would keep certain stock delivered to the payee as collateral security at all times available, so that the maker of the note could use or vote the stock in any stockholder's meeting of the corporation, is not to be construed as an agreement which would hinder the payee from transferring the note after default had been made in the payment of interest, or for the purpose of collecting the debt.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Fred H. Taft, Judge.

The facts are stated in the opinion of the court.

Weaver, McCracken & McKee, for Appellant.

Clair S. Tappan, for Respondent.

JAMES, J.-This action was brought upon a promissory note executed by the defendant. Plaintiff had judgment, and a motion made by the defendant for a new trial was denied. The appeal is taken from the judgment and also from the order denying the motion.

The promissory note, which evidenced an indebtedness of fourteen thousand one hundred dollars, was dated at Los Angeles, June 14, 1911, and made payable "on or before two years after date. It contained a provision that if interest payments were not made when due, "then the whole sum of principal and interest shall become immediately due and payable at the option of the holder." In December, 1911, an installment of interest became due, and it was because of default in the payment of this interest that the plaintiff declared an option to mature the full amount of the note. On the 29th of January, 1912, written notice was given to the defendant company of this election on the part of the plaintiff and this action was shortly thereafter brought. The payee of the note was W. H. Fuller, who, after the December interest payment became due, indorsed the note to this plaintiff. As collateral security there was delivered to the payee with the note and afterward transferred to his indorsee thirty thousand shares of the Lucky Boy Oil Company stock. In the answer of the defendant issue was raised as to the matter of the note being indorsed to this plaintiff, and it was denied that any default had been committed in the matter of the payment of interest at the time of the alleged election of the plaintiff to declare the whole amount of principal and interest due. In the separate defense, more particular reference to which will be hereinafter made, one of the allegations was that before the original payee had indorsed the note to plaintiff, tender had been made to such

payee of the amount of interest due on the note, together with compound interest, all of which the payee refused to accept. It appeared in evidence that prior to the time this action was brought, the representative of defendant called upon the attorney for this plaintiff and made request to be allowed to pay the interest, both simple and compound, which had then accrued; that the attorney for plaintiff informed such representative of defendant that he had no authority to accept anything except the full amount of principal and interest. There was a conflict in the testimony as to when this conversation was had. Two witnesses for the defendant testified that it occurred on the twelfth day of January, 1912 (this action having been commenced early in March of the same year). There was no dispute in the evidence showing that on the twenty-ninth day of January, 1912, a letter was written by the attorney for this plaintiff to the defendant, notifying defendant of the election of the plaintiff to declare the whole amount of the note, both principal and interest, due on account of the default in the payment of the installment of interest which had become due in December, 1911. The attorney for the plaintiff testified that the conversation had with the representatives of defendant, wherein an offer was made to pay overdue interest, occurred after the dispatch and receipt by them of the letter wherein the option was exercised to mature the note. In the presence of this conflict in the testimony, the findings of the trial court wherein they are adverse to the appellant's contention as to that matter must be sustained. We find in the transcript the record of statements made by the learned trial judge, wherein it was suggested as the view of the court that it was immaterial as to whether any tender of interest was made before or after the receipt of the written notice of election to mature the note, because, as stated by the judge, when the parties appeared at the office of plaintiff's attorney they were told that the attorney had no authority except to collect the full amount of the note. The trial judge declared that such a statement made under such circumstances was sufficient to mature the note and to show an election on the part of the plaintiff so to do, and that any offer then made by the defendant to pay the interest then owing was ineffectual. We are hardly prepared to agree with the trial judge in this view, but we cannot disturb the judgment because of such

31 Cal. App.-35