sidering whether it is sufficient to establish any right of the plaintiff in or to the land on which she was keeping her horses. We are of the opinion that it is wholly insufficient for that purpose. As the record does not show who was the owner of the land, or where he was at any time, it may be that the plaintiff's occupancy there was entirely without his knowledge or consent, and that she was a mere trespasser. If so, the statute upon which she must rely in this case gives her no cause of action against the defendant. With regard to the errors claimed in the refusal of instructions, and in the giving of instructions by the court to the jury, it seems necessary to refer here to instruction No. 1 given by the court as follows: "You are instructed that the laws of this state require railroads to maintain fences beside their tracks, and if they make a gate in the fence, it is a part of the fence, and when there is a road across their track with a gate in the fence across it, they are under the same duty to keep it in repair when erected as it is regarding any other part of the fence, and also it is their duty to keep such gate closed at all proper occasions to prevent stock from adjoining lands from passing upon the right of way of said roadbed." The objection urged is that the instruction imposes upon the defendant the absolute duty to keep the gate closed, whereas in fact its only duty was to use reasonable care to keep it closed. In Johnson v. Southern Pacific Co., 11 Cal. App. 278, 285, [104 Pac. 713], the court said: "Had the defendant erected and maintained a good and sufficient gate, it would have been required only to exercise reasonable diligence in keeping the gate closed;" citing and quoting from Thompson on Negligence, section 2059. In the case at bar no claim has been made that the gate was insufficient or out of repair. On the contrary, the testimony of the plaintiff's own witnesses proves that the fence was sufficient to turn stock and that the gate was better than the fence. It seems that the horses strayed out of the field because some person whose identity was not ascertained left the gate open on the afternoon preceding the night when these horses were killed. Therefore, clearly the question for the jury to determine was as to whether the defendant had used reasonable diligence in the matter of keeping its gate closed. Therefore, the instruction as given was not only erroneous, but also it was seriously prejudicial to the defense. The judgment and order are reversed. James, J., concurred. Shaw, J., concurred in the judgment. [Civ. No. 1921. First Appellate District.-October 25, 1916.] CHARLES J. PEASE, Respondent, v. J. F. FITZGERALD, Appellant; CALIFORNIA MAIL ORDER HOUSE, T. W. WITHOFT, Trustee, etc., Respondent. ASSIGNMENT OF PLEDGED COMMERCIAL PAPER-RIGHTS OF ASSIGNEE.-A pledgee of commercial paper may assign and deliver the same, and, in the event of such transfer, the assignee holds it in the same capacity as the original pledgee, and may bring suit to collect the collateral note when due. ID.-ACTION BY ASSIGNEE-FRAUD IN PROCUREMENT OF NOTE-DEFENSE WHEN NOT AVAILABLE.-In an action brought by the assignee of a pledged promissory note to recover the amount alleged to be due thereon, the maker cannot set up as a defense to the action that the note, which was given as the purchase price of certain corporate stock for which he subscribed, was procured through the false and fraudulent representations of the agent who acted for the corporation, where such defendant at the time of making his subscription, signed a memorandum attached thereto to the effect that his subscription was based upon the printed literature and printed statements of the corporation, and that no representations made by its agents not in accordance therewith should be binding upon the corporation. APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Franklin A. Griffin, Judge. The facts are stated in the opinion of the court. Brittan & Raish, and W. E. Davies, for Appellant. Robert R. Moody, and Edwin L. Forster, for Respondent Pease. Franklin T. Poore, for Respondent Withoft. RICHARDS, J.-This is an appeal from a judgment in favor of plaintiff in an action brought to recover the sum of one thousand dollars and interest alleged to be due upon the promissory note of the defendant, J. F. Fitzgerald, and from an order denying said defendant's motion for a new trial. The facts out of which the action arose were these: On the eighth day of February, 1912, the defendant, J. F. Fitzgerald, executed and delivered to the California Mail Order House, a corporation, a promissory note for the sum of one thousand dollars as the purchase price of one thousand shares of its capital stock for which he subscribed on that day. The transaction was conducted on behalf of the corporation by one Hugh Wyncoop, as its agent, who is alleged by the said defendant Fitzgerald to have made to him certain false and fraudulent representations as to the assets and solvency of the corporation. The said defendant, however, at the time of making his said subscription, signed a memorandum attached thereto to the effect that his subscription was based upon the printed literature and printed statements of the corporation, and that no representations made by its agents not in accordance therewith should be binding upon the corporation. On April 20, 1912, the California Mail Order House executed and delivered to the American National Bank of San Francisco its promissory note for the sum of two thousand five hundred dollars, and at the same time assigned and delivered to the said bank as security for the same the promissory note of the defendant Fitzgerald. On April 30, 1912, the California Mail Order House paid to the bank $1,435.82 on account of its note but no further sum, and on May 11, 1912, the bank indorsed and delivered to the plaintiff and respondent in this action the Fitzgerald note. On May 24, 1912, the California Mail Order House was adjudged a bankrupt, and one T. W. Withoft was appointed trustee. On October 30, 1912, the present suit was brought. In his answer the defendant Fitzgerald set forth several defenses, chiefly relying, however, both in his pleading and at the trial, upon the defense that the note had been procured through the false and fraudulent representations made by said Wyncoop at the time of his stock subscription, upon the discovery of which he had taken steps to rescind the transaction. Upon the trial he was permitted to testify fully as to these matters. The court gave judgment in plaintiff's favor, and from such judgment and the order denying a new trial the defendant Fitzgerald prosecutes this appeal. The first point urged by the appellant is that the assignment and transfer of his promissory note by its pledgee, American National Bank, to the plaintiff, was illegal and void for the alleged reason that a pledgee of commercial paper has no right to sell the same, but must collect the amount due thereon at maturity, and apply the proceeds to the payment of the principal debt. Whatever may be the rule in other jurisdictions from which the appellant draws for authority supporting his contention, the rule is well settled in this state that a pledgee of commercial paper may assign and deliver the same, and in the event of such transfer the assignee holds the same in the same capacity as the original pledgee, and may bring suit to collect the collateral note when due. (Cushing v. Building Assn., 165 Cal. 731, [134 Pac. 324]; Brittain v. Oakland Bank of Savings, 124 Cal. 282, [71 Am. St. Rep. 58, 57 Pac. 84]; Williams v. Ashe, 111 Cal. 180, [43 Pac. 595]; Dewey v. Bowman, 8 Cal. 145.) The appellant in his closing brief herein practically admits that this is the settled rule in this state, but urges that in the event of such transfer the assignee takes the note subject to all of the defenses which the maker might have urged against the original payee. It is not necessary, however, to discuss or decide this point, for the record discloses that the appellant was permitted upon the trial of the cause to fully present his defenses to the note, and that the court found that neither of the two chief defenses to the payment of the obligation was sufficiently made out. We think the evidence sufficiently sustains the finding of the court in that regard. The defendant was not entitled to rely on the oral statements of the agent Wyncoop in the face of his own express written agreement that only the printed statements of the corporation were to be regarded in making subscriptions to its stock. The effort of the appellant to rescind his agreement after his discovery that Wyncoop's statements were false was clearly not sufficiently carried into effect to work a rescission of his agreement or furnish a defense to the payment of his note. We discover no error in the record before us. Lennon, P. J., and Kerrigan, 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 December 21, 1916. [Crim. No. 494. Second Appellate District.-October 25, 1916.] THE PEOPLE, Respondent, v. JOSE ANDRADE, Appellant. CRIMINAL LAW-APPEAL-FAILURE TO APPEAR-AFFIRMANCE OF JudgMENT.-Where on an appeal taken in a criminal case the appellant's counsel fails to appear at the time set for oral argument, it is proper to move for an affirmance of the judgment under the provisions of section 1253 of the Penal Code. APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial, W. B. Wallace, Judge. The facts are stated in the opinion of the court. Ralph H. Walker, and Edwards & Smith, for Appellant. U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent. JAMES, J.-The defendant was convicted of the crime of murder and by the verdict of the jury his punishment was fixed at imprisonment for life. Judgment in accordance with that decision was regularly made. A motion for a new trial being presented was denied by the court, and an appeal was taken from the judgment and order. The transcript on appeal was filed on May 13, 1916. No brief was offered to be filed on the part of appellant until October 17th. At the last-mentioned date a brief was deposited in the office of the clerk of this court. At the time set for oral argument on the calling of the calendar on October 24, 1916, appellant's counsel did not appear, and the attorney-general moved for an affirmance under the provisions of section 1253 of the Penal Code. The motion was properly made under |