"This stipulation entered into by Victor Pezzoni of Osoflaco, San Luis Obispo County, California, and Pia Pezzoni, his wife, stipulates that, inasmuch as there is an unsurmountable incompatibility of temper and character between the husband and wife, they have herein agreed to a peaceable separation on the following terms and conditions: First, that said Victor Pezzoni will leave his wife's abode on Osoflaco and depart for Switzerland, and at no time hereafter will ever molest her or approach her against her will. And that their daughter Ernestina is left in the sole charge and care of the mother. Second, that in consideration of Victor keeping to the above agreement, Mrs. Pia Pezzoni agrees to pay immediately and hereafter the following sums as hereinafter stipulated: One hundred dollars for clothing and necessaries. One hundred and seventy-five dollars for first-class passage from Guadalupe to Switzerland; seventy-five dollars for pocket money for incidentals on the trip; a draft of one hundred dollars collectible on his arrival in Switzerland. And to send him thereafter a monthly remittance of twentyfive dollars each month. Each of the contracting parties agrees to comply faithfully to his or her agreement in the above stipulation. Done in duplicate this twelfth day of January, 1911, that each party may have a copy. Witness: S. Campodonio. W. F. Lucas." Victor Pezzoni (Seal) (Seal) It was found by the lower court that "after the execution of the agreement, and pursuant thereto, and solely by reason thereof, said Victor Pezzoni left his wife's abode and departed for Switzerland; thereafter said Victor Pezzoni returned to California, and ever since his return he has continued to reside and now resides within the State of California". The defendant claims that the finding last quoted shows that the plaintiff has breached his contract and may not recover. [1] We think this claim is sound. Under his contract the plaintiff was "to depart for Switzerland". The word "depart" means to go away, and is synonymous with abandon, die and escape (Standard Dict.). Such was its old legal meaning (Burill's Law Dict.). It does not imply temporary visits but has reference to permanent visits. (Blodgett v. Utley, 4 Neb. 29; Venuci v. Cademartori, 59 Mo. 352; Webster v. Bank, 96 N. W. 118, 119; Lee v. McKoy, 24 S. E. 210; In re Jack Sen, 36 Fed. 441). We think this meaning of the word "depart" is re-enforced by the clause that the plaintiff will never "approach her against her will". One of the ordinary meanings of the word "approach" is "to come nearer in space" (Stand. Dict.). Again his departure was a sine qua non so far as payments by the defendant were concerned. The plaintiff was to be paid his expenses of going to Switzerland, not the expenses of a round trip; his monthly allowance was not to be paid until "his arrival in Switzerland"; the subsequent payments defendant was "to send him" after plaintiff reached Switzerland. The judgment should be affirmed, and it is so ordered. We concur: BEASLY, J. pro tem. STURTEVANT, J. pro tem. Civil No. 2445. First Appellate District. September 17, 1918. MARY L. OREE et al., Plaintiffs and Respondents, v. VINCENT GAGE et al., Defendants and Appellants. [1] HOMESTEAD PROPERTY HELD IN TRUST.-A homestead cannot be declared on property held in trust by a mother for her daughters. Appeal from the Superior Court of Fresno County-Geo. E. Church, Judge. This is an action to quiet title. The plaintiff had judgment in the trial court and the defendant, Gage, has appealed under section 953a of the Code of Civil Procedure. On June 14, 1895, J. Downing deeded to Clara Gage. On December 21, 1895, Clara Gage deeded to these plaintiffs. The judgment of the trial court was correct if the property was not community property and was not affected by a purported declaration of homestead. The plaintiffs introduced evidence that they were the daughters of Clara Gage by a former marriage; that their mother took and held the property in trust for them; that the purchase price was paid out of the earnings of the daughters, and that the defendant, stepfather, did not contribute anything to the payments, but, during the major portion of the period during which the purchase price was being paid, he was living separate and apart from the mother. The trial court evidently believed this testimony and properly held that Clara Gage merely held the property in trust for her daughters. [1] On trust property she could not legally declare a homestead. (Osborne v. Strachan. 32 Kan. 52; Rice v. Rice. 108 Ill. 199; Gordon v. English, 3 Lea 640; Shepherd v. White, 11 Tex. 346; Bier v. Leisle, 172 Cal. 432, 435.) It follows that the judgment should be affirmed, and it is so ordered. STURTEVANT, J. pro tem. We concur: LENNON, P. J. BEASLY, J. pro tem. Crim. No. 448. Third Appellate District. September 17, 1918. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. WONG BOW, Defendant and Appellant. [1] CRIMINAL LAW-APPEAL-FAILURE TO FILE BRIEFS-TRANSCRIPT NOT REVIEWABLE.-Where, on an appeal from a judgment and order denying a new trial in a criminal case, the appellant fails to file any briefs, the appellate court is not called upon to review the transcript. [2] ID.-ARSON-AFFIRMANCE OF JUDGMENT.-On this appeal from a judg ment and order denying a new trial in a prosecution for the crime of arson, it is held that the verdict is sustained by the evidence and the record free from errors occuring at the trial. Appeal from the Superior Court of Sonoma County-Emmet Seawell, Judge. For Appellant-W. F. Geary, W. V. Vallandigham. For Respondent-U. S. Webb, Attorney-General; J. Chas. Jones, Deputy Attorney-General. BY THE COURT. Defendant, a Chinese boy, nineteen years of age, was informed against by the district attorney of Sonoma county, California, on the charge of arson. Upon trial the jury found said defendant guilty of arson in the second degree, with recommendation for leniency. The court, being of the opinion that said defendant, Wong Bow, was a fit subject for commitment to the Preston School of Industry, at Ione, California, suspended judgment (sentence) and ordered said defendant committed to said Preston School of Industry until he reaches the age of twenty-one years or until legally discharged. This appeal is from said judgment and order denying his motion for a new trial. Appellant has filed no briefs herein nor has his time so to do been extended either by stipulation or order of this court. [1] Under such circumstances, while we are not called upon to review the transcript, we have carefully perused the same and are satisfied that the defendant had a full and impartial trial and was justly convicted of arson. [2] Indeed, the evidence against him is overwhelmingly convincing and we have perceived no sufficiently prejudicial error in the instructions of the trial court or ruling upon the admission or rejection of evidence to warrant any interference by this court with said judgment or order. The judgment and order are, therefore, affirmed. Civil No. 2448. First Appellate District. September 18, 1918. CHARLES P. DOE et al., doing business as BAY COUNTIES EXPRESS CO., Plaintiffs and Appellants, v. EUGENE CRAMER and AMERICAN SURETY CO. OF NEW YORK, Defendants and Respondents. [1] OFFICER'S LIEN-COSTS AND CHARGES OF ATTACHMENT-COSTRUCTION OF SECTION 3057, CIVIL CODE.-Under section 3057 of the Civil Code, an officer who levies an attachment or execution upon personal property acquires a special lien, dependent on possession, upon such property, for his costs and charges. Appeal from the Superior Court of the City and County of San FranciscoDaniel C. Deasy, Judge. For Appellants-H. W. Glensor. For Respondents-L. C. Pistolesi, Charles A. Shurtleff, J. G. De Forest. This is an action for conversion brought against the defendant Cramer, on his official bond as a constable of Marin county. The defendant had judgment in the trial court, the plaintiff appealed, and has brought up the judgment roll. If the defendant officer had a lien on the property which he is alleged to have converted, it is conceded that the judgment should be affirmed. Section 3057 of the Civil Code provides: "An officer who levies an attachment or execution upon personal property acquires a special lien, dependent on possession, upon such property, which authorizes him to hold it until the process is discharged or satisfied, or a judicial sale of the property is had." This section has never been construed by the appellate courts of California. It was based on Field's Draft, N. Y. Civil Code, section 1701. In his note to that section of his draft, Mr. Field cites only one case, Rhoads v. Woods, 41 Barb. 471. That was a case in replevin. The defendant Woods, as deputy sheriff, had attached a vessel and held the same for his costs and charges; at the time of the trial the initial actions had been settled as between the parties; several of defendant's charges had been paid, but there was still due him, as deputy sheriff, $85.87. The court held that the defendant acquired a lien by virtue of the levy under the attachments and that such lien constituted a qualified or special title and reversed the judgment against him. [1] On the authority of that case, this one should be affirmed, and it is so ordered. We concur: LENNON, P. J. BEASLY, J. pro tem. STURTEVANT, J. pro tem. Civil No. 1862. Third Appellate District. September 18, 1918. GEE CHONG PONG, AH COON, AH TIM, AH TOON and AH SAM, copartners doing business under the firm name and style of Fook Hing Lung Company, Plaintiffs and Appellants, v. MARGARET HARRIS, as Administratrix of the Estate of Aaron Harris, Deceased, Defendant and Respondent. [1] PROBATE LAW-CLAIM OF PARTNERSHIP-INSUFFICIENCY OF AFFIDAVIT. An affidavit to a claim against the estate of a deceased person stating that the claim was presented by Fook Hing Lung Co., and that "Fook Hing Lung Co. being duly sworn, says", etc., and "that there are offsets to the same to knowledge of said claimant, and signed "Fook Hing Lung Co., by Gee Chong Pong, member and clerk of said Co.", is insufficient under the requirements of section 1494 of the Code of Civil Procedure. no Appeal from the Superior Court of Plumas County-J. O. Moncur, Judge. For Appellants-L. N. Peter, James A. Nutting. For Respondent-A. R. Tabor, W. T. Phipps. The second amended complaint sets forth an action in two counts. The first is based upon the sale of two certain gold nuggets, one of the value of $135.00 and the other of the value of $75.00, "upon an understanding and agreement between plaintiffs and said Aaron Harris (defendant's intestate) that plaintiffs should have a lien upon said personal property as security for the return thereof to plaintiffs or the payment to plaintiffs of the value thereof. It is alleged "that said Aaron Harris never returned the said personal property or paid plaintiffs the value thereof, and ever since the said 2nd day of September, 1914, said personal property has been held and possessed by said Aaron Harris and his estate", and that at the time of his death said Aaron Harris was indebted to plaintiffs in the sum of $210.00 for said gold nuggets "and the estate of said deceased is still indebted to plaintiffs therefor". For a second cause of action it is alleged that, on September 2, 1914, "plaintiffs purchased of said Aaron Harris certain goods, wares and merchandise, to wit, certain hams, and then and there paid said Aaron Harris cash in the sum of $15.00 therefor" to be thereafter delivered but "that said Aaron Harris never delivered the said hams to plaintiffs and plaintiffs have never received the same"; that at his death the said Harris was indebted to plaintiffs in the sum of $15.00, no part of which has ever been paid and said estate is indebted therefor. The prayer is for judgment for $225.00; "that $210.00 thereof be adjudged a lien on the said personal property; that said personal property be decreed to be sold in satisfaction of said lien; that the said claim be allowed and approved and adjudged to be a valid claim against the said estate, and that said administratrix be directed to pay the same in due course of administration". The affidavit to the claim, which latter is the basis of the action, reads as follows: "State of California, County of Plumas, ss. Fook Hing Lung Co., whose foregoing claim is herewith presented to the administratrix of said deceased, being duly sworn, says that the amount thereof, to-wit: the sum of two hundred and twenty-five ($225.00) dollars, is justly due to the said claimant; that no payments have been made thereon which are not credited, that there are no offsets to the same to the knowledge of said claimant. Fook Hing Lung Co. By Gee Chong Pong, Member & Clerk of said Co. Subscribed and sworn to before me this 20th day of September, A. D. 1915. Elizabeth Caya. (Seal) Notary Public, in and for Plumas County, State of California. My Commission expires Apr. 2, 1916. Endorsement: The within claim rejected this 15th day of October, A. D. 1915. Margaret Harris, Admx of Estate of Aaron Harris." Defendant demurred to the complaint on the following grounds: 1. That the court has not jurisdiction "by reason of the fact that no lien is shown by said complaint and that the amount of the claim sued upon is less than three hundred dollars"; 2. That two causes of action, one for the foreclosure of a lien for a balance due on account of said nuggets and one for cash advanced for certain hams, are improperly united; 3. That said complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer "without leave to amend", and judg ment passed for defendant. Plaintiffs appeal from the judgment. Clearly, the court was without jurisdiction unless the action relating to |