arises, the materiality of which the court must decide. On this question of variance, see Underh. Cr. Ev. § 31; People v. Arras, 89 Cal. 226, 26 Pac. 766. In People v. Baker, 100 Cal. 188, 34 Pac. 649, 38 Am. St. Rep. 276, the mortgage set out in the information did not include the certificate of acknowledgment, as did the mortgage introduced in evidence, and it was held no variance. In People v. Phillips, 70 Cal. 61, 11 Pac. 493, the promissory note was set out in the information "in the words and figures following," followed by a purported copy of the note. There was a word omitted, as appeared when the note was introduced. Held immaterial. We do not think the information can be construed as charging forgery of the notary's certificate. The charge is that defendant did "make and forge a certain deed," not that he forged the acknowledgment or the signature of the notary. The certificate is but part of the completed deed entitling it to be recorded, as was also the attaching of the revenue stamps. The grantee would not accept a deed not acknowledged, and for the purpose defendant had in mind the acknowledgment was necessary to its accomplishment, but it was not necessary that this also should be forged. The necessary thing was to get John Sullivan's name to the deed, and when defendant forged his name he did "make and forge a certain deed and instrument in writing in the words and figures following, to wit," as alleged in the information; i. e., a deed the identity of which is shown by the copy set forth. The judgment and order should be affirmed. We concur: HAYNES, C.; COOPER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and or der are affirmed. (137 Cal. 467) COLUMBIA SAV. BANK v. LOS ANGE- MENT--STATUTES. 1. here, in a suit by a bank to recover taxes paid under protest, the question whether plaintiff expended a certain sum in investing in United States bonds in order to evade taxation on such sum was made in the pleadings and evidence, and the court found on conflicting evidence that there was no such attempt to evade taxation, the question as to such intent was not an open one on appeal. 2. Defendant contended on appeal that the facts stated by the officers of the bank to the assessor justified him in concluding the sum should be taxed, and estopped it from making a claim based on a different state of facts. Held, that whether the representations differed from those appearing on the trial, and, if so, which were true, was necessarily disposed of in the finding as to the intent. 3. Pol. Code, § 3819, provides for payment of taxes under protest, and then recovery by action if the tax was illegal. Held that, where taxes were paid under protest, the decision of the county board of equalization refusing to strike from the assessment the property on which plaintiff claimed no tax should be assessed, was not conclusive in an action under section 3819, as failure to apply to the board would have barred relief under section 3819. 4. Section 1915 of the Civil Code declares that interest is the compensation for the use, or forbearance, or detention of money; and section 1920 provides for interest on judg ments. Section 1914 provides that a loan of money is presumed to be on interest unless otherwise stipulated. Held, that where taxes are paid to a county under protest, and recovered under section 3819, Pol. Code, it not being a loan under section 1914 of the Civil Code, and there being no liability on the county until judgment for the taxpayer, interest does not run until judgment. 5. Interest on a judgment is not suspended by appeal, writ of error, or certiorari, where there is an affirmance. 6. The provisions of the county government act relate to interest on county warrants, and have no application to the rate of interest on judgments against a county. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; D. K. Trask, Judge. Action by the Columbia Savings Bank against the county of Los Angeles. From a judgment for plaintiff, defendant appeals. Affirmed. Tirey L. Ford, Atty. Gen., James C. Rivers. Dist. Atty., and Curtis D. Wilbur, Chief Deputy, for appellant. Frank W. Burnett, for respondent. HAYNES, C. Action to recover from defendant certain taxes paid under protest pursuant to the provisions of section 3819 of the Political Code. The plaintiff had judgment, and the defendant appeals upon the judg ment roll, which contains a bill of exceptions setting out the evidence. About the middle of February, 1899, plaintiff bought United States interest-bearing bonds of the value of $59,206, and afterwards, about April 21, 1899, sold the same at a profit. In due time the plaintiff made and returned to the assessor what purported to be a statement of all the taxable property owned by it on the first Monday of March, 1899, and which included the sum of $9,374 of "Solvent Credits." In June, 1839, the city assessor called upon the officers of the bank, and was informed of the purchase and sale of said United States bonds, and claiming. as the result of his investigation, that the bonds were purchased for the purpose of evading taxation of the solvent credits used in their purchase, added to the solvent credits returned in its assessment list $59,210,— that being the amount used in the purchase of said bonds,-thus making the total of the solvent credits $68,850, upon which sum the bank paid the taxes assessed; but as to the tax upon the added sum of $59,210, amounting to $828.90, the payment was made under 5. See Interest, vol. 29, Cent. Dig. § 125. protest, and this action was brought to rccover back said last-named sum. Appellant's first point is thus stated: "The fundamental question as to whether a purchase of government bonds, made with intent to evade taxation, can be ignored, and the moneys used in the purchase assessed under section 3648 of the Political Code, is the one we are most anxious to have determined in this case, as the matter is of considerable importance, and is involved in a number of other cases against this same defendant." The question stated by appellant does not arise in this case. The question whether the plaintiff purchased said United States bonds with intent to evade taxation was made in the pleadings, evidence was given upon that issue, and the court found thereon, "that the plaintiff did not willfully or otherwise conceal, remove, transfer, or misrepresent said property, to wit, the said sum of $59,206, or any property whatever, to evade taxation; and particularly that it did not purchase said bonds of the United States for the purpose of evading taxation upon the money used in their purchase"; and counsel in their brief say that this finding, being based upon conflicting evidence, is not attacked. If the court had found that the bonds were purchased "with intent to evade taxation," and concluded, as matter of law, that the solvent credits used in their purchase were not taxable, appellant's question would have been pertinent. The distinction between the case of Jones v. Seward Co., 10 Neb. 154, 4 N. W. 946, cited by appellant, and the present case, is that there the court found that the bonds were purchased for the purpose of evading a just proportion of taxes, and was a fraud upon the revenue laws, while here the court found there was no fraud or evasion. 2. Appellant's second point is that the facts stated by the officers of the bank to the assessor were sufficient to justify him in concluding that said property should be taxed, and that plaintiff is estopped from making a claim based upon a different state of facts from those made to the assessor. That the assessor acted in good faith need not be questioned; and whether the representations made to him differed from those appearing upon the trial, and, if so, which is true, is necessarily disposed of in the finding hereinbefore quoted, to the effect that the bonds were purchased as an investment, and not to evade taxation, which finding it is conceded was made upon conflicting evidence, and therefore not reviewable here. 3. It is contended that the decision of the county board of equalization refusing to grant the petition of respondent to strike out of the assessment, as made by the assessor, the amount of $59,206, added by him to cover the said investment in United States bonds, is final and conclusive against the plaintiff. This contention is unsound. No appeal from the action of the board is pro vided for, but the taxpayer may have relief, under the provisions of section 3819 of the Political Code, in cases where he claims the assessment, or any part of it, is void, by paying under protest the full amount of the tax as assessed, and within six months thereafter bringing an action to recover back such part of the tax paid as he claims to be void, -as is done in this case. If respondent had neglected to apply to the board for relief, it would appear that such neglect would have barred its right to relief in this action. Henne v. Los Angeles County, 129 Cal. 297, 61 Pac. 1081. 4. It is further contended that the decree should be reversed because it provides that the judgment shall bear interest from its date at the rate of 7 per cent. per annum. Section 1915 of the Civil Code declares, “Interest is the compensation allowed by law or fixed by the parties for the use, or forbearance, or detention of money;" and section 1920 of the same Code provides: "Interest is payable on judgments recovered in the courts of this state, at the rate of seven per centum per anuum, and no greater rate, but such interest must not be compounded in any form." In this case no interest was claimed or allowed prior to judgment. Section 3819 of the Political Code provides, in substance, that, when the taxes have become payable, the owner of any property assessed therein, who may claim that the assessment is void in. whole or in part, may pay the same to the tax collector under protest in writing, and shall specify therein whether the whole assessment is claimed to be void, or, if a part only, what portion; and in either case the grounds upon which such claim is founded, such payment not to be regarded as voluntary, and such owner may at any time within six months after such payment bring an action against the county in the superior court to recover back the tax so paid under protest. In Mackay v. City and County of San Francisco, 128 Cal. 678, 687, 61 Pac. 382, the action was to recover a large sum for taxes illegally assessed, and paid under protest, and the court below was ordered to enter judgment upon the findings in favor of the plaintiffs for the amount illegally assessed, "and interest thereon at the legal rate" from the date of payment. No question as to the recovery of interest seems to have been made by counsel, nor was the question discussed in the opinion. In Savings & Loan Soc. v. City and County of San Francisco, 131 Cal. 356, 63 Pac. 665, the point was made that the court below erred in not allowing interest "from the date of payment of the tax under protest," citing sections 1915 and 1917 of the Civil Code, and Perley, Int. 135. It was held that the language of the statute was general, and did not include the state, or any of its subdivisions, and that the state was not bound by general words of a statute which would operate to establish a right of action against it. Citing Mayrhofer v. Board, 89 Cal. 110, 26 Pac. 646, 23 Am. St. Rep. 451, and Whittaker v. Tuolumne Co., 96 Cal. 100, 30 Pac. 1016. Mayrhofer v. Board, 89 Cal. 110, 26 Pac. 646, 23 Am. St. Rep. 451, was correctly decided, but does not decide this case. In that case the plaintiff sought to enforce a mechanic's lien upon a school house he had built under a contract with the board of education, and it was held that the mechanic's lien law did not apply to public buildings, since the only mode of enforcing a lien was by a sale of the building, and the sale of a public building was not authorized. But that case did not hold that the plaintiff could not, in a proper action, recover interest for the detention of the money due under the contract from the board of education. Nor do we question the correctness of Whittaker v. Tuolumne Co., 96 Cal. 100, 30 Pac. 1016. There the question was whether general language in a statute creating new remedies or prescribing procedure could be held to authorize such actions against a county. Here, however, the county government act not only declares that "counties have the power to sue and be sued," but the section of the Political Code herein before cited expressly authorized the present action, and it requires the payment of the illegal tax under protest in order to maintain an action to recover back the amount of the illegal exaction. The ques tion, therefore, is not whether a county may be sued, but what is the extent of the relief to which a taxpayer who has paid the illegal exaction is entitled? Under the express provision of the statute he is entitled to the return of the money paid under protest, if the tax was illegal. If the tax was legal, the county was entitled to payment, and the taxpayer is not injured. In such case there was neither "use or forbearance or detention of money" (Civ. Code, § 1915) prior to findings and judgment that the tax was illegal. The statute under which the payment was made to the defendant does not provide for the payment of interest, nor was any money due thereon from the defendant until its liability was fixed by the judgment of a court of competent jurisdiction. Nor was it a loan of money by the plaintiff to the defendant, which would be presumed to be made upon interest unless otherwise stipulated at the time in writing, as provided in section 1914 of the Civil Code. Whether, if it were shown that the defendant made a profit out of the money paid to it, under said statute, the plaintiff would be entitled to damages to the extent of such profit, not exceeding the legal rate of interest, is a question not presented and not considered. But the judgment in the case before us fixed the liability of the defendant, and from that date the money to which the plaintiff was entitled was detained from it, and natural justice, as well as the statute which provides that interest at 7 per cent. is payable on judgments recovered in the courts of this state, justifies the judgment relating to interest (Civ. Code, § 1920); but prior to judgment it was not the duty of the defendant to pay. That duty arose, however, when the judgment was entered, and from that time the plaintiff was entitled to interest at the statutory rate. Nor is the interest suspended by appeal, writ of error, or certiorari, where the judgment of the court below is affirmed. 1 Suth. Dam. p. 712. The provisions of the county government act, cited by appellant, relate to interest on county warrants, and have no application to the rate of interest on judgments. I advise that the judgment appealed from be affirmed. We concur: GRAY, C.; COOPER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed. (30 Wash. 87) GREEN v. WESTERN AMERICAN CO.* (Supreme Court of Washington. Sept. 25, 1902.) MASTER AND SERVANT-MINES-TIMBER FOR PROPS-NEGLIGENCE-ASSUMPTION OF RISK -CONTRIBUTORY NEGLIGENCE-EVIDENCEPLEADING. 1. Under Ballinger's Ann. Codes & St. § 3178, providing that "the owner of any coal mine shall keep a sufficient supply of timber at any such mine where the same is required for use as props, so that the workmen may at all times be able to properly secure the workings from caving in, and shall send down into the mine all such props when required, the same to be delivered at the entrance of the working place," the failure of the owner of a mine to furnish props and timbers when called for by a workman is negligence rendering such owner liable for injury thereby resulting to the work man. 2. Where the operator of a coal mine violates a statute providing for the furnishing of timbers to the workmen, and one is injured by reason of the lack of timbers which should have been furnished, the employer cannot plead assumption of risk, even when the miner knew of the violation. 3. Evidence examined in an action by a miner for damages resulting from falling rocks in the mine, and held that the question of his contributory negligence in continuing to work after the foreman had neglected to furnish the props called for was for the jury. 4. In an action by a miner to recover for injuries resulting from falling rocks in the mine on the ground that the mine owner had failed to furnish necessary timber to support the walls and roof, and that an incompetent pit boss was employed, the questions: What is a jump? whether in the geological change from a horizontal to an almost perpendicular, near where the coal is pinched out and reaches the gravel, there is a changed condition from hard to soft? whether there would be a similarity between the coal formation near such point and that at a distance therefrom? and what changes the condition of coal near the gravel or near a vault?-are competent. 5. Questions as to the duties of a pit boss as to inspecting the working places; as to keep 2. See Master and Servant, vol. 34, Cent. Dig. 545, 580. *Rehearing denied January 9, 1903 ing the chutes clear of coal; as to timbering or fixing the bulkheads for the purpose of keeping rocks from falling through the chutes; in relation to repairing defects when complained of; as to whether or not, when chutes become clogged or blocked, it is extrahazardous to start or unblock them; and as to whether there was general complaint among the miners of insufficiency of timbers,-are competent on the question of the incompetency of the pit boss. 6. Plaintiff should be permitted to show that the pit boss did not perform his duty to see that the coal in the chutes was removed and the travel ways cleared; in timbering the chutes and crosscuts, and placing and repairing bulkheads to keep rocks from falling through the chutes and crosscuts; that miners who made complaint of such neglect were instantly discharged: that he employed ignorant and inexperienced men, and set them at hazardous work, telling them there was no danger; that there was general complaint in the mine that the men could not get sufficient props and timbers for their protection; and also that the mine owner could by reasonable care have known of the incompetency of the pit boss and of his want of proper supervision over the workmen and mine; also the general reputation of the pit boss for competency and regard for the lives and limbs of the miners under his charge. 7. In an action by a miner to recover for injuries resulting from falling rocks, evidence of specific acts of incompetency of the pit boss, and that he did not have regard for the lives of men under his charge, is admissible under a general allegation that he was ignorant and incompetent. Appeal from superior court, Pierce county; W. O. Chapman, Judge. Action by Andrew Green against the Western American Company. From a judg ment for defendant, plaintiff appeals. Reversed. Govnor Teats, for appellant. Fogg & Fogg, for respondent. WHITE, J. This is an action for personal injury, brought by Andrew Green, a coal miner, against the Western American Company, owner and operator of the Fairfax mines, Pierce county, Wash. Nonsuit was granted by the court below, and the plaintiff appeals. There were two general elements of negligence charged in the complaint,-the employment of an incompetent pit boss, and the neglect of the defendant to furnish the plaintiff with timbers to properly timber his working place, as provided by section 3178, Ballinger's Codes & St. The second amended complaint, charging negligence, is as follows: "That some time prior to the 18th day of September, 1900, the defendant employed the plaintiff to mine coal in its mines at Fairfax. After his employment, plaintiff set to work driving a crosscut in said mine, which crosscut was to be driven between two chutes for a distance of about 70 feet. That on or about the day of plaintiff had driven the said crosscut at a distance of about 25 feet, and then and there requested of the pit boss, John Wilson, for timbers to properly prop the same, and quit work because of the lack of timbers to properly timber the said crosscuts so mined by plaintiff. That thereafter the said pit boss caused to be furnished to plaintiff timbers to properly timber and prop said chute for about 20 feet, and the plaintiff proceeded to work, and drove the said crosscut further on towards the chute on the opposite side of the pillar. That, after driving the same a distance of about 18 feet, it became necessary to timber and prop the said crosscut so as to protect plaintiff from falling coal and rock, and there and then requested the pit boss, Wilson, to furnish him with timbers to be used as props to properly secure the workings from caving in; and plaintiff alleges that there was at that time no timbers, or any supply of timbers, in said mines to supply the plaintiff at the entrance of his working place, or at any place where plaintiff could obtain the same, as is required by the laws of the state of Washington. The said Wilson then and there requested the plaintiff to proceed to his working place, stating to the plaintiff that the same was safe, and did not need and require timbers to prop, and requested the plaintiff to continue driving the crosscut until it reached the chute on the other side of the pillar, when the defendant would furnish the plaintiff with timber to properly timber and prop the said crosscut. That plaintiff then and there went back to his place of work, and continued to work until about 1 o'clock on the 18th day of September, 1900, when a rock or block of coal fell, by reason of the lack of timbers and the lack of propping, striking the plaintiff upon his head and back and body, fracturing his spinal column, and maiming and wounding him, so that plaintiff became paralyzed from the pit of his stomach and the lower portions of the bowels and all of the muscles and portions of the body, and limbs below the said point so injured, to wit, the center of the back and the pit of the stomach. Plaintiff alleges that it was the duty of the said pit boss, John Wilson, to furnish the said timbers as herein set out for and on the part of the said company for the purpose of making the places reasonably safe as provided by law; that the plaintiff and other miners in the said mine looked to the said pit boss, John Wilson, for the fulfillment of the said duty to the plaintiff and miners in the operation of the said mine. Plaintiff alleges that the said pit boss, John Wilson, at the time of his employment and at the time of the accident, was an ignorant, incompetent person, totally unfit to act as foreman, or take charge of underground work in a mine; that he had no knowledge of men, and no knowledge of mining, and did not know what was necessary to be done in the operation of the said defendant's mine in order to maintain reasonably safe places under ground for the men under his charge; that the said John Wilson was wholly ignorant of the geological formation of the earth and vein in which defendant's mine was located, and did not know what was necessary to be done in order to have and maintain reasonably safe working places under ground for the plaintiff and operators therein; that the said company knew full well that the said John Wilson was so incompetent and irresponsible at the time of the accident to the plaintiff and for a long time before, but that this plaintiff did not know of said character and incompetency of the said John Wilson; and that the injuries of the said plaintiff are due to the negligence and carelessness of the said defendant in employing the said pit boss and in said defendant's refusing and neglecting to furnish him with the necessary timbers at the entrance of his working place." Upon these allegations issues were formed, and the cause was tried. At the close of the appellant's testimony a motion for nonsuit was interposed by the respondent, and the motion was sustained. The ruling of the court in this respect is assigned as error. The evidence discloses that the appellant was a practical and experienced miner. The Fairfax mine consists of three veins, which extend north and south practically, and pitch from 60 to 69 degrees. The entrance is made from the bank of the bluff as it goes out to a river. The coal measures lie about 1,000 feet back from the river, and they run diagonally with the course of the river. The main entry or tunnel starts from the gravel bank near the river, and its main direction is nearly northeast. It is sometimes called east and west by the miners. As one goes into the tunnel, the south would be on the right hand and the north would be on the left of the course. The veins are tapped by a tunnel from beneath, so that when a miner reaches the vein he practically turns around to go up into the working. The following is a diagram of the working: The The chutes running up into the coal number from the entrance of the tunnel north and south. The first chute on the cut to the left is chute 1 north. The chutes to the right are chutes 1 to 4, inclusive, south. At a distance of 30 feet up from the gangway a counter gangway is driven. The chutes reaching the counter gangway are driven practically at right angles with the gangway, and the chutes extending from the counter gangway up into the coal are driven at an angle from the counter gangway of about 40 to 45 degrees, as is necessary in order to work the mine on account of the pitch of the vein. Crosscut No. 5. between chute No. 1 north and chute No. 1 south, counting from the counter gangway, was the place where Green was injured, and was 230 feet from the counter gangway, which would make it about 260 feet from the main gangway up chute 1 south. The chutes are driven from 3 to 5 feet wide and 5 feet high. The difference in the width is due to the thickness of the vein of coal, being driven up through the coal at an angle. The bottom and top of the coal form the two sides of the chutes. The terms for the rock formation, used in the evidence, are the "hanging wall" and the "foot wall." The top and the bottom of chutes and crosscuts were coal. reason the rock walls were designated the "hanging wall" and the "foot wall" is because of the pitch of the vein. The distance between chutes was generally about 30 feet, but that between chute 1 north and chute 1 south was about 70 feet. The distance between crosscuts was from 30 to 40 feet. The vein of coal pinches out near the surface, and runs into the gravel, which was about 40 feet above the fifth crosscut. As the miners reached the top of the vein, it was found that the coal became softer, and was not solid as below. John Wilson was pit boss. When Green commenced working, he worked in No. 1 vein, called the "Blacksmith" vein, five days; then went to work in the third vein, and worked in the crosscuts between chute 1 and chute 2 south. While working there, his timbers were packed to him at the entrance of the chutes below at the intersection of the gangway. He was then sent to work driving crosscut No. 3, between 1 north and 1 south, which was about 70 feet through. He drove that through, and also crosscut No. 4, and while driving those through he was instructed to drive clear through first and timber down afterwards, as the timber came from the chutes north, and he got his timbers for those crosscuts through chute 1. The pit boss told him to drive through and timber back, and that is the way he mined and timbered crosscuts 3 and 4. He then proceeded to drive crosscut 5, and drove about 25 feet, when he called for timbers. Receiving none, he quit,-laid off two days. This was owing to the coal being more or less soft, and he wanting to timber. The boss then told him to go through crosscut 4, and get his timbers in No. 1 chute north. He did so, and timbered up 20 feet in crosscut No. 5. He |