cured the Bank of California to be garnished in said action which it had brought against the said plumbing company, and the court found that in said action "a writ of attachment in due form of law was issued and placed in the hands of the sheriff of said city and county of San Francisco for service; and thereafter the said sheriff levied and served the said writ of attachment by notifying the plaintiff, the Bank of California, that all goods, moneys, and chattels of the defendant, the West Coast Plumbing and Supply Company, were levied upon and attached by him in pursuance to the terms of said writ"; but we are unable to find anywhere in the record any evidence that said writ of attachment ever issued, or was ever served upon the said bank. That being so, we see no basis for a judgment in favor of the said Mott Iron Works, respondent.

Respondent contends that whether or not the court committed any errors in its favor, or erroneously entered a judgment for it, still the appellant has no cause to complain, because he has shown no right or title whatever to the proceeds of said note. But this position is not tenable. The appellant's assignor, Arnold, was in possession of the note. He sent it to the Bank of California for collection, and it was collected by said bank and the proceeds placed to the credit of said Arnold; the court found that said note had been indorsed by the said plumbing company, although it erroneously found, without any evidence, that it had been so indorsed by said plumbing company to the Bank of California; and, under these circumstances, it cannot be said that no right at all to the note was shown to be in said Arnold. A party being in possession of a negotiable note, either payable to bearer or indorsed in blank by the person to whose order it is made payable, is at least prima facie the owner of the note-although, of course, such prima facie ownership may be swept away by proper rebutting evidence. If, on another trial, the respondent shows that it is entitled to said.

money by virtue of its attachment and judgment against the plumbing company, it will be in a position to attack the claim of the appellant or his assignor to said money; but, not having shown any title itself to the money, it is not now in a position to maintain a judgment in its favor.

It seems that the note sent by Arnold to the Bank of California was forwarded by the latter to the Union Savings Bank of Oakland for collection, and a letter written by the said savings bank to the Bank of California with regard to said note was introduced in evidence by the respondent, over the objection of the appellant. This objection should have been sustained, for we see no ground upon which that letter was in any way evidence in this case as against the appellant.

It seems that there was another note for eighty-seven dollars, made by one Brownlie, which was also inclosed in the letter from Arnold to the Bank of California. It does not appear to whom this note was made, and it is not mentioned in the complaint or in the findings; yet its amount seems to have been included in the judgment in favor of respondent. Appellant makes a point in his brief about the Brownlie note; but we cannot discover that the record in any way presents any question whatever about this note; and, therefore, it cannot be here considered.

The court properly everruled appellant's objections to the affidavit and undertaking on attachment.

There was sufficient evidence that the respondent was a corporation, and the objections to that evidence were properly overruled.

We do not see any other points in the case necessary to be now considered. Questions relating to the validity or admissibility of all judgment-rolls and pleadings in other cases offered or received in evidence, and all facts relating thereto, if such evidence shall be offered upon another trial, and all questions relating to other matters not expressly passed upon in this opinion, are to be regarded, if arising on another trial, as open questions.

Judgment and order appealed from reversed, and cause remanded for a new trial.

HENSHAW, J., and TEMPLE, J., concurred.

[S. F. No. 177. Department Two.-July 22, 1896.]

JOHN CHETWOOD, JR., RESPONDENT, v. THE CALIFORNIA NATIONAL BANK ET AL., DEFENDANTS. R. P. THOMAS, APPELLANT.

CORPORATIONS-INSOLVENT NATIONAL BANK-ACTION BY STOCKHOLDER AGAINST DIRECTORS-NEGLIGENT MISCONDUCT-FRAUD-Bill IN EQUITY-ACTION EX DELICTO.-When an action is brought by a stockholder of an insolvent national bank, after demand made upon the comptroller of the currency, upon the receiver, upon the bank and its board of directors, to prosecute the action, and their refusal to institute it, to recover jointly from three directors, constituting an executive committee of the board, for the use and benefit of the corporation, a sum alleged to have been lost through their negligent misconduct and collusive fraud in the management of its affairs, such action, though entitled a bill in equity for an accounting and settlement of a trust, is, in its nature, a legal action ex delicto against the defendants, sued as joint tort feasors, and not ex contractu, and the averment that defendants promised faithfully to discharge their trust with care and attention is needless, and does not affect the nature of the action. ID. PLEADING-JOINT NEGLIGENCE OF COMMITTEE VARIANCE-FINDINGS-NEGLIGENCE OF PRESIDENT.-When the charge in the complaint is of the joint negligence of the defendant as constituting an executive committee of the board of directors of the bank, findings which omit to pass upon the joint negligence and misconduct charged, and which pass upon the negligence of one of the defendants as president of the bank, are not responsive to the pleadings, and show a material variance from the cause of action pleaded, and require a reversal of the judgment, and the variance may be objected to upon appeal from the judgment alone, and the fact that it might have been cured by amendment does not make the variance less fatal to the validity of the judgment. ID.-ACTION BY SHAREHOLDER-SUIT IN BEHALF OF CORPORATION.-An action by a shareholder to enforce corporate rights must be regarded as a suit brought on behalf of the corporation, and the shareholder can enforce only such claims as the corporation could enforce; and the essential character of the cause of action remains the same, whether the suit be brought by the corporation or by a shareholder. [D.-SETTLEMENT WITH TORT FEASOR-RETRAXIT-RELEASE OF JOINT TORT FEASORS-When several tort feasors have been sued jointly in a single action, a payment made by one of them, however large or small, in settlement and discharge of the claim against him, and

a retraxit of the cause of action as against him, operates to release all of the defendants sued as joint tort feasors. ID.-DAMAGES-JUDGMENT IN JOINT ACTION-SATISFACTION AND RELEASE. In a joint action for damages against several defendants, where all are held liable, the judgment must be for joint damages; and a satisfaction and release of such judgment as to one of the defendants operate in law as a satisfaction and release of all of the defendants.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. D. J. MURPHY,

Judge.

The facts are stated in the opinion of the court.

J. A. Stephens, for Appellant.

The judgment should be reversed, as the case found by the findings is not the case presented by the pleadings. (Bryan v. Tormey, 84 Cal. 126; Curtiss v. Bachman, 84 Cal. 216.) This objection may be taken on an appeal from the judgment-roll alone. (Putnam v. Lamphier, 36 Cal. 151.) The action being against three tort feasors for damages for negligence, the release of two tort feasors for a valuable consideration released the appellant. (McCool v. Mahoney, 54 Cal. 491; Beal v. Finch, 11 N. Y. 128; Halsey v. Woodruff, 9 Pick. 555; Hillman v. Newington, 57 Cal. 56; Urton v. Price, 57 Cal. 270; Tompkins v. Clay Street R. R. Co., 66 Cal. 163; Livingston v. Bishop, 1 Johns. 290; 3 Am. Dec. 330.)

A. W. Thompson, John Chetwood, Jr., and Thompson & Thompson, for Respondent.

There is no variance in the decision from the pleadings. As plaintiff had the right of election as to who to make parties defendant, he had the resulting right to dismiss from the action one or more, and take action against the remaining obligors. (Heppe V. Johnson, 73 Cal. 265; People v. Evans, 29 Cal. 429; People v. Love, 25 Cal. 526; Cook on Stocks and Stockholders, sec. 748.) This is not an action in tort, but is a bill in equity for accounting of a trust. (Trustees etc. v. Bosseiux, 3 Fed. Rep. 833; Brinckerhoff v. Bostwick, 88 N. Y. 58, 59; Hand

V. Atlantic Nat. Bank, 55 How. Pr. 231; Ackerman v. Halsey, 37 N. J. Eq. 356; United States v. Dewey, 39 Fed. Rep. 251; Stark v. Wellman, 96 Cal. 400; Asevado v. Orr, 100 Cal. 300; Thelin v. Stewart, 100 Cal. 374; Walsh v. Chicago etc. R. R., 42 Wis. 23, 26; 24 Am. Rep. 376; Rapalje and Lawrence's Law Dictionary, and Abbott's Law Dictionary, title "Tort"; Bigelow on Torts, 559-732; Leed's Estate etc. Co. v. Shepherd,L. R. 36 Ch. Div. 787, 807; Concha v. Murrieta, L. R. 40 Ch. Div. 553; Stephens v. Overstolz, 43 Fed. Rep. 465; 16 Am. & Eng. Ency. of Law, 388, note.)

HENSHAW, J.-This is an appeal from the judgment

alone.

Plaintiff, as a stockholder of the California National Bank, prosecuted this action against certain directors of the bank to recover from them, for the use and benefit of the corporation, the sum of four hundred thousand dollars, alleged to have been lost to the corporation by their negligent misconduct in the management of its affairs.

The bank had become insolvent before the commencement of the action, and a receiver was in charge of its affairs. Plaintiff made demand upon the comptroller of the currency, upon the receiver, upon the corporation, and upon its board of directors to prosecute the action, and upon their refusal it was instituted in his name as plaintiff.

The complaint, while it is entitled a bill in equity for an accounting and settlement of a trust, contains, as will hereafter be made manifest, nothing more than a charge ex delicto against certain directors for a breach and nonperformance of their duties. The three directors whose conduct is attacked, and who are the defendants against whom a judgment is sought, are Richard P. Thomas, president of the corporation, Robert R. Thompson, vice-president, and Robert A. Wilson, a director; the three constituting the executive committee