retired. They were therefore too late, and must be disregarded.

There was no error in admitting in evidence the statements of the warehouseman, Merrill, as to the ownership of the wheat loaded on the barge. The statements served simply to identify the wheat removed, end, being made at the time of the removal, they were a part of the res gestæ. Besides, if it was error to admit the statements, it was harmless, as it was otherwise shown. beyond controversy that the wheat removed was the wheat of Hays & Garoutte.

The judgment and order should be affirmed.

VANCLIEF, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

HENSHAW, J., McFarland, J.

TEMPLE, J.-I concur in the judgment.

A petition for a hearing in Bank having been filed, the same was denied, and from the order refusing the hearing in Bank the following dissenting opinions were filed on the 14th of August, 1895:

BEATTY, C. J.-I dissent from the order denying a rehearing of this cause. Not because I think the plaintiff failed to prove facts entitling him to a judgment, but because, in my opinion, the cause was tried in the superior court, and has been decided here, upon an erroneous view of the law.

The issues of fact were submitted to the jury under instructions to the effect that if the bank held the warehouse receipt, properly indorsed by plaintiff's assignors, as security for a loan at the time defendants purchased and took possession of the wheat, the plaintiff could not maintain the action.

It is conceded, in the opinion of the court, that this theory was correct, but the judgment is affirmed on the

ground that the defendants failed to prove the existence of the bailment at the date of the conversion. In my opinion the existence of such a bailment at the date of the conversion was no defense to an action to recover compensation for an injury to the reversionary interest of the pledgors, commenced after payment of the debt and return of the pledge, and, therefore, I am satisfied that the actual result of the litigation is just. But I cannot assent to the grounds upon which the decision of this court is placed. If the theory of the defense was a sound one it is clear to my mind that the facts were fully proved.

TEMPLE, J.-I dissent from the order refusing a rehearing, because I am convinced that under the instructions the verdict is not warranted by the evidence. I agree with the chief justice as to the law which ought to have governed at the trial

[No. 19526. Department One.-July 16, 1895.]

C. F. BRENOT, RESPONDENT, v. GEORGE E. ROBINSON, CONSTABLE, ETC., APPELLANT.

CLAIM AND DELIVERY-ACTION AGAINST CONSTABLE ALLEGATION OF DEMAND. In an action of claim and delivery against a constable, to recover the possession of personal property which had been seized by him under a writ against another, an allegation in the complaint that, prior to the commencement of the action, the plaintiff had made a demand on the defendant for the possession of such property, is a sufficient averment of the fact of such demand, as against a general demurrer. If the form of the demand did not comply with the requirement of section 689 of the Code of Civil Procedure, as amended in 1891, the defendant could traverse the allegation in his answer, and could also object to the proof when offered at the trial. ID. FINDING AS TO VALUE.-In an action of claim and delivery of several articles, the values of which were alleged in the complaint, both separately and in the aggregate, the failure of the court to find the specific value of each article does not invalidate a judgment for their aggregate value, if the defendant, in his answer, only took issue upon the aggregate value, and it does not appear from the record that any evidence was offered at the trial regarding the value of any of the property.

APPEAL from a judgment of the Superior Court of Orange County, and from an order refusing a new trial. J. W. TOWNER, Judge.

The facts are stated in the opinion of the court.

Charles S. McKelvey, for Appellant.

R. Melrose, and James J. Scarborough, for Respondent.

HARRISON, J.-Action of claim and delivery. The complaint alleges that the plaintiff is the owner and entitled to the possession of four mules of the value of four hundred dollars; two double sets of harness of the value of seventy-five dollars; one farm wagon of the value of sixty dollars, and one pair of lead bars, of the value of five dollars; all of said property being of the aggregate value of five hundred and forty dollars; that on October 9, 1893, the defendant, as constable of Santa Ana township, in Orange county, without the plaintiff's consent and against his will, took said articles of personal property from the possession of the plaintiff; that before the commencement of this action the plaintiff demanded of the defendant the possession of said articles of personal property, but the defendant refused to deliver the same. Upon the trial of the action the court found that the plaintiff was the owner of the property, and that the aggregate value of said property at the time it was taken was four hundred and twenty-five dollars, but did not find the particular value of each article. Judgment was rendered in favor of the plaintiff for the possession of the property, and, in case delivery thereof could not be had, that he have and recover from the defendant the sum of four hundred and twenty-five dollars.

1. The defendant filed a general demurrer to the complaint, and now urges that the demurrer should have been sustained on account of the absence of an averment that the plaintiff had made a claim for the property in

the form prescribed by section 689 of the Code of Civil Procedure, as amended in 1891. (Stats. 1891, p. 20.) It is unnecessary to determine whether the owner of property from whose possession it is taken by the officer, under a writ against another, is a "third person" within the meaning of this section, or whether in such case any demand is essential to maintaining the action. (See Wellman v. English, 38 Cal. 583; Sharon v. Nunan, 63 Cal. 234.) The provisions of the section prescribe only the form in which the claimant is to make a demand in those cases in which the demand is requisite; and the allegation in the present case that before commencing the action the plaintiff made a demand upon the officer for the property is, as a matter of pleading, a statement of the fact of demand. If the form of the demand did not comply with the section of the code the defendant could traverse the allegation in his answer, and could also object to the proof when offered at the trial. In Paden v. Goldbaum (Cal., Sept. 4, 1894), 37 Pac. Rep. 759, it was held that, even in the absence of an averment in the complaint that any demand had been made upon the officer, evidence of the demand might be given at the trial upon the ground that the provisions of the section are intended for the benefit of the officer, and that a failure to comply with the section is a matter of defense to be pleaded by him.

2. The failure of the court to find the specific value of the several articles did not tend to render the judgment invalid. In Whetmore v. Rupe, 65 Cal. 237, it was held that this omission did not authorize a reversal of the judgment, the court saying: "By section 627 of the Code of Civil Procedure the jury are to find the value of any specific portion of the property only ‘if so instructed.' Error can, therefore, only arise in a case where such instruction would be pertinent and proper, and the instruction was asked and refused." The defendant herein did not in his answer set forth the value of the several articles, and took issue with the plaintiff

OVIII. Cal.-10

only upon the aggregate value of all of the articles, and it does not appear that any evidence was offered at the trial regarding the value of any of the property. The judgment and order are affirmed.

VAN FLEET, J., and GAROUTTE, J., concurred.

[No. 19496. Department One.-July 16, 1895.]

RIVERSIDE LAND & IRRIGATING COMPANY, RESPONDENT, v. MERCEDES ALVARADO JENSEN, EXECUTRIX ETC. OF CORNELIUS JENSEN, DECEASED, ET AL., APPELLANTS.

QUIETING TITLE-EVIDENCE-JUDGMENT IN PRIOR ACTION.-In an action to quiet title against the executrix and devisee of a deceased person, the plaintiff may introduce in evidence the judgment-roll in a prior action against the defendant's testator, quieting his title to the lands in controversy, without specially pleading the judgment. ID.-ADVERSE POSSESSION-ESTOPPEL.-The effect of the judgment in such prior action was to estop the defendant therein, and those claiming under him, from asserting in the subsequent action a title adverse to the plaintiff anterior to the entry of that judgment.

APPEAL from a judgment of the Superior Court of San Bernardino County and from an order refusing a new trial. JOHN L. CAMPBELL, Judge.

The defendant in the present action was executrix of the last will of Cornelius Jensen, deceased, and the devisee thereunder of the land the title to which was sought to be quieted. The further facts are stated in the opinion of the court.

Paris & Allison, and Rolfe & Rolfe, for Appellants.

R. E. Houghton, Frank F. Oster, and J. W. Curtis, for Respondent.

VAN FLEET, J.-Action to quiet title. Plaintiff had judgment, from which and an order denying her motion for a new trial defendant appeals.