to maintain the action, upon the ground that the findings and evidence show that he made himself a stockholder after the occurrence of the injuries complained of, for the express purpose of bringing this action; that he acquired but a small amount of stock at that time, and that he never had any substantial interest in the corporation at any time.

The finding of the court is, however, that he was at all times a stockholder, and as this finding is not attacked in the specifications of grounds in the statement on motion for a new trial, we cannot look at the evidence; and in construing the finding we must hold that it means that he was a stockholder in a substantial sense.

Objection is made to the form of the judgment or judgments upon various grounds, but these are objections which should have been made to the complaint. Having waived any objection to the complaint on the ground of misjoinder, etc., I think the objection to the several judgments on account of their mere form comes too late. In form they follow the complaint, and, if the several judgments had been for the respective amounts for which the defendants were liable, the form in which they were entered would have afforded no substantial ground of complaint.

In view of these conclusions upon the main points in controversy, most of the other assignments of error become immaterial, and, so far as the points not herein particularly discussed seem likely to arise upon a new trial, I see no substantial error calling for particular discussion.

To summarize the above views, my conclusion is that the record sustains, or fails to sustain, the findings and conclusions of the superior court in the following par

ticulars:

1. That the defendants Hayward, Hobart, and Levy formed a fraudulent combination and agreement for mining and milling the ores of the Hale & Norcross Silver Mining Company, but that the other directors of the mining company were not parties to this agreement,

but were merely negligent in the performance of their duties, and are, therefore, chargeable only with such negligence, and are not chargeable with any actual fraud.

2. That the Mexican and Nevada mills were under the control of Hayward, Hobart, and the Nevada Mill & Mining Company, but that it is not shown that the Vivian mill was under their control.

3. That Hayward, Hobart, and Levy, with the acquiescence and consent of the officers of the Hale & Norcross company, controlled the affairs of that company.

4. That Hayward, Hobart, and Levy, in pursuance of their agreement aforesaid, caused a quantity of inferior and worthless ores to be extracted from the mine and to be milled, after being mixed with ores of a higher grade.

5. That the Hale & Norcross company paid $7 per ton for milling said ores; that the actual cost of milling the same was but $4.50 per ton; that, by reason of their fraud, as aforesaid, the said defendants were entitled to receive only the actual cost of milling said ores; that, by reason of having been required to pay $7 per ton for milling said ores, the Hale & Norcross company had sustained damage in the amount of $210,197.50.

6. That the evidence is insufficient to sustain the finding of the court that the Hale & Norcross company had sustained damage by reason of the improper milling of the ores in the amount of $789,618, and that the actual amount of damage sustained thereby cannot be determined from the findings of the court.

7. That the Nevada Mill & Mining Company, not having been served with process, was not before the court as a defendant.

The cause is, therefore, remanded to the superior court with the following directions, viz: The judgment appealed from is set aside, and the superior court is directed to enter a judgment, as of the date of its former judgment, against Alvinza Hayward and H. M. Levy for the sum of $210,197.50, with interest from that date, upon the issue presented by the claim for having paid

an excessive price for milling the ore in the Mexican and Nevada mills; and upon that issue the order denying a new trial as to these appellants is affirmed. As to the other appellants, except the Nevada Mill & Mining Company, the order denying a new trial as to this issue is reversed and a new trial thereon ordered. Upon the issue presented by the claim for damages sustained by reason of the imperfect and fraudulent milling, the order denying a new trial is set aside as to all the appellants, and the court is directed upon the evidence already taken in the case, and such other evidence as may be presented by either party, to make findings in accordance with the views herein before expressed. Upon the amount, if any, of such damage sustained by the Hale & Norcross Company, in addition to finding the value of the ore delivered to the mills, the court is directed to find the amount and value of the bullion that should have been returned therefor. The court should also find what amount of this value of the ore delivered to the mills was necessarily lost in working, or would not under fair milling be separated from the baser matter; and also the amount of the money, if any, received by the mills. from the working or sale of the tailings or residue of the

ores.

Until the Nevada Milling and Mining Company has been brought before the court the court will make no trial of the issues against that company.

HARRISON, J., VAN FLEET, J., HENSHAW, J., TEMPLE, J., and MCFARLAND, J., concurred.

GAROUTTE, J., concurring.-I concur in that portion of the judgment which is affirmed; but dissent from the opinion of the court wherein it is held that the evidence is insufficient to support the finding of fact to the effect that 74.6 per cent of the car sample assay is a fair return to the Hale & Norcross Company. The actual return to this mining company by the milling company was but 52 per cent of the car sample assay.

This was not

enough. No argument or citation of facts is necessary to prove it. Everybody knows it. But the all-important question is, how much bullion in excess of this 52 per cent should have been returned to the mining company under the evidence found in this record? There is the rub. Mr. Lyman, superintendent of the Consolidated Virginia mine, and one of the principal witnesses for the defense, stated that he would hope to get a return of 65 per cent of the car sample assay. And, if I had been the trial judge, upon this and other evidence introduced, I should have recognized the justice of a return to the mining company to that amount at least. But the true rule to be invoked by a justice of this court, in determining the sufficiency of the evidence to support a finding of fact made by a trial court, is not what such justice would have done upon the evidence, if sitting as a trial judge, but does the evidence create a substantial conflict? And the question of the presence of a substantial conflict is in no way dependent upon the great number of witnesses upon the one side, and the limited number upon the other; for it is often the case that one shall prevail against the many. For the foregoing reasons, and many others unnecessary to detail, in a case like this, the finding of a fact by a trial court should not be set aside without the soundest and most convincing reasons. The opposite conclusion should be so plain that a mere statement of the evidence would indicate it. It should not be necessary to resort to an elaborate and complex analysis of the evidence in detail to prove it.

The witness, Holden, testifies that the mining company should have had a return of 85 per cent upon the basis of the pulp sample assay. If we allow a variation of 10 per cent between the car sample assay and the pulp sample assay, then under this testimony there should have been a return to the mining company of about 76.5 per cent of the car sample assay. It is attempted to reduce this percentage by a claim of allowance or discount for moisture and evaporation. There

appears to have been but little importance attached to this question of moisture during the progress of the trial, and all indications point to it as somewhat of an afterthought. But, however that may be, I think a slight reduction would satisfy its claims; and, in view of this testimony, taken in connection with that of Mr. Mackay and others, I think there is sufficient evidence in the record to support the finding which the majority of the court hold to be without support.

Rehearing denied.

[No. 15690. Department Two.-August 5, 1895.]

v.

ELIZA YORE ET AL., PETITIONERS, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT.

CORPORATIONS-QUO WARRANTO-USURPATION OF FRANCHISE-DISSOLUTION.-In a proceeding in quo warranto against a mutual life association, organized upon the assessment or co-operative plan, for the purpose of paying to the nominee of such members as may die stipulated sums of money, to be collected of surviving members, a judgment by which the corporation was excluded from the privilege and franchise usurped by it of making ordinary contracts of life insurance, does not work a dissolution of the corporation, when it was not alleged or found that the defendant was usurping the franchise of being a corporation, and the judgment did not exclude it from exercising that franchise.

ID. JUDGMENT FOR FINE-ACTION BY STATE TO APPOINT RECEIVER— JURISDICTION-PROHIBITION.-The fact that a fine was imposed upon the corporation in the quo warranto proceedings, payable to the people of the state, does not authorize the state to commence a subsequent action to appoint a receiver of the corporation; and the court has no jurisdiction to appoint such receiver under section 565 of the Code of Civil Procedure, which only authorizes such action to be commenced upon the dissolution of the corporation, and the court will be restrained by writ of prohibition from further proceeding with respect to a receiver of the property of the corporation. ID.-PETITION BY CREDITORS FOR PROHIBITION-ESTOPPEL-LACHES.Creditors of the corporation who petition for a writ of prohibition to prevent such receiver from acting are not estopped from presenting such petition by reason of the fact that they intervened in an action brought against the receiver by other creditors to recover a claim against the corporation, in which they set up a prior claim to the funds in his hands; nor by reason of the fact that the receiver