merely avers that the corporation has been illegally exercising certain enumerated franchises; and the judgment merely declares that the defendant is guilty of usurping rights and franchises, "as charged and alleged in the complaint," and adjudges that the defendant be excluded from "such rights, privileges, and franchises." The judgment, therefore, in that case does not dissolve the corporation, and does not undertake to do so. The said corporation, therefore, not having been dissolved, the court acquired no jurisdiction to appoint a receiver under said section 565 of the Code of Civil Procedure; and the appointment of said Booth as such receiver was without any authority, and void.

The only other question in the case is whether or not the petitioners herein, Yore et al., are by certain of their acts admitted by the stipulation to have been done, estopped from denying the jurisdiction of the court to appoint said receiver; or have been guilty of such laches as prevents them from maintaining this present ap plication. The facts with respect to this part of the case are these: 1. Alexander Vensano and others commenced an action against said Booth, as receiver, to receiver, to recover a claim against said corporation out of the funds in his hands; and in that action petitioners herein intervened and set up their prior claim to the fund. 2. An action was commenced by Booth, as receiver, against a number of claimants, including these petitioners, to determine their several claims to the fund; and in that action these petitioners answered, setting up a judgment which they had recovered against the said corporation, and asserting its priority over all other claims. 3. These petitioners commenced an action in Yuba county against the said corporation, in which, on the motion of said corporation, the said Booth, as receiver, was substituted as a defendant in the place of said corporation. 4. Until the tenth day of February, 1894, neither the petitioners nor their attorneys had seen or examined any of the papers or proceedings in said action numbered 32100, nor had any information concerning the same beyond.

what was imparted, if anything, by the pleadings, papers, and proceedings in other actions mentioned in the stipulation; and, 5. In the said action of these petitioners against said corporation in Yuba county the deposition of said Booth was taken on the ninth day of March, 1892, at the taking of which deposition the petitioners herein were represented by their attorneys, and in said deposition it was mentioned that said Booth was the receiver of said corporation, and was examined in respect to the papers of said corporation, etc.

The petitioners herein obtained judgment against the said corporation in said action, brought in Yuba county, for $13,826.66, on the third day of May, 1893; and on the 15th of January, 1894, a writ of execution was issued on said judgment, a copy of which was was delivered by the sheriff to said Booth, together with a notice that all debts, credits, etc., and personal property in his possession and owing to said corporation were attached; and said Booth answered to the sheriff that whatever money he had belonging to said corporation was held by him as receiver, and that he would not pay over any of the same, unless ordered to do so by the superior court by whom he was appointed. Thereupon petitioners herein served a notice upon the attorney general, and also upon Booth, that they would move the court to desist from taking any further proceeding under said appointment of Booth, as receiver, upon the ground that the court had no jurisdiction to appoint said receiver, which motion was afterward heard by said court and denied.

We do not think that by the acts just stated petitioners are precluded from maintaining the present proceeding. Of course, jurisdiction of the subject matter of an action cannot be obtained by consent; and the conduct of petitioners as above narrated does not include the necessary elements of estoppel, at least as to future action. Neither do we think that they have been guilty of such laches as destroys their right to apply for the writ sought in this proceeding. They never appeared in the original action in which the receiver was appointed, except

to move that the court desist from further proceedings therein. As to the other actions, Booth was acting as de facto receiver, and had the assets of the corporation in his possession, and said assets were about to be disposed of in said actions; and under these circumstances the appearance in said actions by petitioners for their own safety was not a concession of the validity of Booth's appointment as a receiver, or a ratification thereof. They were not bound in those proceedings to attack Booth's right to the possession of the assets-even if it be conceded that an opportunity to do so was there presented. But really petitioners were not in a position to attack the validity of Booth's appointment as receiver until they were brought into a hostile attitude to him by the levy of their execution. The case of Smith v. Superior Court, 97 Cal. 348, cited by respondent, is not in point. In the first place, that case was certiorari; and as certiorari seeks mainly to annul some thing that has been aiready done, and is in its nature appellate, the general rule is that the application must be made within the time allowed for an appeal; while the main purpose of prohibition is to restrain future proceedings. In the second place, in Smith v. Superior Court, supra, the petitioner had intervened in the original action in which the receiver had been appointed; had procured himself to be joined as plaintiff in said action, and had prayed judgment against the defendant therein, and demanded that the property of said defendant be sold by the receiver, and the proceeds applied by the receiver to the debts of the said defendant; and then, three years after the appointment of the receiver, he sought to have the appointment annulled. No such facts appear in the case at bar.

Under the above views there are no other points necessary to be noticed.

Let a peremptory writ issue as prayed for in the petition.

GAROUTTE, J., and HENSHAW, J., concurred.

Hearing in Bank denied.

[No. 21200. Department Two.-August 5, 1895.]

THE PEOPLE, RESPONDENT, v. J. G. LEYSHON, AP

PELLANT.

CRIMINAL LAW-FORGERY-INFORMATION-SINGLE OFFENSE.—An information charging a defendant with the crime of forgery of a note, and also with the crime of passing the forged note, states but single offense, and is not demurrable upon the ground that it charges two offenses.

a

ID.-SERIES OF ACTS CONSTITUTING OFFENSE.-Where, in defining an offense, the statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, and, notwithstanding each act may by itself constitute the offense, all of them together do no more. ID.-CONTINUANCE-DISCRETION.-The granting or refusing of a continuance in a criminal case is a matter in which much must be left to the discretion of the trial court, and it is only in cases where it is apparent that such discretion has not been wisely exercised that this court will reverse its action.

ID. CONTINUANCE FOR ABSENCE OF WITNESS-INSUFFICIENT SHOWING. Where a second continuance is asked for upon the ground that a witness for the defendant, whose deposition was taken upon the preliminary examination, is absent from the state, and beyond the jurisdiction of the court, it should be made to appear with reasonable certainty that the witness will return to the jurisdiction within such reasonable time as to prevent an unusual delay in the trial of the cause, and upon a showing merely that the defendant is informed that the witness will return, without giving the sources of his information, or assigning reasons for his belief, the court in its discretion may refuse the continuance. ID.-ADMISSION BY PROSECUTION-DEPOSITION AT PRELIMINARY EXAMINATION.—Upon an application for a continuance for the absence from the state of a witness whose deposition was taken at the preliminary examination, the prosecution cannot be required to admit the deposition as absolutely true, and no other or different credence is required to be given to it than is accorded to the sworn testimony of witnesses who appear personally in court. ID. REVIEW OF CONFLICTING EVIDENCE.-Where there is conflict in the evidence as to whether the defendant had authority, or supposed he had authority, to sign the names to the note alleged to be forged, a verdict of guilty of the forgery cannot be set aside upon appeal. ID.-ABSENCE OF AUTHORITY AS TO ONE FORGED NAME-SUPPORT OF VERDICT REVIEW UPON APPEAL.-Where there is no evidence to show any authority or belief of authority to sign the name of one of two persons, whose names were signed by the defendant to the note alleged to have been forged, the forgery of such name is sufficient to uphold a verdict of conviction of forgery, and rulings of the court upon the admission and rejection of testimony touching the business relations existing between the defendant and the other person whose name was signed to the note by him, and from whom he claimed to have authority, need not be considered upon appeal from a judgment of conviction.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. SMITH, Judge.

The facts are stated in the opinion.

Zue G. Peck, and John H. Foley, for Appellant.

The demurrer to the information should have been sustained, upon the ground that it charged two offenses. (Pen. Code, sec. 470.) The continuance should have been granted, as defendant was entitled to the oral testimony of the absent witness. The prosecution should have admitted the truth of the facts absolutely. (People v. Diaz, 6 Cal. 248, 250.) The evidence of the absent witness was material. One who puts the name of another to a note, believing from the course of their dealing that he has authority to do so, is not guilty of forgery, though he actually had no such authority. (3 Lawson's Criminal Defenses, 566; Rex v. Forbes, 7 Car. & P. 224; Reg. v. Beard, 8 Car. & P. 143; Parmelee v. People, 8 Hun, 623; 8 Am. & Eng. Ency. of Law, 459.)

Attorney General W. F. Fitzgerald, and Charles H. Jackson, Deputy Attorney General, for Respondent.

The demurrer to the information was properly overruled. (People v. Frank, 28 Cal. 513; People v. De la Guerra, 31 Cal. 459; People v. Harrold, 84 Cal. 567; People v. Gosset, 93 Cal. 641.) The showing made by defendant's affidavit was insufficient. (People v. Francis, 38 Cal. 188; People v. Ah Yute, 53 Cal. 613; People v. De Lacey, 28 Cal. 589; People v. Jocelyn, 29 Cal. 562.) The court had discretion as to the granting or refusing of the continuance, and did not abuse it. (Musgrove v. Perkins, 9 Cal. 212; Kneebone v. Kneebone, 83 Cal. 645; Barnes v. Barnes, 95 Cal. 177.) The right to introduce the deposition of an absent witness is given by the code, and did not exist prior to the adoption of the code, and this makes a change in the rules before existing as to an absent witness. (Pen. Code, sec. 686; People v. Francis, supra.) There is nothing in the code to