$6,540.46 and costs. Defendant on the 12th of January, 1894, gave notice of a motion to set aside the default and vacate the judgment, which motion was granted January 18th, upon condition that defendant .pay to plaintiff his costs in the action up to that date.

In addition to an affidavit of merits, defendant's affidavits upon the motion showed that defendant, its officers, and its regular attorney, are residents of San Francisco; that it takes two days to communicate by mail with Susanville, where the cause is pending; that defendant's counsel in San Francisco supposed the time to answer had been extended by stipulation, and that the court would grant further time to answer, until defendant could have the benefit of the further bill of particulars to aid it in answering the 21 causes of action which the complaint contained, while the assistant counsel of defendant, who resided at Susanville, where the cause was pending, made the mistake of supposing that the order for further particulars operated to extend the time for answering for 10 days from the date of its entry, until it was too late to interpose an answer within the time allowed. That this was negligence on the part of the defendant is certain. The court below, in the exercise of the discretion confided in it, in view of all the circumstances, deemed it wise to open the default and permit an answer.

We think the action of the court came very near the border line which divides the exercise of discretion from the abuse of such discretion, but, in view of the fact that plaintiff, by his failure in the first instance to furnish a proper bill of particulars, was in some sort the cause of the failure to answer in time, we do not feel called upon to reverse the ruling. It has been said that the power of the court should be freely and liberally exercised, under section 473 of the Code of Civil Procedure, to mold and direct its proceedings so as to dispose of cases upon their substantial merits, and its order will not be reversed unless its power has been exercised in a manner which is calculated to defeat rather than advance the ends of justice. Buell v. Emerich, 85 Cal. 116, 24 Pac. 644. A default inadvertently permitted by a party having a substantial defense presents a case in which great latitude should be extended to the discretion of the court by which the default was set aside. Hitchcock v. McElrath, 69 Cal. 634, 11 Pac. 487; Burns v. Scooffy, 98 Cal. 271, 33 Pac. 86; Watson v. Railroad Co., 41 Cal. 17; William Wolff & Co. v. Canadian Pac. Ry., 89 Cal. 332, 26 Pac. 825. The order appealed from should be affirmed.

We concur: BELCHER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed.

Pen. Code, 772, provides for the removal of public officers, by an accusation in writing, presented to the superior court. Const. art. 6, § 4, gives the supreme court appellate jurisdiction in all criminal cases prosecuted by indictment or information. Held that, a prosecution under section 772 not being by indictment or information, the supreme court has no appellate jurisdiction thereof.

Department 1. Appeal from superior court, Sacramento county; A. P. Catlin, Judge.

An accusation was filed by D. J. McGowan against William Curtis under Pen. Code. § 772, for the removal of the latter from office. The accusation was dismissed, and McGowan appeals. Appeal dismissed.

Holl & Dunn, for appellant. White, Hughes & Seymour and Johnson & Johnson, for respondent.

HARRISON, J. While the respondent held the office of supervisor of the Fourth district of the county of Sacramento, an accusation was filed against him in the superior court for that county by D. J. McGowan, under the provisions of section 772 of the Penal Code, charging him with collecting illegal fees and neglecting to perform his official duties. To this accusation the respondent filed a demurrer upon various grounds, which was sustained by the court, and, the accuser declining to amend his accusation, the court entered a judgment dismissing the proceeding. From this judgment McGowan has appealed. The respondent has moved to dismiss the appeal upon the ground that an appeal from the action of the court under this section of the Penal Code is unauthorized.

The charge against the respondent is of a public offense,-a neglect of official duty, or misdemeanor in office,-and the proceeding against him is a criminal proceeding in the nature of an impeachment. In re Marks, 45 Cal. 199. At the common law an officer guilty of neglect of official duty was liable to indictment and punishment by removal

from office. Throop, Pub. Off. c. 32; Bac. Abr. "Offices & Officers," N. See, also, opinion of Kent, J., in note to People v. Denton, 2 Johns. Cas. 275. Article 4, § 18, of the constitution of this state, after providing that certain state officers shall be liable to impeachment for misdemeanor in office, declares: "All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide." By section 772 of the Penal Code the legislature has provided a manner for the trial of certain misdemeanors in office, by authorizing an accusation in writing, verified by the oath of any person, to be presented to the superior court, and if, upon a hearing thereon, after a citation to the accused, the charges are sustained, the court is authorized to remove the accused from office. These proceedings are intended to be summary, and, as the legislature has made no provision for a review of the action of the superior court, its judgment is final. See Appeal of Houghton, 42 Cal. 35; Bixler's Appeal, 59 Cal. 550. By article 6, § 4, of the constitution the supreme court is given appellate jurisdiction "in all criminal cases prosecuted by indictment or information in a court of record on questions of law alone." Section 682 of the Penal Code declares that "every public offense must be prosecuted by indictment or information, except (1) where proceedings are had for the removal of civil officers of the state." The "information" here authorized is that named in the constitution (article 1, § 8) as the equivalent of an indictment, and which is to be prepared by the district attorney under the provisions of section 809 of the Penal Code. The case of In re Marks, supra, was prosecuted under the provisions of the act of March 14, 1853 (St. 1853, p. 40), and by the provisions of section 6 of that act either party might appeal to the supreme court as in other cases. The provisions of this section ceased to exist upon the adoption of the codes, and section 1235 of the Penal Code authorizes an appeal to this court only in such criminal actions as amount to a felony. As the appellate jurisdiction of this court in criminal cases given by the constitution extends only to such as are prosecuted by indictment or information, we have no jurisdiction to entertain the present appeal. The appeal is dismissed.

train for a station to which the fare was 10 cents each. Plaintiff tendered the conductor 20 cents, as the fare for all. He told her that unless they paid 10 cents each they would have to get off. Plaintiff said, if the others had to get off, she would also. Thereupon the conductor handed the money back, and at the next station they all got off. Held, that defendant was not liable to plaintiff for damages.

2. Neither the fact that, at a previous time, another conductor allowed the three girls to ride for 10 cents, or that another passenger said she would pay the fare for the other girls, without tendering it, rendered defendant liable.

3. Civ. Code, § 488, requires every conductor to wear on his cap, or other conspicuous place, a badge indicating his office, and provides that no conductor without such badge is authorized to demand or receive fare from a passenger. Held, that where a passenger who refuses to pay fare recognizes the conductor as such, and does not refuse to pay fare because of the absence of such badge, or object to its absence, and the conductor puts him off the train, the company is not liable because such conductor wore no badge.

4. A verdict for $500 in favor of a girl 10 years old who, with three other girls, was put off a railroad train, at a station, for failure to pay fare, is excessive, in the absence of evidence justifying exemplary damages, or taking the case out of the rule given in Civ. Code, § 3333.

HARRISON, J. This action was brought in behalf of the plaintiff, an infant of the age of 10 years, to recover damages for having been expelled from a train of the defendant, upon which she had taken passage as a pas senger. At the close of the testimony on behalf of the plaintiff, the defendant asked for a nonsuit, which was denied, and, after other testimony had been introduced, the cause was submitted to the jury, who rendered a verdict in favor of the plaintiff for $500. A motion for a new trial was made and denied, and the defendant has appealed.

1. The motion for a nonsuit should have been granted. The plaintiff, in company with two younger sisters, and another girl about her own age, were attending school at Tropico, in the county of Los Angeles, and, on the morning in question, had taken passage upon the cars of the defendant, at Bond station, for the purpose of being carried to Tropico station, about a mile and a quarter distant. The rate of fare between Bond station and Tropico was 10 cents. When the conductor asked for their fare, the plaintiff tendered him 20 cents as the fare for herself and her two sisters. The conductor told her that the fare was 10 cents for each of them. and that unless they paid that amount of fare

they would have to get off. He also told the plaintiff that the 20 cents was enough to pay for two of them, but that the others would have to get off. The plaintiff then told the conductor that she did not like to go on without the others, and that, if they got off, she would get off too. Thereupon the conductor handed the money back to plaintiff, and when the next station was reached he stopped the train, and the plaintiff, with her sisters and the other girl, got off. There was no evidence of the use of any violence or oppression or force towards the plaintiff on the part of the defendant or its employés. On the contrary, the entire evidence shows that the conductor was civil and gentle in his intercourse with the plaintiff.

The plaintiff's right of action is limited to the conductor's treatment of herself alone, and as, instead of accepting the offer of the conductor to ride for the fare tendered by her, she chose to take back the money, and get off the car with her sisters, rather than go on without them, her leaving the car must be regarded as a voluntary act on her part. The fact that, on a previous occasion, another conductor had allowed the three girls to ride for 10 cents, did not render the act of the conductor in demanding the regular fare on this day improper, or place the defendant in the wrong. Nor is the plaintiff entitled to recover from the defendant because another passenger said that she would pay the fare for the other girls. No tender of fare was made by her, and the plaintiff, instead of availing herself of the offer, testifies that she did not hear it made.

2. Section 488, Civ. Code, is as follows: "Every conductor, baggage-master, engineer, brakeman, or other employee of any railroad corporation, employed on a passenger train or at stations for passengers, must wear upon his hat or cap, or in some conspicuous place on the breast of his coat, a badge, indicating his office or station, and the initial letters of the name of the corporation by which he is employed. No collector or conductor, without such badge, is authorized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or property." There was evidence tending to show that the conductor, on this morning, did not wear any badge upon his cap, and the court gave to the jury the following instruction: "Every conductor employed on a passenger train must wear upon his hat or cap, or in some conspicuous place upon the breast of his coat, a badge indicating his office or station, and the initial letters of the name of the corporation by which he is employed; and no conductor without such badge is authorized to demand or receive from any passenger any fare or ticket, or exercise any of the powers of his office, and no conductor without such badge has any authority to meddle or interfere with any passenger or proper

ty," and, further, instructed the jury: "If you find that the conductor in this instance did not have upon his cap or breast such a badge, then he had no right to meddle or interfere with the plaintiff; and if he did interfere, and compelled her to leave the train, such act would be unlawful, and your verdict should be for the plaintiff."

The

The object of this section is not to limit the power of the corporation in the conduct of its business, but it is for the protection of passengers, by requiring a designation of the person whom they are to recognize as entitled to receive their fare, or to represent the corporation in other respects. The restraint which the section places upon the authority of a conductor is to be limited to the matters specified therein, and is not to be extended to cases not included within the language of the section. Without a badge indicating his office, the conductor is not "authorized" to demand or receive any fare or ticket from the passenger, or to exercise any of the powers of his office or station. The passenger, in such case, would be justified in refusing to pay him the fare, or to surrender to him his ticket, or to comply with his orders; but it does not follow that if the passenger recognizes him as the conductor, and pays his fare, or complies with his directions, he can recover the fare back from the corporation, upon the ground that the conductor was not “authorized" to receive it, or maintain an action against the corporation for complying with the directions of the conductor, on the ground that he was not authorized to give them. passenger does not become entitled to free transportation upon the railroad by reason of the omission of the conductor to put on this badge, and if, after recognizing him as the conductor, and treating with him as such, when he is without the badge, the passenger would avail himself of the protection intended by this section, he should place his refusal to pay the fare, or to comply with his directions, upon this ground, in order that the conductor might have an opportunity to obviate the objection. The plaintiff herein made no objection to paying the fare to the conductor at the time he demanded it, but recognized him as sufficiently authorized to receive it, irrespective of the absence or presence of a badge. Nor did she, at the time she got off the car, make any objection to so doing upon the ground that the conductor was without his badge. As she was not entitled to ride upon the road without paying her fare, she was deprived of no right by being excluded from the cars for failure to make such payment; and, if there was any reason why she should not have been excluded, she ought then to have stated the reason. After having complied with the order of the conductor, without making this objection, she cannot afterwards be allowed to raise an objection which, if then stated, might have been obviated. The latter clause of the first of the above instructions goes beyond the language

of the Code. The language of the section is that "no other officer or employee without such badge has any authority to meddle or interfere with any passenger or property," whereas the jury were told that "no conductor without such badge has any authority to meddle or interfere with any passenger or property." The use of the term "other officer or employee" expressly excludes the conductor from the limitations of authority contained in this clause, and confines such limitation to the acts specified in the preceding clause of the sentence.

3. We are of the opinion that the verdict was excessive. Without reviewing the evidence, it is sufficient to say that there was no evidence before the jury which justified them in giving punitory or exemplary damages, or to take the case out of the rule given in section 3333 of the Civil Code. See, also, Tarbell v. Railroad Co, 34 Cal. 616; Gorman v. Southern Pac. Co., 97 Cal. 6, 31 Pac. 1112. The judgment and order are reversed.

*

Defendant pleaded guilty to a charge of burglary in the first degree, and the judgment recited that, "whereas defendant has been convicted of the crime of burglary in the first degree, it is ordered," etc. Held, that the judgment was valid, though the minutes of the court did not show that any evidence was heard to prove the degree of the crime of which defendant was found guilty, there being nothing in the minutes to contradict the recitals of the judgment.

John Woods, convicted of burglary in the first degree, petitioned for a writ of habeas corpus. Petition dismissed.

C. T. Jones, for petitioner. H. F. Carter, Third Deputy, for respondent.

GAROUTTE, J. Petitioner was charged by information with the crime of burglary. A prior conviction for a like offense was also alleged against him. He pleaded guilty, and the judgment under which he is held recites that "whereas the defendant, John Woods, has been convicted of the crime of burglary in the first degree and a prior conviction of felony, it is ordered that he be imprisoned in the state prison for the term of twenty years." The judgment, upon its face, is a valid and legal judgment, and one which the court clearly had power to make; but petitioner insists that the minutes of the court taken at the time defendant pleaded, and also when judgment was pronounced, fail to indicate that any evidence was heard tending to show the degree of the crime of which defendant was found guilty. There is nothing in the point. The judgment itself

recites that the defendant was convicted of burglary of the first degree; and, conceding that the minutes of the court could be introduced upon this hearing for the purpose of contradicting recitals found in the judgment, still we find nothing in those minutes of a contradictory character. They are silent upon the question, and under such circumstances recitals in the judgment that the petitioner was convicted of the crime of burglary in the first degree must control. We see no ground entitling the prisoner to his discharge. The petition is dismissed, and petitioner remanded.

(Supreme Court of California. Sept. 17, 1895.) REPLEVIN-COMPLAINT.

A complaint in replevin, which fails to state that plaintiff is the owner or is entitled to the possession of the property at the commencement of the action, is defective.

Department 1. Appeal from superior court, Glenn county; Seth Wellington, Judge. Action by James Masterson, Jr., against P. H. Clark, sheriff of the county of Glenn, to recover the possession or value of certain personal property. Plaintiff had judgment, and defendant appeals. Reversed.

Ben. F. Geis, for appellant. Charles L. Donohoe, for respondent.

PER CURIAM. The plaintiff brought this action to recover the possession or value of 300 head of sheep. The complaint was filed September 20, 1893, and it avers that on the 8th day of that month plaintiff was the owner and entitled to the possession of said sheep; that on the said 8th day of September defendant, without plaintiff's consent, and wrongfully, came into possession of said property, and still retains possession of the same; that on the 11th day of said month plaintiff demanded of defendant the possession of said sheep, but to deliver the possession thereof the defendant refused, and still refuses; that defendant still unlawfully withholds and detains said sheep from the possession of plaintiff, etc. A general demurrer to the complaint was interposed and overruled. The defendant then answered, denying the plaintiff's ownership or right to the possession of the sheep, and setting up facts to justify his taking possession of the same. The case was tried, and the findings and judgment were in favor of the plaintiff. The defendant appeals from the judgment entered against him, and has brought the case here on the judgment roll alone. The only question presented for decision is, did the complaint state facts sufficient to constitute a cause of action? It is contended for appellant that the complaint was fatally defective, because it entirely failed to state that the plaintiff was the

owner and entitled to the possession of the sheep when the action was commenced. The same question arose in Fredericks v. Tracy, | 98 Cal. 658, 33 Pac. 750. In that case the complaint was very similar to the complaint in this case, and it was held to be defective, and cause for reversal. On the authority of that case the judgment here appealed from must be reversed, and the cause remanded, with leave to the plaintiff to amend his complaint if so advised. So ordered.

(108 Cal. 684)

BRADFORD v. WOODWORTH.

(No.

18,342.) (Supreme Court of California. Sept. 5, 1895.) SALE-ACTION FOR PRICE-CONTRACT.

In an action to recover the value of lumber sold to defendant, to be used in the construction of a quartz mill on the R. mine, it appeared that defendant was the president of the Y. Mining Company, which owned the mine, and for which defendant was constructing the mill; that he did not inform plaintiff, nor did the latter know, that defendant was acting as agent of the Y. Company, and that the lumber was for such company, but that plaintiff contracted with defendant as the owner of the R. mine, and as the principal in the transaction. Held, that defendant was liable. Department 2. Appeal from superior dcourt, Tuolumne county; G. W. Nicol, Judge.

Action by S. S. Bradford against F. H. Woodworth to recover the value of lumber alleged to have been sold to defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

J. D. Redding and J. F. Rooney, for appellant. F. W. Street, for respondent.

TEMPLE, J. Appeal from the judgment, and from an order denying a new trial. This action was brought to recover the value of lumber alleged to have been sold by plaintiff to defendant, to be used in the construction of a quartz mill on the Rising Sun Mine. The answer denies all the material allegations of the complaint, and avers that the lumber was sold by plaintiff to the Yosemite Mining Company, a corporation incorporated in the state of Illinois.

The court found that the lumber was sold to the defendant, but that at the time the defendant was the president of the Yosemite Mining Company, and, for that company, was in charge of, and engaged in the management of, the Rising Sun Mine. The court further found as follows: "That neither at the time the defendant contracted with plaintiff for the lumber and materials furnished defendant as aforesaid, nor during any of the time plaintiff was furnishing the said lumber and materials, did the defendant inform the plaintiff that he, said defendant, was acting as the president of, or as the agent of, the Yosemite Mining Company; nor did the plaintiff know at or during any portion of the time from September 15, 1883, to and including the 2d day

of April, 1884, that the defendant was the president of, or the agent of, the Yosemite Mining Company; and the defendant did not, at or during any of said time, inform plaintiff that the said Yosemite Mining Company was the owner of said Rising Sun Mine, or that the lumber and materials furnished and delivered to the defendant as aforesaid were for the said Yosemite Mining Company; and plaintiff did not know, during any of said time, that said lumber and materials sold and delivered by him to the defendant as aforesaid were for the said Yosemite Mining Company, or that said company was the owner of said Rising Sun Mine. That plaintiff dealt and contracted with the defendant as the owner of said Rising Sun Mine, and as the principal in the transaction." It is claimed that the evidence does not support this finding, but a careful reading of the transcript convinces me that it is only one of numerous cases presented here where the real claim is that the finding is not supported by the preponderance of the evidence. Certainly the testimony of the plaintiff himself supports the finding in every respect, and the opposing testimony is not very positive upon the most material points. It tends rather to show that plaintiff may have known that defendant was the agent of some company. Under such circumstances, we cannot disturb the finding. The facts being as found, the defendant is liable.

Appellant also complains of certain alleged errors of law in refusing to admit evidence offered by him. But I find no prejudicial error in the rulings. The record does not show a stipulation that the minute book might be used in evidence, and, if it did, the book was not attached to the deposition, or returned with it. It was then incumbent upon defendant to prove its identity, unless that was admitted. The minute order showing authority to purchase the mine was read in connection with the deposition. For all other purposes for which the book was offered, it was clearly incompetent, even if its identity and genuineness had been admitted. The judgments offered were not competent evidence upon any issue in the case. It was proper to permit plaintiff to explain, in rebuttal, the telegram which had been introduced by the defendant to contradict his testimony. The order and judgment are affirmed.