ary of the land the water of the river the purpose, among others, of irrigating moistens the soil, and causes the produc- said tract of land, and that such irrigation tion and growth of valuable crops of is feasible and necessary to make the lands grasses. Plaintiffs, in order to increase the produce crops of grain, hay, vegetables, fertility of their lands, and to afford an and fruits, and will thereby greatly add to abundance of grass and water for their the value thereof; that it ever has been and stock on the ranch, have constructed and now is the purpose and intention of defendmaintained a dam on Cole slough, and ant to make only a reasonable use of the have constructed canals and ditches, by waters of the river for irrigating its lands, means of which they have for more than and that it is not now, and never has been, two years conducted the waters of the river the purpose or intention of defendant to over and upon their lands, and have there- make any use of the waters of the river to by irrigated a large portion thereof, caus- the injury of plaintiffs in any manner whating the same to produce more abundant ever. crops, and furnishing water for their live- The court found all the facts as to the stock on the land. For more than two plaintiffs' ranch; its possession, size, locayears plaintiffs have had more than 13,000 tion along Kings river; use for the pasturhead of live-stock grazing on their land, age of stock and raising alfalfa; necessity and the water of the river is necessary for for water to irrigate it, and supply the the subsistence of such stock, and is the stock grazing thereon,-to be as alleged only water to which the stock on the ranch in the complaint. It further found that decan have access. Plaintiffs are also culti-fendant was a corporation, and that in vators, and have growing on the ranch 1883 it constructed a large canal leading about 3,000 acres of alfalfa, and the waters out of the channel of Kings river at a point of the river are necessary for the growth of on the south side thereof, about 25 miles that crop. The defendant is a corporation above the place where Cole slough conorganized for the purpose of diverting the nects with and receives its water from the waters of Kings river to be used in irrigat-river; that in the month of January, 1884, ing lands at a distance from the river. It defendant, without the consent of plainhas constructed a canal about 100 feet wide tiffs, commenced to divert, and has ever and 4 feet deep, with a grade of 18 inches since continued to divert, from the channel to the mile, and since about the 1st of No- of the river, by means of its canal, 750 cubic vember, 1883, without the consent and feet of water per second; that the water against the will of plaintiffs, has thereby so diverted has been carried to lands locatdiverted from the river, at a point above ed at a distance from the river, and used plaintiffs' land, about 1,000 cubic feet of to irrigate lands which do not border on water per second. The water so diverted the channel of the river or touch the banks flows away from the river and plaintiffs' thereof, and that the canal is so constructland, and no portion of it is or can be re-ed that the water diverted by it does not turned to the river, but the whole thereof and cannot flow back into the river; that is lost or dissipated by absorption and by reason of the said acts of defendant the evaporation. By reason of this diversion quantity of water flowing to and through the quantity of water flowing past and plaintiffs' lands has been materially diminthrough plaintiffs' lands has been greatly ished, so that their cattle have not had a diminished, and rendered insufficient for the sufficient quantity to drink, and they have purposes of the ranch. Defendant threat- not had sufficient to irrigate their alfalfa ens to, and, unless restrained, will, continue fields. The court also found that defendthe diversion. Its canal has sufficient ca- ant is the owner of the lands mentioned in pacity to divert all the water flowing in its answer, and that portions of these the river at low stages, and such continued lands border on the south bank of Kings diversion will cause to the plaintiffs irrep-river, below where its canal is taken out; arable damage, will greatly impair the value of their lands, and will destroy the crops of alfalfa growing thereon.

* *

* *

"that the irrigation of the larger portion of defendant's lands from its said canal is feasible, and irrigation is necessary to make The answer denies, among other things, said lands produce crops of grain, hay, that defendant was or is organized as a vegetables, and fruits, which will thereby corporation for the purpose of diverting add greatly to the value of said lands; the water of Kings river to be used in irrigat-"that one of the purposes for which the deing lands at a distance from the river, and fendant constructed said canal was to irrialleges that it was organized for the purpose gate said lands; that said defendof diverting" the waters, or a portion of the ant has not at any time irrigated any of its waters, of said river to be used in irrigat- said lands from or by means of said canal; ing lands near to and on the banks of said * and said defendant does not intend river, as well as at a distance therefrom." to irrigate any of said lands by means of The answer further denies that defendant's said canal." Judgment was entered that canal has capacity to divert more than 750 defendant, its officers, agents, etc., be forfeet of water; and it alleges that at the ever enjoined and restrained from diverting time of the commencement of this suit, and any of the waters of Kings river into or for more than three years prior thereto, de- through its canal, or from causing, or in fendant was and now is seised and pos- any manner permitting, any portion of the sessed of certain lands situate in the coun- waters of the river to flow into or down its ties of Fresno and Tulare, known as the canal; and the judgment further ordered "76 Lands," and containing about 30,000 and decreed that defendant forthwith fill acres; that Kings river flows for a dis- up the head of its canal and close the same, tance of about nine miles along and forms so that no water can or will flow from the one of the boundaries of said tract of land; river into it. The appeal is from the judgthat defendant constructed its canal for ment and an order denying a new trial.

in an action for breach of contract, the statute (Code Civil Proc. Cal. §§ 537, 538) does not require that the amount due on the contract shall appear indebtedness shall be shown by affidavit. Held a proper case for attachment.

from the contract itself, but that the amount of the

2. Defendant, after agreeing to sell for $12,000 within one year, agreed to account "for the proceeds of sale of said premises whenever, prior to the expiration of said twelve months, he may effect a sale of said premises." Held, that this was sale was made, but was an absolute promise to pay not an agreement to pay only on condition that a within the year, and to pay before the end of the year, if a sale should be sooner effected. MCFARLAND, J., dissenting.

In bank. Appeal from superior court, Los Angeles county; H. K. S. O’MELVENY, Judge.

Wicks & Ward, for appellant. Barclay, Wilson & Carpenter, for respondent.

We have stated the case very fully, because, in our opinion, the judgment is not warranted by the findings, and must there fore be reversed. It clearly appears that defendant is a riparian proprietor above the plaintiffs. Its lands can be irrigated with water carried through its canal, and Irrigation is necessary to make them pro ́ductive. Being an upper riparian owner, defendant is entitled, as against the plaintiffs, to make a reasonable use of the water of the stream for the purpose of irrigating its riparian lands, and it is only for an unreasonable and unauthorized use that an action will lie. What is a reasonable use is a question of fact and depends upon the circumstances appearing in each particular case. Lux v. Haggin, 69 Cal. 394-409, 10 Pac. Rep. 674; Swift v. Goodrich, 70 Cal. 103, 11 Pac. Rep. 561; Stanford v. Felt, 71 Cal. 249, 16 Pac. Rep. 900. One of the purposes for which the defendant constructed its WORKS, J. This is an appeal from an orcanal was to irrigate its lands; and the fact der dissolving an attachment. The comthat it has not yet used the water upon its plaint is founded on the following agree own lands. cannot destroy or impair its ment: "This agreement, made and entered right. Lux v. Haggin, 69 Cal. 390, 10 Pac. into on the 28th day of July, 1887, by and Rep. 753. So the fact, if it be a fact, that between C. E. Mackey, of the city and defendant does not intend to irrigate any county of Los Angeles and state of Califor, of its lands by means of the canal does not nia, who will be hereinafter referred to as affect its right. It may, at any time the party of the first part, and Poindexter change its intentions in this respect. This Dunn, of the county of St. Francis, and being so, we are unable to see how the state of Arkansas, who will be hereinafter court could properly grant a perpetual in- mentioned as the party of the second part, junction restraining the defendant from witnesseth, that the said second party, ever, at any time or for any purpose, causing having this day purchased from said party or permitting any water from the river to of the first part, as agent for George D. flow into or down its canal. Besides, there Rowan, the following described lots of land may be times of flood or high water when situated in the city and county of Los Anno one below would be injured if defendant's geles and state of California, to-wit, lots canal should carry away from the river sur-numbered nineteen (19) and twenty (20) of plus water to its full capacity. Why should defendant be required to fill up the head of its canal so that no water at such times can flow into it? See Edgar v. Stevenson, 70 Cal. 286, 11 Pac. Rep. 704. From what has been said it is not to be understood that defendant has a right, as against riparian owners further down the stream, to divert water from the river for the purposes of sale, or for use on lands which are not riparian. We advise that the judgment and order be reversed, and the cause remanded, with directions to the court below to enter a decree in conformity with the views expressed in the foregoing opinion.

We concur: HAYNE, C.; GIBSON, C.

the Dana tract, as per map recorded in Book 5, at page 324, of Miscellaneous Records of Los Angeles County, for the sum and price of ten thousand dollars, (10,000,) the said first party, for and in consideration of the sum of $1 cash in hand to him paid by the said second party, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter mentioned and set forth, hereby agrees to take charge of and sell said lots of land for said second party as follows, to-wit: The said first party agrees and binds himself to sell said lots for said second party within twelve months from the date hereof, and to guaranty, account for, and pay over to said second party at least $12,500 net therefor, except interest paid by said second party on the deferred payment for said lots. Said second party agrees that said first party may retain and have, and said first party agrees to accept, all excess over said $12,500 which he may receive for said lots for his compensation for his services as agent herein. Said first party agrees to account to said second party, or his authorized agent, for the proceeds of sale of said premises as above stated, whenever, prior to the expiration of said twelve months, he may effect a sale of said premises. It is agreed 1. Defendant, by agreement in writing, bound that said first party may sell said lots for himself absolutely to sell certain land belonging not less than one-half cash and the balance to plaintiff within a specified time, and to realize within twelve months from date of sale, therefrom the sum of $12,500. He failed to sell, with interest at 10 per cent. per annum. In and plaintiff sued for $3,500 damages, alleging that the highest market value of the land between witness whereof said first and second parthe date of the agreement and the commencement ties have hereunto set their hands and of the action was $9,000 To authorize attachment seals." The complaint alleges that the do

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded, with directions to the court below to enter a decree in conformity with the views expressed above.

(80 Cal. 104)

DUNN V. MACKEY. (No. 12,915.) (Supreme Court of California. Aug. 2, 1889.)

ATTACHMENT-WHEN LIES.

contract itself, (Code Civil Proc. § 537,) but that the amount of the indebtedness shall be shown by affidavit, (Id. § 538.) Attachment may issue in an action for damages for the breach of a contract. Donnelly v. Strueven, 63 Cal. 182. And this where proof is necessary at the trial to show the amount of damages. Drake, Attachm. §§ 13-23. But there must exist a basis upon which the damages can be determined by proof. Thus it is said, "where the contract sued upon furnished a standard by which the amount due could be so clearly ascertained as to enable the plaintiff to aver it in his affidavit, or the jury by their verdict to find it, an attachment might issue." Id. § 15; Wilson v. Wilson, 8 Gill, 192. To the same effect see Wade, Attachm. § 11 et seq.; Saw-Mill Co. v. Fowler, 28 Conn. 103; Lawton v. Reil, 51 Barb. 30; Lawton v. Reil, 34 How. Pr. 465; Ferner v. Collins, 1 Mart. (N. S.) 369; Cross v. Richardson, 7 Mart. (La.) 166. The case of Donnelly v. Strueven, supra, is in point. The action was to recover damages for the breach of a contract to buy and pay for certain personal property, and this court held that it appeared from the complaint, as well as from the affidavit, that the plaintiff's action was founded in contract, and not in tort, and therefore defendant's ground of motion was not well taken. It is true that the question of uncertainty as to the amount of the debt was not directly determined, but it existed there as clearly as in the case before us, and it was held that the attachment was properly issued. Counsel for respondent rely upon Hathaway v. Davis, 33 Cal. 165, as supporting their position, but it is directly against them. It was held that an appeal-bond was a contract for the direct payment of money, although the amount to be paid was not fixed by the in

fendant failed and refused to sell the prop-| due on the contract shall appear from the erty as agreed upon, or at all; that the plaintiff was induced to buy the same by the promise of the defendant to resell the property as agreed in the contract; that he tendered a deed to the defendant and demanded that he pay him the sum agreed to be paid, and execute his note for the deferred payments as mentioned in the contract, and to account for and pay the money provided for in said contract. It is further averred "that the highest market value of said property described in the foregoing agreement was, upon the 28th day of July, 1888, and has been ever since, and still is, the sum of $9,000, and no more; that by virtue of of defendant's failure to keep and perform the terms and conditions of said contract, and by virtue of his breach thereof, as hereinabove set forth, this plaintiff has suffered damage in the sum of $3,500." The prayer of the complaint is for judgment for "$3,500, and for costs of suit, and for such other and further relief as to this honorable court may seem meet and proper." The attachment was founded on this complaint. The respondent defends the action of the court below in dissolving the attachment on two grounds: First, that the complaint did not state a cause of action; second, that the suit was to recover unliquidated damages, and for that reason no attachment could properly issue. The objection to the complaint is that there is no sufficient allegation of a breach of contract; that the contract was to sell as the agent of the plaintiff, and pay over the proceeds of the sale; not to pay $3,500 damages, or any sum, in case of failure to sell," and that “plaintiff attempts to treat defendant as a purchaser, tenders a deed and demands $12.500, and alleges damages upon that theory." We give these objections in the language of counsel for the reason that we do not understand what is meant suffi-strument itself, and that attachment would ciently to attempt to state their point. The complaint is one for damages for the breach of a contract, and is sufficient. The contract sued on was not one of agency for the sale of real estate simply. The defendant positively bound himself to realize to the plaintiff, out of the property, within one year, the sum of $12,500. We see no reason why he should not be held liable in damages for a breach of such a contract, as well as any other. Janin v. Browne, 59 Cal. 37, 44. As to the other point, the proper measure of damages is the difference between the actual value of the land at the end of the year and the amount the defendant bound himself to realize from it to the plaintiff. Therefore, the simple question is whether an attachment properly issued upon a complaint which upon its face showed precisely what the damages were; the affidavit in attachment showing that the defendant was indebted to the plaintiff in the sum of $3,500, upon an express contract for the direct payment of the money. There is no uncertainty appearing on the face of the proceedings as to the amount actually due. At the trial the only thing necessary to fix and determine the amount is to prove the value of the land. The amount agreed to be realized and paid over to the plaintiff is fixed by the contract. Our Code does not require that the amount v.22p.no.2-5

lie. The court recognized the well-established rule that it is only necessary that the contract be such as to furnish information from which the amount can be ascertained, and said: "We think a clew is afforded in the next section, (121,) where the plaintiff is required to make a certain affidavit in order to procure an attachment. He must be able to swear; among other things, that the defendant is indebted in a certain sum, specifying the amount. This language excludes all causes of action for unliquidated sums of money, for, until they have been liquidated by the verdict of a jury, it is impossible for the plaintiff to swear to the amount, and confines the right of the plaintiff to an attachment to cases of contract, where the liability of the defendant can be ascertained with certainty, and is not in doubt until after a trial, or, in other words, where the amount to be paid is fixed by the terms of the contract, or can be readily ascertained from the information which it affords. Every such case is clearly within the policy of the attachment law, which is designed for the benefit of acknowledged creditors, and not those who may or may not turn out to be such, according to the finding of a jury. In such cases, the payment which has been promised, in a certain sense, may be said to be direct. While this view is not very satisfactory, it is more

so than any other which finds color in the ambiguous words of the statute. There is, certainly, no reason why an attachment should be allowed in an action upon a promissory note which is not equally persuasive in the present case. The plaintiff can swear to the amount due with equal accuracy, and his right to recover is as clear, and his claim upon the law for the advantages of this remedy no less reasonable and just. True, the contract does not specify the precise amount to be paid, but it points directly to the instrument or record which does, which is all that is required. To read 'direct' as the opposite to 'collateral' would be to create a distinction of very doubtful foundation, and certainly opposed to the general policy of the act. To so read it would be to exempt all collateral contracts from the operation of the act. Indorsers, guarantors, sureties, and all others who undertake to pay or become responsible for the debts of another, could not be reached by attachment; and yet, there can be no good reason why they should be excepted. We are of the opinion that the legislature intended no such distinction." There can be no doubt that the defendant bound himself to realize and pay to the plaintiff, within one year, a certain and fixed sum of money. The fact that he

was, if possible, to realize the money by a sale of property to some one else does not affect the question, as he bound himself unqualifiedly to account for and pay over that sum of money at the end of the year, or before, if he made a sale of the property. The plaintiff might, perhaps, have treated this as a binding contract to pay the money, and upon tendering him the deed have demanded payment from him according to its terms, and upon failure to have main

In bank. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge. Davis & Allen, for appellant. W. R. Jacobs, (Lamberson & Taylor, of counsel,) for respondent.

WORKS, J. This is an appeal from an order denying a motion to vacate a judgment. The judgment was rendered October 30, 1865, and this motion was made December 31, 1888. We know of no provision of law which can be held to authorize the vacation of a judgment on a mere motion after so long a time. We have a provision authorizing such a proceeding within a limited time on certain grounds enumerated. Code Civil Proc. § 473; People v. Mullan, 65 Cal. 396, 4 Pac. Rep. 348. The motion here is made by the grantee of the judgment defendant, and is based on two grounds, viz., that the court rendering the judgment had not jurisdiction of the person of the defendant, and that he had, before the suit was brought, fully paid the sum of money which was the basis of the action. A judgment cannot be attacked in this informal way years after its rendition. Order affirmed.

We concur: SHARPSTEIN, J.; MCFARLAND, J.; THORNTON, J.

If the judgment were void on its face, and PATERSON, J. I concur in the judgment. the moving party had succeeded to the rights of the defendant, his motion would not be defeated by mere delay, however great, in seeking to have the judgment set aside, (People v. Mullan, 65 Cal. 396, 4 Pac. Rep. 348;) but neither of these things appears in this record. Goodhue, the moving party's grantor, was personally served with summons (including a copy of the |complaint) five months prior to the entry of the judgment, and the evidence of assignment to appellant is incompetent and conflicting.

(80 Cal. 68)

ONTARIO STATE BANK V. TIBBITS et al. (No. 13,007.)

(Supreme Court of California. Aug. 2, 1889.)

CORPORATIONS-FORECLOSURE OF MORTGAGE.

tained an action for the whole sum. But he was not bound to do so. Having brought his suit for damages, the only evidence necessary to fix the amount due him is as to the value of the land. This is as easily done as it would be to prove what the services were worth, in an action on an implied contract for work done or upon an express contract to pay what the services were reasonably worth; and, certainly, such contracts would uphold an attach1. Where a complaint by a corporation in fore ment. Counsel contend that the defendant closure states a complete cause of action, but does not show that it filed its articles of incorporation bound himself to pay only on condition that in the county where the property to be foreclosed he made a sale of the property; but we do was situated, before suit, as provided by Civil Code not so construe the contract. He bound Cal. § 299, its failure so to do is a matter of abatehimself absolutely to sell and pay over the ment to be specially pleaded, otherwise it is waived. money within a year, and to pay before the 2. The allegations in the answer, that "plain iff end of the year, if he made sale of the prop-ized under the laws of this state, nor a copartnernever was a corporation duly or otherwise organerty. Order reversed.

We concur: PATERSON, J.; SHARPSTEIN, J.; THORNTON, J.

I dissent: MCFARLAND, J.

(80 Cal. 199)

PEOPLE V. GOODHUE et al. (No 13,089.) (Supreme Court of California. Aug. 5, 1889.) VACATING JUDGMENT.

A judgment rendered in 1865 cannot be vacated by motion in 1888, on the grounds of want of jurisdiction and payment of claim before suit, though Code Civil Proc. Cal. § 473, provides for such proceedings for certain causes within a limited time.

ship, nor an individual," do not raise that issue.

Commisssioners' decision. In bank. Appeal from superior court, San Bernardino county; B. T. WILLIAMS, Judge.

H. C. Rolfe, for appellant. Rowell & Rowell, for respondents.

VAN CLIEF, C. This action was to foreclose a mortgage executed by the defendant Amelia Tibbits to secure her promissory note to the plaintiff, a corporation organized under the laws of this state. The court

below found that the note and mortgage were made and executed as alleged in the complaint, and that no part of the debt had been paid; but dismissed the action

with the requirements of the section by filing with the county clerk of San Bernardino county, where the mortgaged property is situate, and where the plaintiff bank was doing business when the note and mortgage were executed, its original articles of incorporation.

(80 Cal. 46)

solely upon the ground that the plaintiff of the Civil Code, the plaintiff has complied had never filed in the office of the county clerk of San Bernardino, in which the mortgaged property was situated, a copy of the copy of its articles of incorporation, as required by section 299 of the Civil Code, which section, in effect, provides that no corporation organized under the laws of this state shall maintain or defend any action in relation to property, or its rents, issues, and profits, until it shall have filed in the office of the county clerk" of the county in which such property is situated," such copy of the copy of its articles of incorporation filed in the office of the secretary of state. Although the complaint did not show that plaintiff had complied with this law, it nevertheless stated a complete cause of action. Phillips v. Goldtree, 74 Cal. 151, 13 Pac. Rep. 313.

PEOPLE V. SWALM. (No. 20,497.) (Supreme Court of California. Aug. 1, 1889.) COMMUNITY PROPERTY-LARCENY.

1. Personal ornaments purchased by a wife on her husband's credit, but without his authority, for which he afterwards pays, and which he never gave to her as her own, though she took property, and her possession being that of her hus and retained possession of them, are community band, her consent to the taking thereof by one knowing the facts would not prevent such taking from being larceny.

The failure of the plaintiff to file a copy of its articles of incorporation in the office of the county clerk, being mere matter of abatement, should have been specially pleaded by the defendants, otherwise it was waived; yet the answer tendered no such issues, (Sweeney v. Stanford, 67 Cal. 635,8 Pac. Rep. 444; Phillips v. Goldtree, 74 Cal. 151, 13 Pac. Rep. 313; Railroad Co. v. Pursell, 18 Pac. Rep. 887;) and the pleading thereof should be strictly construed, (Tooms v. Randall, 3 Cal. 440; Thompson to deprive the husband of the property.

2. Defendant having taken the property with the consent of the wife, with whom he was on terms of criminal intimacy, and attempted, under an assumed name, to convey it out of the state, and to be that of another person, and attempted to es having, when arrested, falsely stated the property cape by the bribery of an officer, the evidence suf ficiently shows his felonious intent to warrant his conviction of larceny.

is relevant to show that he knew the taking to be 3. The fact of defendant's adultery with the wife

without the husband's consent, and that he intended

Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; D. J. MURPHY, Judge.

Seneca J. Swalm was indicted and convicted of the larceny of jewels alleged to be the property of Richard H. McDonald, Jr., and appeals.

v. Lyon, 14 Cal. 42; Larco v. Clements, 36 4. The court having informed the jury in the genCal. 132.) The only affirmative matter con-eral charge that the law presumes ornaments in a tained in the answer is the following: “For wife's possession to be her separate property until a separate answer and defense this defend- the contrary is shown, it is not error to refuse an ant avers that plaintiff has not, and at the instruction reiterating that principle. commencement of this action had not, legal capacity to sue; that plaintiff never was a corporation duly or otherwise organized under the laws of this state, nor a copartnership, nor an individual." That the plaintiff had not legal capacity to sue is purely and only a conclusion of law, and of itself tendered no issue of fact. The only Issues of fact tendered by this plea related to the nature of the plaintiff, viz., was the plaintiff a corporation, or a copartnership, or an individual person? Upon these issues the court found for the plaintiff, to the effect that the plaintiff, at all the times mentioned in the complaint, was, and still is, a corporation. We are of opinion that the judgment should be reversed, and that the court below should be directed to give judgment for plaintiff upon the findings of fact and the facts admitted by the plead-stolen, was not the property of the person ings.

We concur: FOOTE, C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed and cause remanded, with instruction to the court below to render judgment for the plaintiff on the findings.

Chas. . Darwin, for appellant. Atty. Gen. Geo. A. Johnson, Flournoy & Mhoon, and Sawyer & Burnett, for the People.

FOOTE, C. The defendant was convicted of the crime of grand larceny, and from the judgment rendered upon the verdict of the jury and an order denying him a new trial he appeals. His first claim for the reversal of the judgment and order is that the property, consisting of certain valuable articles of jewelry, which he is alleged to have

alleged to be the owner thereof as charged, but was the separate property of his wife. There is evidence in the record which the jury evidently believed, and which it was their right so to do, which showed that the property in question was bought upon the credit of the husband, and was paid for by him; that the purchase of it by the wife was not authorized by him, but that he finally paid for it,-there being no evidence WORKS, J. I concur in the judgment on that either spouse purchased it with sepa the ground that the Code does not require rate money. It also appears that the husthe filing of a copy of the copy of the arti-band never gave the wife the property as cles of incorporation in the county where the original is on file.

THORNTON, J. I concur in the judgment on the ground that, conceding that the note and mortgage involved in the cause to be such property as is referred to in section 299

her own, but made an effort to have it returned to the seller, but it was never returned, and it was afterwards given into the hands of the defendant by the wife, to be taken out of this state, after she had become connected with him. Swalm was arrested while endeavoring clandestinely,