purporting to have been issued by the bank to her assignors, dated in the years 1897 and 1898, signed by the cashier or assistant cashier; and she brings this suit against the defendants, as stockholders of the bank, to recover their proportionate parts of the indebtedness alleged to be due to her. The findings of the court were adverse to the plaintiff, except as to the sum of $7.03 found to be due to her from the defendant, the Goldtree Bros. Company; and judgment was entered accordingly for the defendant Mrs. Jack, and against the other defendant for the amount named. The plaintiff appeals from the judgments, and from an order denying a motion for new trial.

On the trial, the genuineness of the signature of R. E. Jack and his official character as cashier of the bank having been proven, the certificates of deposit issued to the plaintiff were provisionally admitted in evidence, subject to be stricken out upon the failure of the plaintiff to connect them with the bank; and, all evidence upon the point offered by the plaintiff having been excluded, they were subsequently stricken out. In this, we are inclined to think, the court erred. The authority of the cashier of a bank to receive money, and to issue receipts or certificates of deposit therefor, seems to be implied by the very name of his office (Bouv. Dict., Cent. Dict., word "Cashier"); and hence, it would seem that such a receipt or certificate signed by him must, in the absence of proof to the contrary, be taken to be the act of the bank. But however this may be, certainly his authority might have been proved by any of the several kinds of evidence offered by the plaintiff for that purpose, that is to say, by the semiannual statements of the cashier, or by the custom of the bank or of the cashier (Phillips v. Lumber Co., 130 Cal. 434, 62 Pac. 749; Carpy v. Dowdell, 115 Cal. 677, 47 Pac. 695); and we are of the opinion, also, that the power was expressly conferred by section 12 of the bylaws of the bank, which reads as follows, and, taken in connection with the nature of the office of the cashier, clearly confers upon him the authority to issue such certificates: "The secretary shall as cashier have charge of the funds and property, books, papers and other matters of the bank and shall have power to sign equally with the president all drafts and papers connected with the banking business. The president and cashier shall further perform the duties necessary to be done for the legitimate transaction of business under such rules, regulations and restrictions as the board of directors may by resolution prescribe." Similar rulings were made as to the other certificates of deposit offered, and the same observations will apply.

There is nothing in the objection made by the respondent that the bank itself had no authority to enter into such a transaction. "Such certificates are usual with commercial

banks," which have full power to contract in this, and in all other respects not prohibited; nor are their powers curtailed by the statutory provision expressly vesting similar powers in savings banks. Civ. Code, § 576; Murphy v. Bank, 119 Cal. 341, 51 Pac. 317; Magee, State Banks & Bank Officers, 36 (cited by appellant's counsel).

Nor is there anything in the objection made by the respondent the Goldtree Bros. Company that the statement and their amendments were not presented to the judge for settlement within 10 days after service of the amendments on plaintiff's attorneys, and upon 5 days' notice. Code Civ. Proc. § 659, subd. 3. It does not appear when the amendments were served on the plaintiff's attorney, if

ever.

In the case of the defendant Mrs. Jack, the judgment rests upon the single finding "that the defendant Nellie Hollister Jack never was at any time or at all subscriber for, nor appeared on the books of the County Bank of San Luis Obispo as the owner of, nor did she at any time own, 330 shares, or any shares, of the capital stock of said County Bank of San Luis Obispo; that said Nellie Hollister Jack was never at any time a stockholder of the county Bank of San Luis Obispo." This is attacked by the appellant as being contrary to the evidence, and it is claimed by the respondent that the specification of the particulars in which the evidence is insufficient to justify it is defective. But we do not think so. The effect of the finding, though varying in expression, is simply that the defendant was not a stockholder; and where a single fact is thus found it is sufficient to say in the specification that the finding is not justified by the evidence, or is contrary to the evidence. 1 Hayne, New Trials, § 150, and cases cited; Baird v. Peall, 92 Cal. 235, 28 Pac. 285; De Molera v. Martin, 120 Cal. 548, 52 Pac. 825. "The object of the specifications required by the statute is clearly to direct the attention of the court and adverse party to the particular point on which the evidence is claimed to be insufficient, and when this object is accomplished it will be held sufficient." In re Yoakam's Estate, 103 Cal. 505, 37 Pac. 485. We are also of the opinion that the finding is contrary to the evidence. From the stock book of the corporation it appears that certificate No. 89, for 330 shares of stock to Mrs. Jack, as owner, was issued March 14, 1896, and that the same stood in her name on the books of the company until July 17, 1899, when it was surrendered and canceled; and her acceptance of the certificate is shown by her written assignment of it to R. E. Jack, her husband, of date March 16, 1896. From this it appears that she became a stockholder of the corporation on or before March 16, 1896, and that she continued to appear as such on the books of the company until the cancellation of the certificate, July 17, 1899. She therefore continued to be a stockholder, as

the term is defined in section 322 of the Civil Code; and, under the provisions of that section (no facts being found to exonerate her), she continued to be liable, along with her husband. Civ. Code, §§ 322, 324; Duke v. Huntington, 130 Cal. 274, 62 Pac. 510; Baines v. Babcock, 95 Cal. 593, 27 Pac. 674, 30 Pac. 776, 29 Am. St. Rep. 158; Moore v. Boyd, 74 Cal. 174, 15 Pac. 670; O'Connor v. Witherby, 111 Cal. 528, 44 Pac. 227. R. E. Jack, indeed, testified that, on notifying her of the issue of the stock, she refused to receive it; and he further testifies that he told her, if she would not receive it, she must assign it to him. But there is no finding as to these or other facts tending to exonerate her, and their effect cannot, on the record as presented, be considered. All that is material to the immediate question is that it appears from the assignment of the certificate that it was accepted by her, and hence that the finding cannot be sustained. On a new trial the question of her liability, as affected by the facts testified to by R. E. Jack, or otherwise appearing, can be considered; and as it is clear that there is a liability on her or her husband, or on both, the plaintiff, if she be so advised, should be permitted to amend her complaint by charging the latter with such liability.

We advise that the judgment and order be reversed, and the cause remanded, with directions to the court below to permit the plaintiff to amend her complaint if she be so advised.

1. A notice of lis pendens correctly described the land by boundaries, one of which was a road, one a river, the third a fenced boundary line, and the fourth a surveyed line, and then incorrectly stated that it was located in the northwest corner of a certain larger tract. Held, that the mistake as to the location in the larger tract did not render the description fatally defective.

2. A party cannot avail himself of a former judgment as a defense to another action without pleading it.

3. Defendant commenced an action for possession of land against plaintiff's grantor, and filed notice of lis pendens. Pending the action the conveyance to plaintiff was made, and the period of limitation elapsed between that date and the time when defendant was put into possession under a judgment in his favor. Held that, as the statute would not have begua to run in favor of plaintiff's grantor until the termination of the action, it did not begin

to run in plaintiff's favor until then; he having taken with notice.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; M. T. Allen, Judge.

Action by Susan McLean against E. J. Baldwin and others. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant Baldwin alone appeals. Reversed.

E. J. Baldwin and Works & Lee, for appellant. J. Brousseau and Graves, O'Melveny & Shankland, for respondent.

HAYNES, C. Action to quiet title. The plaintiff had findings and judgment in her favor, and defendant Baldwin appeals from the judgment, and from an order denying a new trial. Defendant Garvey made default, and Temple entered a disclaimer. On February 15, 1887, defendant John H. Temple, claiming to be the owner, occupied a parcel of land containing about 76 acres, familiarly known as the "Temple Homestead," lying partly within the Rancho La Merced, owned by said Baldwin, and partly within the Rancho De Felipe Lugo, owned by said Baldwin and one Richard Garvey as tenants in common; and on the day above mentioned said Baldwin, the defendant in the present action, commenced an action against said Temple to recover possession of that part of said homestead lying within said Rancho La Merced, which part was described in the complaint as follows: "That certain tract of land bounded on the northerly side by the boundary line between the Rancho La Merced and the Rancho Potrero de Felipe Lugo, and on the westerly side by the road leading from the old Mission San Gabriel to the Temple school house, and on the easterly side by the San Gabriel river, and on the southerly side by the land heretofore occupied and used by one E. Bestwick, including within said boundaries ten acres of land, more or less; the same being located in the northwest corner of the said Rancho La Merced." On the same day Baldwin, the plaintiff in that action, filed and caused to be recorded in the recorder's office of said county a notice of lis pendens, in which the land in litigation was described as in the complaint above quoted. That action was tried in April, 1891, and judgment therein was entered for defendant Temple; and Baldwin appealed from the judgment and from an order denying his motion for a new trial, and upon that appeal said judgment and order were reversed, and a new trial granted. See Baldwin v. Temple, 101 Cal. 396, 35 Pac. 1008. Upon the second trial Baldwin had final judgment in May, 1897; and on August 10, 1897, he was put in possession by the sheriff under a writ issued upon said judgment, and built a fence separating said parcel from the remainder of said Temple homestead, and maintained his possession until August, 1898, when Watkins, a grantee pendente lite under Temple, removed

the fence and retook possession. Plaintiff in this action claims title to said premises under the following conveyances, each of which assumes to convey the whole of the Temple homestead, including the part lying in the Rancho La Merced, which alone is involved in this action: Temple to Davidson, July, 1892; Davidson to Watkins, January, 1895; Watkins to his wife, June, 1895; Watkins and wife to plaintiff, January 28, 1899.

There are several points in controversy in this case discussed by counsel:

1. It is contended by respondent that the notice of lis pendens filed by the plaintiff in the case of Baldwin v. Temple to recover possession of the land here in controversy was so defective in its description of it as not to impart notice of its pendency, and that therefore Temple's grantee took without notice of Baldwin's claim. As has been stated, the description in said notice is a copy of the description in the complaint, which has been quoted herein. The only error in the description of the land in said notice is in the statement that it is located in the northwest corner of said Rancho La Merced. But the land in controversy was described in said notice as being bounded on one side by the Old Mission road leading to the Temple school house, and on the opposite side by the San Gabriel river; and these boundaries are visible and certain to the most casual observer, while the land occupied by Bestwick, being marked by a fence, could be readily ascertained. Three of the lines being certain and visibly marked, while the fourth is a surveyed line between two patented grants, though not visibly marked upon the ground at that part, the description was certain, and could not be located at any other place. The description given in the notice would have been quite sufficient in a deed of conveyance. The mistake as to the part of the grant it was in would be rejected as falsa demonstratio. Helm v. Wilson, 76 Cal. 476, 18 Pac. 604; Burnham v. Stone, 101 Cal. 170, 35 Pac. 627. In suggesting that there are many roads radiating from the Old Mission, and that therefore there is an uncertainty as to what road was intended, respondent overlooks the fact that it is described as the road leading to the Temple school house; and it is not suggested that there is any other road answering that description, whilst one of respondent's plats, found in their brief, shows the "Temple School" on the roadside opposite said homestead. We think the property and its location were sufficiently described in the notice of lis pendens. Upon this subject it is said in Benn. Lis Pendens, § 93: "It may be said in general that a lis pendens will be created where the property involved in suit is described either by such definite and technically legal description that its identity can be made out by the description alone, or where there is such a general description of its character or status, and by such reference, that upon inquiry the identity of the property in

volved in litigation can be ascertained. Descriptions falling within the latter as well as the former class are efficient to create a lis pendens." The same author, at section 93a, further says: "So, if the description is such that the purchaser is reasonably put upon inquiry, and such as to raise a presumption of probability that the property may be included in that which is involved in the litigation, there is a lis pendens efficient to charge the property in the hands of a pendente lite purchaser with the results of the litigation." So, in Freem. Judgm. § 197, after citing and quoting from Green v. Slayter, 4 Johns. Ch. 39, decided by Chancellor Kent, it is said: "From this decision, which seems to be sustained by reason, it would follow that the description in the bill need not in itself be so specific as to necessarily and beyond all possibility include a given tract of land, but that it is ample, for the purpose of invoking the rule of lis pendens, if the land in all probability comes within the description, and if prospective purchasers, upon reading the bill, are advised by it that the land with which they propose to meddle may be, and probably is, a parcel of the lands in litigation."

2. Respondent put in evidence, over the objection of appellant, the judgment roll in the case of Baldwin and Garvey v. Temple, and insists that said judgment is conclusive against appellant in this action. On the same day the said action of Baldwin v. Temple was commenced to recover that portion of the homestead lying within the Rancho La Merced, Baldwin and Garvey commenced a similar action to recover that portion of the homestead lying within the Rancho De Felipe Lugo, which they owned as tenants in common. In that action the complaint described the portion of the Temple homestead sought to be recovered as that part lying "northeasterly of the boundary line between the Rancho La Merced and the Rancho Potrero de Felipe Lugo," and therefore excluded from the lands involved in that action that portion of said homestead which was within the Rancho La Merced, of which Baldwin was the sole owner. The answer was a general denial and a plea of the statute of limitations, but defendants also filed a cross complaint to quiet title, and described the land by courses and distances according to a survey made by one Seebold, and then alleged "that the tract of land described and claimed by plaintiffs in their complaint is the same land and premises hereinabove described"; and the court, in its findings, described the land by the courses and distances of said survey, and further found, in the language of the allegation above quoted, "that the tract of land described and claimed by plaintiffs in their complaint is the same land and premises hereinabove described." It is claimed that the description given by courses and distances in said judgment includes the whole of the homestead, including that part lying within the Rancho La Merced which was finally ad

judged in the action of Baldwin v. Temple to be the property of Baldwin. It is not necessary to determine whether or not said judgment in the case of Baldwin and Garvey v. Temple included the part of the homestead lying within the Rancho La Merced which is in controversy here; for, if it be true that the judgment in the case of Baldwin and Garvey included the part finally adjudged in the other case to be the property of Baldwin, it should have been pleaded in bar in that case. There was ample opportunity to do so. The judgment in Baldwin and Garvey was entered June 30, 1888, and, not being appealed from, became final June 30, 1889, whilst the first trial in Baldwin v. Temple was not had until April, 1892; and it is well settled that a party cannot avail himself of a former judgment as a defense to another action without pleading it. Cave v. Crafts, 53 Cal. 135; Brown v. Campbell, 110 Cal. 644, 43 Pac. 12; Freem. Judgm. § 322, and cases there cited. The judgment of Baldwin v. Temple is pleaded by appellant in this action, and, as it would have been conclusive against Temple if he were the plaintiff, it is conclusive against respondent.

3. It is further contended by respondent that appellant is barred by the statute of limitations, but this contention cannot be sustained. On August 6, 1897, after Baldwin obtained final judgment in his action against Temple, he caused a writ of possession to be issued thereon; and on August 10, 1897, he was put in possession by the sheriff thereunder, and built a fence separating the land so recovered from the remainder of said original homestead, and maintained possession for about a year, when Watkins, claiming by mesne conveyance under Temple, removed the fence and resumed possession. From the date of the conveyance by Temple to Davidson until Baldwin was put in possession under said writ was a little more than five years, but it is obvious that if Temple had not conveyed the land, and had remained in possession, the statute would not have commenced to run in his favor until the litigation was ended, which was in May, 1897, and this action was begun March 7, 1899; and, if the statute would not have run in Temple's favor during the litigation, it would not run in favor of a purchaser pendente lite who was charged with notice, as was the case here. In re Grider, 81 Cal. 571, 22 Pac. 908; Christy v. Waterworks, 97 Cal. 21, 31 Pac. 1110; Parker's Adm'r v. Clarkson, 39 W. Va. 184, 19 S. E. 431.

It follows from what has been said that the judgment in the case of Baldwin v. Temple is final and conclusive, and is a bar to the present action as to all that part of the John Temple homestead described, and adjudged to be the property of this appellant in the final judgment in the said action of 'Baldwin v. Temple pleaded by appellant in bar of the present action, and that the court erred in holding and finding that the notice

of lis pendens filed by Baldwin in said action was insufficient and void, and did not impart notice to Davidson at the time of his purchase from Temple of the pendency of said action. The conclusion thus reached renders it unnecessary to further particularize or discuss the points made by counsel on either side.

The judgment should be reversed.

We concur: COOPER, C.; GRAY, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed.

(136 Cal. 527) (Cr. 868.)

Ex parte KENNEKE. (Supreme Court of California. June 11, 1902.) GAME-FORBIDDING SALE OF QUAIL-CONSTITUTIONAL LAW.

Pen. Code, § 626k, enacting that every one who buys, sells, or offers for sale, barter, or trade, any quail, is guilty of a misdemeanor, is not violative of the fourteenth amendment of the federal constitution, nor of any provision of the state constitution, on the theory that it is not uniform in its operation; that it ille gally discriminates between different classes of persons; that it deprives persons of the equal protection of the laws, and interferes with the inalienable right of acquiring, holding, and protecting property.

Van Dyke and Temple, JJ., dissenting.

In banc. Habeas corpus by S. Kenneke to secure his release from custody for a violation of Pen. Code, § 626k. Petitioner remanded, and writ discharged.

Riordan & Lande, for petitioner. Wm. Hoff Cook, for respondent.

* * *

MCFARLAND, J. Petitioner was arrested and is held under a charge of violating section 626k of the Penal Code, which is (omitting parts of the section not material here) as follows: "Every person who buys, sells, offers or exposes for sale, barter or trade, any quail is guilty of a misdemeanor." The sole ground upon which petitioner seeks to be discharged is the alleged unconstitutionality of the said section. It is contended that the section is violative of the fourteenth amendment of the federal constitution, and of section 11 of article 1 of the constitution of this state, in that it is not uniform in its operation; that it illegally discriminates between different classes of persons; that it deprives persons of the equal protection of the laws, and interferes with the inalienable right of acquiring, holding, and protecting property. The contention is not maintainable. Wild game belongs to the whole people, and the legislature may dispose of it as may seem to it best, subject only to constitutional limitations against discriminations. Within those limitations, the legislature, for the purpose of protecting game, may pass such laws as to it seem most wise; and "the measures best

This point was supreme cour. Co. v. People,

adapted to that end are for the legislature to determine, and courts cannot review its discretion." Ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129, and cases there cited. There is no question in the case at bar as to the reasonableness of an ordinance, as in Ex parte Knapp, 127 Cal. 101, 59 Pac. 315, and other cases cited. The provision attacked here is a law of the state, passed by the legislature. The law in question does not destroy a right of property. correctly disposed of by the of Illinois in American Exp. 133 III. 649, 24 N. E. 758, 9 L. R. A. 138, 23 Am. St. Rep. 641. In that case the court, dealing with a statute similar to the one here involved, and with this question of the right of property, say: "The fallacy of the position consists in the supposition that the person who may kill quail has an absolute property in the dead animals. In the Maier Case, supra, it was held, as has been seen, that no one has a property in animals and fowls denominated 'game'; the ownership was in the people of the state. This being so, it necessarily followed that the legislature had the right to permit persons to kill or take game upon such terms and conditions as its wisdom might dictate, and that the person killing game might have such property interest in it, and such only, as the legislature might confer. The legislature has never conferred an absolute property in quail upon the person who might kill the same. The killing of quail during the months of October and November was permitted, not for sale, not to go upon the market as an article of commerce, but for the mere use of the person who killed the birds. The person killing quail under this statute has but a qualified property in the birds after they are killed. He may consume them. If a trespasser should take them from him, he might maintain an appropriate action to regain the possession. But the law which authorized him to kill the quail has withheld the right to sell or the right to ship for the purpose of sale, and, when such person undertakes to ship for sale, he is undertaking to assert a right not conferred by law. The act, therefore, does not destroy a right of property, because no such right exists." There is no arbitrary discrimination in the law which would make it obnoxious to the fourteenth amendment, or to any provision of our state constitution. There is no discrimination in it whatever. Under the law, all persons have the same right to kill quail within certain limitations, and it provides that "every person who buys, sells," etc., any quail, shall be guilty, and does not give to any person the right to so buy or sell. See, also, Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793.

The petitioner is remanded, and the writ discharged.

Our

VAN DYKE, J. I dissent. The petitioner is charged with selling one quail during the open season, in violation of the section of the Penal Code as amended by the legislature at the session of 1901. The amendment in question, in my opinion, is unconstitutional. state constitution declares: "All laws of a general nature shall have a uniform operation." Article 1, § 7. And by the fourteenth amendment to the constitution of the United States, among other things, it is declared that no state shall deprive any person of life, liberty, or property without due process of law. In the Slaughterhouse Cases, 16 Wall. 127, 21 L. Ed. 394, it is said: "Liberty is freedom from all restraints but such as are justly imposed by law. Beyond this line lies the domain of usurpation and tyranny. Property is everthing that has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner." The amendment to the Penal Code under consideration has made a sharply defined discrimination against selling quail and other game birds or animals, and not against the killing of them, and the purpose thereby to preserve them for the special benefit of those who may belong to gun clubs, or who possess the leisure and qualifications of sportsmen, is as plain as though so written in direct terms; and this class is very insignificant in number, compared with the whole people of the state. The women and children of the state, and the men who have not sufficient time to hunt game, and the old and infirm, and such as are not endowed with good sight, are all deprived of any use or benefit in the wild game, unless some sportsman friend may see proper to give it to them. He has read history to very little purpose who does not know that game laws such as this, enacted and enforced in the interests of a privileged few, have been the fruitful source of the oppression of the masses of the people, and have caused more popular discontent and resentment than almost any other subject. It were better to exterminate the game at once than to preserve it for the special benefit only of a favored few. The wild game of the state, it is true, belongs to the people in their sovereign capacity, and it is not the subject of private dominion to any greater extent than the legislature may see fit to make it; but as said in Kellogg v. King, 114 Cal. 378, 46 Pac. 166, 55 Am. St. Rep. 74: "The legislature has seen fit to prescribe the limit where public proprietorship ends and that of the individual commences; and, when within the provisions of such statute, an individual is as much to be protected in the enjoyment of his rights in this species of property as in any other under the law,"-citing section 656 of the Civil Code, which reads: "Animals wild by nature are the subject of ownership while living, only when on the land of the person claiming them, or when tamed or taken and held in the possession, or disabled and immediately pursued." Game birds are