the property of her said husband on the ground of his unsoundness of mind, and before the expiration of said lease, and before the time given the petitioners by said lease and contract to exercise their option to purchase said property, she, as such guardian, brought an action in said court to set aside said contract on the ground that said Clarke was at the time he executed the same of unsound mind; that said cause was tried before the respondent as judge of said court, and findings and judgment rendered in favor of the plaintiff, and a motion for a new trial has been made, and is pending before the respondent; that a motion has also been made by said plaintiff for the appointment of a receiver to take charge of said property, which is also pending. As a reason why the respondent should be prohibited from acting further in said cause, it is alleged that during the pendency thereof before him he purchased a certificate of purchase for a certain tract of land, consisting of 257 acres, which is a part of the land included in said lease and contract, and of which the petitioners took and held possession thereunder, and a part of the land claimed by each of the parties in said action and in controversy between them, and that the respondent still holds and owns said certificate, and claims to own said property. There are also other allegations, not necessary for us to notice particularly. The respondent demurs to the petition, and also answers the same. In his answer he denies that the land purchased and claimed by him is a part of said ranch, but he does not deny that the parties to said action are claiming it to be a part thereof, or that the petitioners are in possession of it, claiming it to be within their contract, or that it is in controversy between the parties in said action.

So, putting the matter in the most favorable light for the respondent, we have a case in which three parties are adversely claiming to be the owners of a certain tract of land, one of whom is a judge of the court, and the other two adverse litigants before him, asking him, by his judgment, to determine which of them is the owner of the land which he claims to own. Not only so, but he is asked to appoint a receiver to take possession of land which he claims to own, and account to him for its management. He is called upon by the application for a receiver, or may be, to determine what lands shall go into the hands of such receiver. As he claims a part of the land, and asserts that it is not within the larger tract in dispute, the temptation to exclude it in making his order will at once arise; and, if his land is to go into the hands of a receiver, it must be of some interest to him who shall become such receiver, and take charge of and manage the land. It seems to us that neither argument nor authority is necessary to show that a judge should be prohibited from sitting in a cause under such circumstances; but we cite Code Civil Proc. § 170; Mining Co. v. Keyser, 58 Cal. 315; Stock well v. Board, 22 Mich. 341; Hall v.

Thayer, 105 Mass. 219; Cottle's Appeal, 5 Pick. 482; Sigourney v. Sibley, 21 Pick. 101; Coffin v. Cottle, 9 Pick. 287; Gay v. Minot, 3 Cush. 352; Moses v. Julian, 45 N. H. 52; Oakley v. Aspinwall, 3 N. Y. 517.

It is contended that our statute only disqualifies a judge where he has a direct interest in the result of the suit, and that, as in this case a judgment for or against either of the parties, determining the controversy between them, could not bind the judge, or affect his title to the land claimed by him, he was not disqualified. But we cannot give the statute this narrow construction. It should be the duty and desire of every judge to avoid the very appearance of bias, prejudice, or partiality; and to this end he should decline to sit, or, if he does not, should be prohibited from sitting, in any case in which his interest in the subject-matter of the action is such as would naturally influence him either one way or the other. We have shown how a judge might, and probably would, be influenced to act in the appointment of a receiver. In the decision of the action on its merits, the temptation to decide in favor of one party or the other might be equally strong. It might become very important to him to have the land go to one of the claimants rather than the other. One might be friendly to him, and his claim, and the other not. With one a compromise might be easy, and with the other difficult. One might be much more inciined, and more able, pecuniarily or otherwise, than the other, to litigate his claim against him. And, aside from what might influence the judge under such circumstances, it appears to us to be unseemly for a judge to sit in an action involving the title, as between the litigants, to a subject-matter of which he claims to be the sole owner, and must in the end litigate as between himself and the litigant who succeeds to the property by his judgment.

The question whether the taking of testimony was necessary was discussed at the argument. The view we have taken of the issues renders this unnecessary. Let the writ issue prohibiting the respondent, Campbell, from acting further in said cause.

We concur: MCFARLAND, J.; SHARPSTEIN, J.; Fox, J.; PATERSON, J.

(3 Cal. Unrep. 202) LABISH V. HARDY. (No. 12,479.) (Supreme Court of California. Dec. 27, 1889.) HUSBAND AND WIFE-COMMUNITY PROPERTY. 1. A husband and wife occupied a tract of land belonging to the United States from 1847 until 1856, when the wife died. The husband continued to occupy the land until 1871, when he received a deed to it from the town of Santa Cruz under Act Cong. July 23, 1865. Held, that the occupation by the husband and wife during her life did not operate to render the land community property, or vest the wife with any ownership whatever. Following Labish v. Hardy, 19 Pac. Rep. 531.

2. In an action by a daughter of the first marriage against a second wife, to whom the land had been deeded, to recover the interest claimed by plaintiff as heir of her deceased mother, the deed

will not be vacated on the ground that it was a gift, and the husband was indebted to plaintiff, and did not leave sufficient property to pay her.

Department 2. Appeal from superior court, Santa Cruz county; F. J. MCCANN, Judge.

Action by Isabella Labish against Jane Hardy to set aside a deed and quiet title to certain premises in the city of Santa Cruz. In 1847, plaintiff's parents went into possession of the land in dispute, which was then public land of the United States, and continued to occupy it, together with their children, as their home, until the death of plaintiff's mother, which occurred in June, 1856, at which time plaintiff was seven years old. After the death of plaintiff's mother, the father of plaintiff continued to occupy said premises as his home until his death, in 1883. In June, 1860, plaintiff's father married the defendant. In May, 1871, plaintiff's father took a deed for the premises from the corporate authorities of the town of Santa Cruz, under the act of congress approved July 23, 1866, entitled "An act to quiet title to certain lands within the corporate limits of the city of Benicia and the town of Santa Cruz;" said premises then being within the corporate limits of the town of Santa Cruz and public lands of the United States. On August 8, 1881, plaintiff's father made a deed of gift of the premises to the defendant. This deed was recorded, but is alleged not to have been properly acknowledged when this action was commenced. At the time this deed was made, the premises constituted all the property of plaintiff's father, and he never afterwards acquired any property. The defendant claims the premises under this deed. This action was commenced August 7, 1885. Plaintiff alleged that before that time she acquired and then owned any interest in said premises that might have descended from her mother; that after his first marriage W. H. Hardy received property and money in trust for the plaintiff upon the understanding and express promise on his part to invest and pay over the proceeds thereof to the children of his first wife, plaintiff being one of those children; that this trust was never repudiated by him, but was never carried out, and that at the time of his death he owed several hundred dollars to plaintiff on account of said trust property; that plaintiff did not know of the deed of gift to defendant until after her father's death, and did not know until then that her father had not left sufficient property to pay her demand, exclusive of said real property. These and other pertinent facts were set up in the complaint and amended complaint. The defendant demurred, and the demurrer was sustained. The plaintiff declining to further amend, judgment of dismissal was entered; and plaintiff appeals from such judgment.

W. D. Storey, for appellant. Henry P. Bowie, for respondent.

PER CURIAM. We have examined the rec

ord in this case, and find no error in it. The case is determined by Labish v. Hardy, 77 Cal. 327, 19 Pac. Rep. 531. Judgment affirmed.

(82 Cal. 273)

In re NEUSTADT. (No. 20,602.) (Supreme Court of California. Dec. 30, 1889.) FALSE PRETENSES-PUNISHMENT-JURISDICTION. 1. Pen. Code Cal. § 1205, providing that "a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which must not exceed one day for every dollar of the fine," does not apply to a conviction for obtaining money by false pretenses, under section 532, which prescribes as a penalty "imprisonment in the county jail not exceeding one year, and by a fine not exceeding three times the value of the money or property so obtained, " as the legislature did not intend by this provision to make it possible to impose a penalty of life imprisonment for a misdemeanor.

2. The police judge's court has no jurisdiction of the offense of obtaining money by false pretenses, as the fine may exceed $1,000.

BEATTY, C. J., and THORNTON, J., dissenting.
In bank. Habeas corpus.

This was an application for a writ of habeas corpus made by one Neustadt, who was convicted by the superior court of the city and county of San Francisco of obtaining money by false pretenses.

Carroll Cook, for petitioner. J D. Page, Dist. Atty., for respondent.

PATERSON, J. The petitioner was convicted of obtaining money by false pretenses, and sentenced on March 31, 1888, to imprisonment in the county jail for the term of one year, to pay a fine of $2,249, and, in default of payment thereof, to be imprisoned one day for every dollar remaining unpaid, the latter imprisonment to commence at the end of the one-year term of imprisonment first ordered. The penalty provided by section 532, Pen. Code, under which the petitioner was convicted, is “imprisonment in the county jail not exceeding one year, and by fine not exceeding three times the value of the money or property so obtained." The legislature did not intend, we think, by this provision. to make it possible to impose a penalty of life imprisonment for a misdemeanor such as the offense named in section 532, or any other. In People v. Righetti, 66 Cal. 184, 4 Pac. Rep. 1063, 1185, the court in department held that section 1205 of the Penal Code applies to cases of fine, whether the fine be coupled with a sentence of imprisonment, or whether the fine stand alone as the only punishment. The correctness of that decision may be doubted. The section provides: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of imprisonment, which must not exceed one day for every dollar of the fine." An adherence to the letter of this section would make it inapplicable to cases in which the court imposed a term of imprisonment, and also a fine. We do not, however, intend to express

any opinion as to the correctness or incorrectness of the decision referred to. It is sufficient to say that, taking all the provisions of the Code together, it is manifest that the legislature did not intend section 1205 to apply to cases of this kind, where the amount of the fine is not left discretionary with the court, and where the extreme penalty which may be imposed is left uncertain and dependent upon evidence as to the value of the property taken. The Penal Code provides that "all provisions are to be construed according to the fair import of their terms, with a view to effect its object, and to promote justice." Section 4. Of course, the legislature has the power to provide for the collection of fines by imprisonment at a certain rate per day, in cases where a fixed term of imprisonment is also imposed, but in such cases it should clearly appear that such is the intent of the legislature.

The petitioner claims that the superior court had no jurisdiction of the offense with which he was charged, and that under the decision in Green v. Superior Court, 78 Cal. 556, 21 Pac. Rep. 307, 541, the judgment should be declared void for that reason. The case referred to is not in point. The offense named in section 532 is punishable by imprisonment in the county jail not exceeding one year, and by fine not exceeding three times the value of the property. A fine must in all cases be imposed; there is no alternative. It must be three times the value of the property. It may be more than $1,000. The police judge's court, therefore, has not jurisdiction of this offense. As the petitioner has served more than the term of imprisonment prescribed by the statute, he is entitled to his discharge: It is ordered that the petitioner be discharged from custody.

We concur: Fox, J.; WORKS, J.; SHARPSTEIN, J.; MCFARLAND, J.

*

Code Civil Proc. Cal. p. 686, provides that "no creditor whose debt is provable under this [the insolvency] act shall be allowed, after the commencement of proceedings in insolvency, to prosecute to final judgment any action therefor against the debtor until the question of the debtor's discharge shall have been determined, and any such suit or proceeding shall, upon the application of the debtor or any creditor, be stayed to await the determination of the court in insolvency on the question of discharge." An action was brought against the petitioner in the justice's court on a promissory note, and an attachment levied on his property, and he filed his petition in insolvency, and the property attached was released, and he filed his answer in the justice's court, setting up the insolvency proceedings; but plaintiff obtained, from the superior court in which the insolvency proceedings were pending, an order permitting the justice's court to proceed to judgment. Held, that a writ of prohibition would be granted.

In bank. Writ of prohibition to justice's court, Monterey county.

This is an application for a writ of prohibition by Hayne to prevent the justice's court of Monterey county proceeding to judgment in a cause pending before it.

Geil & Morehouse, for petitioner. N. A. Dorn and W. M. R. Parker, for respondent.

WORKS, J. This is an application for a writ of prohibition to prevent the respondent proceeding to trial and judgment in a cause pending before it. An action was brought against the petitioner in the justice's court on a promissory note, and an attachment was issued, and levied on his property. The petitioner filed his petition in insolvency, and the property attached was released. He filed his answer in the justice's court, setting up the insolvency proceedings; but the plaintiff applied to the superior court, in which the insolvency proceedings were pending, and procured an order from that court permitting the justice's court to proceed with the cause. The petitioner moved the justice's court to desist from further proceedings, but his motion was denied; and, the court being about to proceed to judgment, this writ was applied for.

Section 45 of the insolvency act (Code Civil Proc. p. 686) provides: "And no creditor whose debt is provable under this act shall be allowed, after the commencement of proceedings in insolvency, to prosecute to final judgment any action therefor against the debtor until the question of the debtor's discharge shall have been determined; and any such suit or proceeding shall, upon the application of the debtor or any creditor, or of the assignee, be stayed to await the determination of the court in insolvency on the question of discharge." There are certain provisions in the section authorizing the continuation of proceedings in certain cases, but this case is not within any of them. This is a plain and direct prohibition against any further proceedings in the justice's court; and the petitioner, having brought himself within the statute, is entitled to the writ prayed for. The respondent does not contend that it has the right to proceed, but claims that in doing so it would not exceed its jurisdiction, but would only commit an error that could be reached by appeal. We cannot agree to this proposition. A court that proceeds in the trial of a cause against an express prohibition of a statute is exceeding its jurisdiction, and may be prevented by prohibition from this court. The case of Bandy v. Ransom, 54 Cal. 87, is not in point. At the time it was decided the insolvency act in force contained no prohibition against proceedings in other courts after the commencement of insolvency proceedings. The provision of the statute referred to is a salutary one, calcu lated to prevent the swallowing up of insolvent estates in unnecessary litigation, and should be enforced. Conceding that an ap peal might have been taken, it was not an

BILL OF EXCEPTIONS-SETTLEMENT.

1. Code Civil Proc. Cal. § 652, which provides that "if the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same," does not apply to a case where the trial judge has refused to settle a statement or bill of exceptions, but to a case where, in settling a bill, he refuses to allow an exception that ought to be allowed.

2. Though no rules on the subject have been prescribed by the supreme court, one who applies to it under this section should set forth in his petition fully and specifically the very exception which he presented to the trial judge, and which he avers the judge wrongfully refused to put in the bill, and also the evidence on which he bases the truth of his proposed exception, so that the supreme court can see on the face of his petition what his alleged grievance is.

In bank. Application to settle bill of exceptions in superior court, city and county of San Francisco; F. W. LAWLER, Judge.

T. I. Bergin, for plaintiff. D. L. Smoot, for defendants.

MCFARLAND, J. This cause is now before this court upon a petition of defendants, in which it is set forth that the judge of the superior court, in which the cause was pending, "refused to settle and certify" a bill of exceptions presented to him by petitioners; and they pray that this court "will settle, and have certified, the said bill of exceptions in accordance with the provisions of section 652 of the Code of Civil Procedure." Plaintiff demurs to the petition upon various grounds, which present the question whether or not it is sufficient.

Section 652 was not intended to apply, and does not apply, to the case where a trial judge has refused to settle a statement or bill of exceptions. The remedy for such a refusal, if wrongful, is mandamus to compel him to act. The law does not impose upon the appellate court the general duty of settling a bill of exceptions. Section 652 applies to a case where the trial judge, in settling a bill, refuses to allow an exception which ought to be allowed. The language is, "If the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same,"—that is, to prove the exception which the judge is alleged to have refused to allow in accordance with the facts. The section further provides that "the application may be made in the mode and manner, and under such regulations, as that court may pre

scribe." No regulations on the subject have been prescribed by this court, for rule 29 does not apply. But, in the absence of such regulations, the petitioner should set forth fully and specifically the very exception or exceptions which he presented to the judge, and which he avers the judge wrongfully refused to put into the bill, and also, we think, the evidence upon which he bases the truth of his proposed exceptions, so that this court can see on the face of the petition what his alleged grievance is. Section 189 of the old practice act was on this subject the same as section 652 of the Code; and, referring to the former, this court said in Wormouth v. Gardner, 35 Cal. 228: "A motion to correct a statement or exceptions, where the court below refuses to make the same conform to the facts, is an original proceeding in this court, and must be instituted by a petition in writing, setting forth at length the exceptions which were taken at the trial, and not allowed by the judge, and so much of the evidence as may be necessary to illustrate them. * * * The fact that this court has not as yet prescribed any rules for the government of such proceedings does not relieve a party from the necessity of inaugurating them in the manner dictated by the statute." In the case at bar the petition does not contain a copy of the exception alleged to have been presented to the judge, or of any evidence. The averments are merely that a bill of exceptions was presented, and that the judge "refused to settle and certify the said bill of exceptions." The theory of the petition seems to be that this court, with a few general averments before it about the conduct, in the premises, of the judge of the trial court, will put itself generally in the place of that court, and proceed to construct for it an original and complete bill of exceptions. Such is not the meaning of the Code. We think that the petition is entirely insufficient. Prayer of petition denied, and proceeding dismissed.

We concur: BEATTY, C. J.; WORKS, J.; PATERSON, J.; SHARPSTEIN, J.; Fox, J.

(83 Cal. 83)

HYDE V. BOYLE et al. (No. 13,481.) (Supreme Court of California. Feb. 1, 1890.) In bank. Application by Thornton and others, appellants, to settle bill of exceptions in superior court, city and county of San Francisco; J. P. HODGE, Judge.

George H. Buck and Edward F. Fitzpatrick, for petitioners. T. M. Osment, for respondents.

Fox, J. This is an original proceeding in this court to settle a bill of exceptions, taken on behalf of petitioners, who are appellants in the aboveentitled cause.

We have examined the petition and answer thereto, and are of opinion that on at least one of the points made on their appeal the petitioners are entitled to take an appeal, and be heard thereon; and that under the decision of this court in the case of Herrlich v. McDonald, 80 Cal. 472, 22 Pac. Rep. 299, the proper mode of bringing the matter up on an appeal is by bill of exceptions. They are therefore entitled to have a bill settled and allowed. But

this court, in bank, has recently held, in the case of Landers v. Landers, ante, 126, (No. 13,464, filed January 8, 1890,) that this is not the proper remedy in a case like the one here presented; that this court cannot substitute itself for the court below in the settlement of a general bill of exceptions. On the authority of that case this application must be denied, and the parties left to the remedy therein suggested, if the judge below still persists in his refusal to settle the bill. So ordered.

1. A complaint in an action to enforce a mechanic's lien, in which the special contract between contractor and owner is stated, can be changed by amendment into an action on the contract, in which the contract may be counted on specially, or the common counts in indebitatus assumpsit may be used, and the special contract is admissible in evidence under the common counts.

2. Where a waiver of matters stated in requests for instructions may be inferred by the jury from the evidence, it is error to give the requested instructions, which omit all reference to a waiver, and ask that a verdict be rendered on the facts stated in the requests.

3. Where defendants move for a nonsuit on the ground that the claim is barred by the statute of limitations, but ask no direction to the jury on this point, and the court makes no charge in regard to it, the point as to the bar of the statute of limitations cannot be considered on the recor presented to the appellate court.

4. A motion for nonsuit on the ground "that the proof shows that the claim is barred" is properly denied where the cause of action is set up in three counts, and the statute is only pleaded to tw

In bank. On rehearing. For opinion in department, see 21 Pac. Rep. 1097.

This action was originally brought by Castagnino against P. Balletta et al. to foreclose a mechanic's lien. Judgment for plaintiff, and defendants appeal.

Tilden & Tilden, for appellants. M C Hassett, for respondent.

THORNTON, J. This action was originally brought to foreclose a mechanic's lien for $1,395.50 on a block of buildings in the city of San Francisco. The buildings were erected by plaintiff for defendants under a written contract which provided that plaintiff should furnish all the materials, and do the work, according to plans and specifications made by George Bordwell, architect, and receive therefor the sum of $9,800, payable in installments as the work progressed, the last payment to be made "when the houses shall be completed, each in all its parts, and accepted by the architect." The $1,395.50 consisted of an unpaid balance of the contract price, and $375 alleged to be due for extra work and materials. The case was tried, and judgment rendered for plaintiff. An appeal was taken by defendants from the judgment and an order denying them a new trial, and the judgment and order were reversed on authority of Loup v. Railroad Co., 63 Cal. 97. The

The

case came on again for trial, and the plaintiff was allowed, over the objections of defendants, to file an amended complaint in indebitatus assumpsit. It contained three counts. The first alleged an indebtedness from defendants to plaintiff of $1.020.50 for work and labor done, and materials furnished, in the erection of a block of buildings in the city of San Francisco. The second alleged an indebtedness of $270 for extra work done and materials furnished in the erection of the said block of buildings. And the third alleged an indebtedness of $105 for putting a door in defendants' building, and constructing a sidewalk in front thereof, at their special instance and request. The prayer was for judgment for $1,395.50, the aggregate of these amounts, with interest and costs. defendants, by their answer, denied that they were indebted to plaintiff in the sum of money named in the complaint, or in any sums or sum whatever; and to the first two counts they pleaded the statute of limitations. They then alleged that the labor and materials sued for, except the last item of $105, were furnished under a written contract, which was executed by the parties on the 26th of April, 1876, and a copy of which was set forth and made a part of the answer. They further alleged that they complied with all the conditions of the contract on their part, and paid plaintiff during the progress of the work the sum of $9,104. but that plaintiff failed to comply with the conditions of the contract on his part; that he omitted to put in the buildings many things required by the contract and specifications, 'and that the value of the articles and work omitted was $150; that the buildings were not completed within the time named in the contract, and defendants were damaged thereby in the sum of $900; that the foundation was not put down to solid ground, and by reason thereof the buildings settled, to the damage of the same in the sum of over $1,000. The prayer was for judgment against the plaintiff for $1,500, and costs of suit. The case was tried before a jury, and the verdict and judgment were for plaintiff. Defendants moved for a new trial, which was denied, and have appealed from the judgment and order.

When the trial commenced, the plaintiff first introduced in evidence the building contract, a copy of which is set out in the answer, and the specifications referred to therein. He then introduced evidence showing: That the terms of the contract were subsequently changed in certain respects by agreement of the parties. That he proceeded to construct and complete the buildings according to the plans and specifications; that he performed certain extra work, which was provided for by an indorsement on the contract, and for which he was to receive $270. That he also placed an extra door in one of the houses, by direction of the architect, at a cost of $15, and by an agreement with defendants laid a new sidewalk in front of the building, for which they were to pay him