the plaintiffs "have duly presented their claim for the value of said vault to the Board of Supervisors of said county of Alameda, for allowance, and that said Board have rejected said claim and the whole thereof."

This averment is insufficient. It is the averment in general terms of the performance of a condition precedent prescribed by the statute: "In actions upon contracts a general allegation of performance of conditions precedent is declared sufficient by our statute. But a general allegation of the performance of conditions prescribed by a statute has not been so declared, and is not, therefore, sufficient." (Himmelman vs. Danos, 35 Cal. 441.)

"When a pleader wishes to avail himself of a statutory privilege or right given by particular facts, he must show the facts." (Dye vs. Dye, 11 Cal. 167.) In People vs. Johnson, 24 Cal. 630, the relator claimed title under the location of a school land warrant, and the complaint averred "that said location was duly and properly made, and in all respects according to the provisions of said Act." In commenting on the sufficiency of this averment the Court says, "The Act prescribes the conditions upon which the title of the State to the five hundred thousand acres donated to herby the General Government may be secured. These conditions are conditions precedent, and their performance must be specifically averred. It is for the Court, and not the pleader, to say whether those conditions have been duly complied with. The facts showing such performance must be pleaded. In all cases except contracts, the performance of conditions precedent must be specially pleaded." In each of these cases the question arose on a general demurrer to the complaint. The averment that the plaintiffs "duly presented their claim” is not sufficiently specified, and states only a conclusion of law. It should have stated the facts relied upon as constituting a due presentation, to enable the Court to determine whether it was properly presented.

Judgment reversed and cause remanded.

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No. 5078.

MCFADDIN vs. ELLMAKER ET AL.

EVIDENCE.--Plaintiff offered to prove certain statements made by the party under whom defendant claimed title, admitting that plaintiff's ancestor was the owner of the premises and in possession in his own right. The Court below sustained an objection. HELD : Error that under section 1849 of Code of Civil Procedure, the evidence was admissible, the plaintiff and defendant relying upon possession alone.

PPACTICE.-An action is maintainable by the heir notwithstanding the pendency of an ad

ministration.

BY THE COURT.

The plaintiff proved an actual prior possession by his ancestor. The defendant deraigned his right from one Patrick McFaddin, and introduced a witness who testified to admissions of Charles McFaddin, Sr., plaintiff's ancestor, made while in possession, to the effect that he held under Patrick.

In rebuttal, plaintiff offered to prove that Patrick McFaddin, prior to the transfer of his alleged right, had made certain statements tending to admit that Charles Sr., plaintiff's ancestor, was the owner of the premises, or a portion of them, and in possession in his own right. The Court below sustained

an objection to the offer.

follows:

Section 1849 of the Code of Civil Procedure is as

· Where, however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former."

It is not necessary to decide in this case whether the declaration of the third party would be admissible, were such person still living.

Nor is it necessary to decide whether, under the Code, the declaration would be admissible where it was incompatible with the rule that parol evidence is not admissible to vary dispositive writing. (Wharton, Law of Ev., § 1156.) In the present case, the plaintiff and defendant relied upon possesion alone, and no conveyance or writing purporting to be executed by Patrick McFaddin to plaintiff or his ancestor was offered or introduced.

The action is maintainable by the heir, notwithstanding the pendency of an administration. (Code Civil Procedure, § 1452.)

Judgment reversed and cause remanded for a new trial.

No. 5292.

SMITH vs. GEORGE.

BY THE COURT.

It is not necessary to determine in this action whether, under any circumstances, an action to recover damages for the malicious prosecution of a civil action, when no arrest of the person of the defendant, or seizure of his property has occurred, can be maintained in this State. The adjudged cases in England and America are conflicting upon the question, and depending to a considerable degree, it would seem, upon the prevailing statutory provisions as to the recovery of costs by the defendant upon the determination of a civil action in his favor.

But assuming, in favor of the plaintiff here, that such an action will, under proper circumstances, obtain in this State, we are of opinion that, upon the facts incontestibly appearing in this case, there was probable cause for the bringing of the action in which the defendant here was a plaintiff. It was the plain duty of the plaintiff here (if he intended to retain the possession of the land), under the terms of the decree of the Probate Court of San Mateo county, to pay the expenses mentioned in that decree, and upon his refusal to do so the defendant here was certainly at liberty, and perhaps it was his absolute duty, to bring the action of ejectment—as much so as if the plaintiff here had refused to pay the amount of the promissory note mentioned in that decree.

Judgment reversed and cause remanded.

H

Supreme Court of the United States.

ABSTRACT OF DECISIONS.

and was re

PRACTICE IN EQUITY-FORECLOSURE OF RAILWAY MORTGAGE-APPLICATION OF STOCKHOLDERS TO BE MADE PARTIES AND FOR LEAVE TO APPEAL, AFTER SALE.-Ex parte Cutting et al. Petition for mandamus. Opinion by the Chief Justice. In a suit in equity, to foreclose a railway mortgage, Akers, a stockholder, filed a cross-bill on behalf of himself and other stockholders. Subsequently these petitioners filed a petition asking to be joined with Akers as parties defendant. No action was ever had on this petition, and the petitioners were never recognized or acted as parties in the suit. Not long after the filing of this petition Akers voluntarily dismissed his crossbill. Afterward, a decree of foreclosure was entered, a sale was made by a master, ported to the court, and a motion was made to confirm the same. On the day following this motion the petitioners, acting "not only for their own benefit, but for the benefit of all other holders or owners of the capital stock of said Pacific Railroad, who come in and contribute to the costs and expenses necessary for the prosecution of this suit," filed a motion and petition "for liberty to intervene to set aside the decree of June 6, 1876, and sale, and for liberty to demur, answer, plead, or appeal, as advised," setting forth various frauds and other matters of defense to the foreclosure suit, and praying for appropriate relief. The court below refused liberty to intervene, and refused, October 3, to grant an appeal from such order. The petitioners thereupon applied to the Supreme Court for a mandamus to compel the court below, or a judge thereof, to grant this motion. This relief was by the Supreme Court denied. In giving judgment the Chief Justice said: "We are aware that there are cases in which persons have been treated as parties to a suit after having filed a petition for leave to come in, when no formal order, admitting them, appears in the record, but in all such cases it will be found that they have acted, or have been recognized, as parties in the subsequent proceedings in the case. Thus, in Myers vs. Fenn, 5 Wall. 205, the petitions were filed without any order of the court, but no objection was made, and the hearing went on as if an order had been granted;' and in Harrison vs. Nixon, 9 Pet. 491, 'inquiries were made as to the respective claims,' as asked for, and ‘as to all parties who were claimants before the court by bill, petition, or otherwise, their complaint, petition, and proceedings were dismissed.' So in Ogilvie vs. Ins. Co., 2 Black, 540, petitions were filed by certain creditors praying to be made parties, and that a receiver might be appointed, which was done; and in Bronson vs. R. R. Co., 2 Wall. 304, certain stockholders in a corporation were permitted to appear in a cause to which the corporation was a party, and present their several claims by answer in the name of the corporation; but this having been afterward found to be rregular, the answers were considered 'rather by indulgence than a matter of strict right as the answer of the individual stockholders.' Upon the same principle it was held, in R. R.] Co. vs. Bradley, 7 Wall. 577,

·

*

* *

that, where an appeal had been prayed for, and subsequently an appeal bond, approved by one of the judges, had been filed in the court, it would be inferred that an appeal had been allowed, although there was no express order to that effect in the record. From this it is apparent that if one wishes to intervene and become a party to a suit in which he is interested he must not only petition the court to that effect, but his petition must be granted; and while it is not necessary for him to show that he has actually been admitted, by an express order entered upon the record, he must at least make it appear that he has acted, or has been treated, as a party. That, as we have seen, is not the case here. These petitioners seem to have been content to leave their interests in the hands of Akers, and when he went out they went with him." Upon this state of facts, it is impossible to say that the petitioners, or any of them, have established their right to appeal as actual parties to the suit before the decree. No appeal lies from the order of October 3, refusing them leave to intervene and become parties; for that was only a motion in the cause, and ot an independent suit in equity, appealable here. Neither can these petitioners appeal as stockholders. Only parties, or those who represent them, can appeal. The stockholders do not represent the corporation, but for some purposes the corporation represents them. They are sometimes admitted as parties to a suit, for the purpose of protecting their own interests in the corporation against unfounded and illegal claims against it, but this 'remedy is an extreme one, and should be admitted by the court with hesitation and caution. Bronson vs. R. R., 2 Wall. 302. It is always addressed to the sound, judicial discretion of the court, That we cannot control by mandamus. We need not consider what rights these petitioners would have if Akers had not withdrawn his intervention before the decree. After his withdrawal they had no representative stockholder party to the suit, and their position is the same as it would have been if no parties had ever intervened in their interest. The petition for mandamus is denied."

"FEDERAL QUESTION "-STATE TAXATION OF NATIONAL BANKS.-Waite vs. Dawley. Error to Supreme Court of Vermont. Opinion by Mr. Justice Miller (in full), as follows:

"This is a writ of error to the Supreme Court of the State of Vermont, and, as is frequent in writs to the State Courts, it is objected that there is no jurisdiction. The plaintiff in error was cashier of a national bank in that State, and the judgmeut which this writ brings here for review was rendered against him for penalties imposed by a statute of that State, for his refusal to transmit to the clerk of the town of Brattleboro a true list of the shareholders of the bank who resided in that town, with the number of shares held and the amount paid on said shares. The record shows that the defendant's counsel claimed in defense that, as said bank was organized under the law of Congress referred to in plaintiff's declaration, the defendant, as such cashier, was amenable to no law but said law of Congress, and that the State Legislature had not power to prescribe or define his duties as such cashier." That this proposition raised what is called a federal question within the meaning of

the Act of 1867, admits of no doubt. We are also of the opinion that no judgment could have been rendered against defendant in the State courts without holding, and, in effect deciding, that this plea was bad; for if the Slate could not impose the duty of making such a list on the cashier by reason of the Act of Congress, or the Constitution of the United States, then the defendant was guilty of no offense, and the judgment is for that reason erroneThis plain proposition can not be evaded by an opinion delivered by the Supreme Court of that State. This court, therefore, has jurisdiction.

ous.

"And the single question raised by the record is, whether the statute of the State is void which requires the cashier of each national bank within the State, and the cashiers of all other banks, to transmit to the clerks of the several towns in the State in which any stock or shareholder of such banking association shall reside, a true list of the names of such stock or shareholders, with the number of shares standing against the name of such share or stockholder, on the books of such banking association, together with the amount of money actually paid in on such share on the first day of April.' The propesition on which this statute is asserted to be void is, that Congress has legislated upon the same subject, and that where there exists a concurrent right of legislation in the States and in Congress, and the latter has exercised its power, there remains in the State no authority to legislate on the same matter. It is not necessary to dispute that proposition, nor, when stated in this general langusge, can it be controverted. It is none the less true, however, that the line which divides what is occupied exclusively by any legislation of Congress from what is left open to the action of the States, is not always well defined, and is often distinguished by such nice shades of difference on each side as to require the closest scrutiny when the principle is invoked, as it is in this case. We have more than once held in this court that the national banks, organized under the Acts of Congress, are subject to State legislation, except where such legislation is in conflict with some Act of Congress, or where it tends to impair or destroy the utility of such banks as agents or instrumentalities of the United States, or interferes with the purposes of their creaiion. This doctrine was clearly and distinctly announced in the case of The Bank vs. The Commonwealth of Kentucky, 9 Wallace, 353, and that case has often been referred to since, with approval, in this court. The statute of Kentucky required ‘the cashier of a bank, whose stock is taxed, to pay into the treasury the amount of the tax due. If not, he was to be liable for the same, with twenty per cent. upon the amount.' The stock thus to be taxed was, as in the present case, the stock of the shareholders, as authorized by the Act of Congress, and that statute went a step further than to require a list of the names of these shareholders and the amount of their stock, and obliged the cashier to collect the tax out of the dividends and pay it over to the State. The precise point raised here was taken there and overruled by this court, namely, that the laws of the State could impose no such duty on the banks organized under the laws of the United States. The case is directly and conclusively in point. It seems to have been supposed that because Congress has required of each national bank that a list of its stockholders shall be kept posted up in some place in their business office, this covers the same ground as that covered by the Ver