sufficient sureties, in an amount sufficient to satisfy such demand, besides cost, or in an amount equal to the value of the property which has been, or is about to be, attached; in which case, to take such undertaking." Under this provision, it is the duty of the sheriff, instead of levying the writ of attachment, to accept the undertaking in lieu of such levy; or, if he has made the levy and taken the property into custody, to accept the prescribed undertaking when tendered prior to the return of the writ and release the property so attached. (Hesser v. Rowley, 139 Cal. 410, [73 Pac. 156].) The making of his return to the writ divests the sheriff of any statutory power or authority to release the property so held by him under the writ of attachment. After the return thereof, a defendant seeking the release of property must apply to the court for an order of release pursuant to the provisions of section 554 and section 555, Code of Civil Procedure, or secure such release by application to the plaintiff upon such terms as may be mutually agreed upon. It is clear the release was not obtained under an order of court. Neither is there anything in the allegations of the complaint, nor in the recitals of the undertaking, to indicate that it was given to the sheriff as security pursuant to the provisions of section 540. On the contrary, it is alleged the bond was "made and executed to this plaintiff," and "that the attachment heretofore mentioned under which the sheriffs of the aforesaid counties (Los Angeles and Ventura) held as security the property of the said H. J. Stocker, and for the release of which attachment the aforesaid bond was given, was by this plaintiff released, in consideration of said bond so given by these defendants. The directions (Code Civ. Proc., sec. 540) in the writ of attachment require the sheriff to make the levy and retain the property in custody only in case the defendant fails to give the prescribed undertaking, which, as we have seen, may be given him any time before he makes his return of the writ. Inasmuch as his authority to accept the undertaking and release the attachment is by virtue of the directions to him contained in the writ, the undertaking, the giving of which is authorized by section 540, should, by appropriate wording, show that it is such a one as he was directed to accept, and given pursuant to the command of the writ. The fact that, as appears from the complaint, the bond was given for the release of the property attached in both Los Angeles

and Ventura counties, and that it was released by plaintiff, together with the fact that the undertaking is in form a common-law bond, fully justifies the conclusion that the undertaking was not given to the sheriff as security pursuant to said section 540. It therefore follows that, inasmuch as the instrument declared upon was not a statutory bond, the issuance of execution against the judgment debtor and return thereof unsatisfied was not a necessary prerequisite to the maintenance of suit thereon. Appellant cites Bailey v. Aetna Indemnity Co., 5 Cal. App. 740, [91 Pac. 416], wherein the court says: "For the protection of the surety it is required that an offer shall be first made to execute against a judg ment debtor. Failing in this, the substitute for the attached property is immediately available and the bond may be enforced at once." The point under consideration and to which this language was directed was the right of the obligee to institute suit upon the bond before the expiration of six months after the rendition of the judgment against the judgment debtor, it being claimed that the action on the bond had been prematurely brought. Moreover, we there held that the undertaking, owing to the peculiar wording thereof, aided by the allegations of the complaint, was a statutory bond.

It does not appear from the complaint that any demand was made upon the judgment debtor that he pay the judgment; nor is there any allegation showing the amount of the judgment to be unpaid. The absence of these allegations renders the complaint fatally defective. As appears from the undertaking, the promise on the part of the obligors therein was "that in case the plaintiff recover judgment in the action, defendant will, on demand," pay the same. It thus clearly appears that the promise to pay was conditional, and the bond imposed no obligation on the sureties, unless a demand for payment of the judgment was first made upon defendant Stocker. The allegation of such fact and the nonpayment of the judgment, or part thereof, was essential to the statement of a cause of action against these defendants. (Mullally v. Townsend, 119 Cal. 47, [50 Pac. 1066]; Pierce v. Whiting, 63 Cal. 538.) Following the allegation of the recovery of a judgment for a specified sum, it is alleged "that thereafter on execution plaintiff incurred accruing costs of $1.50," for which, and the amount of the judgment, plaintiff 11 Cal. App.-43

prays judgment. Such averment as to the costs expended cannot be regarded as an allegation of demand of payment made upon the judgment debtor. The allegation of a demand of payment made upon the sureties and their refusal to pay is not inconsistent with the fact that the judgment debtor may not have paid the same.

The judgment appealed from is reversed, with instructions to the trial court to sustain the demurrer and to grant leave to plaintiff to amend his complaint, if he be so advised.

Allen, P. J., and Taggart, J., concurred.

[Crim. No. 135. Second Appellate District.-November 6, 1909.] THE PEOPLE, Respondent, v. SANFORD BRENT, Appellant.

CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON WITH INTENT TO MURDER-DEFENSE OF INSANITY-EVIDENCE.-Upon the trial of a defendant charged with an assault with a deadly weapon with intent to commit murder, where the defense was insanity of the defendant, evidence of his acts and declarations after as well as before the time of the offense, which tend to show his mental condition at that time, are admissible.

ID.-OBJECTION TO QUESTION NOT SHOWING ON ITS FACE RELEVANCY OR MATERIALITY-STATEMENT OF EXPECTED PROOF REQUIRED.—In order that the court may intelligently rule upon an objection to a question which does not of itself show its relevancy and materiality, it is imperative that counsel should state to the court what is expected to be proved.

ID.-EFFECT OF ABSENCE OF STATEMENT.-Without the statement of what is expected to be proved, in such case, the trial court cannot determine whether the facts sought to be established by the question are pertinent or tend to prove any matter involved in the issues, and this court cannot, in the absence of such statement, determine whether or not the substantial rights of the defendant have been prejudiced by the ruling. ID.-DISCRETION OF COURT-LAPSE OF TIME BETWEEN CONVERSATIONS AND DATE OF OFFENSE.-If questions were explained by statements of what was intended to be proved, the admissibility thereof, having in view the lapse of time between the conversations and the date of

the tragedy, together with the character of the evidence offered, was very much within the discretion of the court. ID.-QUESTIONS RELATING TO DISCORDS IN MARRIED LIFE.-Questions as to declarations of the defendant as to his wife's conduct and relations with another man, and the discords connected with his married life, which were not made to appear as reflecting any light upon the mental condition of the accused, and questions asked of the wife on cross-examination, the relevancy of which does not appear, were properly excluded.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, Judge.

The facts are stated in the opinion of the court.

Wesley H. Beach, for Appellant.

U. S. Webb, Attorney General, and George Beebe, Deputy Attorney General, for Respondent.

ALLEN, P. J.-The defendant and appellant was accused by the district attorney of Los Angeles county, by information, of the crime of assault with a deadly weapon with intent to commit murder, and his conviction followed. This appeal is from the judgment imposed by reason thereof, and from an order denying a new trial.

The defense chiefly relied upon was insanity. The principal assignments of error relate to the action of the court in sustaining objections to testimony offered by defendant. One witness in behalf of the defense testified that she was a nurse at the hospital of which defendant was a patient; that "he seemed to be laboring under a nervous strain, and it looked as though he had been drinking." The witness was then asked by defendant's counsel if he made any statement regarding the cause of his condition; "what statement he made in relation to his domestic affairs"; "what statement, if any, was made by the defendant at that time regarding any lawsuit pending"; and, again, "what statement, if any, regarding his property." Another witness was asked questions of similar import; while still another who, having seen and conversed with defendant at the hospital, testified: "He was very nervous and absent-minded. Instead of answering

my questions, he would dismiss them from his mind as if he could not comprehend what I had said." Thereupon counsel for defendant asked, "What was the question you asked him?" and, in addition, propounded questions similar to those asked other witnesses, as before stated. All of these witnesses united in an opinion that defendant acted in an irrational manner. The court sustained an objection to the questions relating to what was said by the defendant to these various witnesses.

The proposition advanced by appellant, to the effect that when the mental condition of one at a particular time is in issue, conduct, acts and declarations after, as well as before, the time in question are admissible in evidence, if sufficiently near in point of time, and if they appear to have any tendency to show what that mental condition was, may be accepted. It follows that the questions propounded by defendant, to which objections were sustained, under certain circumstances might have been proper, if they were intended to develop facts the establishment of which would tend to prove insanity. But that a court may intelligently rule upon an objection urged to a question which does not of itself show its relevancy or materiality, it is imperative that counsel should state to the court what is expected to be proven. Without such statement, the court cannot determine whether the facts sought to be established by the question are pertinent or tend to prove any matter involved in the issues, and this court cannot, in the absence of such statements, determine whether or not the substantial rights of the defendant have been prejudiced by the ruling. (People v. Casselman, 10 Cal. App. 234, [101 Pac. 693]; People v. Ellsworth, 127 Cal. 596, [60 Pac. 161].) Even had these questions so propounded been followed by statements of what was expected to be proven, the admissibility thereof, having in view the lapse of time between the conversations and the date of the tragedy, together with the character of the evidence offered, was very much within the discretion of the court. (Estate of McKenna, 143 Cal. 586, [77 Pac. 461].) The criticism above made applies equally to other questions asked concerning conversations of defendant with other witnesses as to his wife's conduct and relations with another man and the discords connected with his married life. None of these