$5,713, with interest. Appellants also appeal from an order denying a new trial. The real contest is between the intervener, Tilton, who was city and county surveyor and engineer from the first Monday in January, 1891, to the first Monday in January, 1893, and the respondent, who was such surveyor and engineer from the first Monday in January, 1893, to the first Monday in January, 1895. The law which provides for work upon streets, lanes, etc., and for the construction of sewers within municipalities, requires that a contractor for such work "must advance to the superintendent of streets, for payment by him," certain enumerated costs, and "other incidental expenses" (St. 1889, p. 162); and it is further provided that "the term 'incidental expenses,' as used in the act, shall include the compensation of the city engineer for work done by him." On December 13, 1893, while respondent was city surveyor and engineer, the superintendent of streets, who was then W. W. Ackerman, in pursuance of preliminary steps and orders regularly taken and made, entered into a written contract in due form with one W. L. Prather, Jr., for the construction by the latter of what is called the "Richmond Outlet Sewer." Ackerman was superintendent until the first Monday of January, 1895, when the present appellant became superintendent. This contract was subsequently assigned by Prather to Henry Matthews, who duly performed the work provided for in the contract, and completed the sewer prior to January 5, 1895. The resolution of intention, No. 8,629, unuer which the work above mentioned was done, was passed May 1, 1893, and approved by the mayor May 4, 1893. By resolutions No. 8,550, passed April 10th, No. 8,718, passed May 22d, and No. 8,882, passed June 19th,-all in 1893, while respondent was city engineer,-the board of supervisors directed the respondent to examine certain plans, etc., which had formerly been prepared, and report concerning the same; to "make a diagram of the property affected or benefited by the proposed work of constructing" said outlet sewer, "as expressed in resolution of intention No. 8,629"; and to "prepare plans and specifications for the sewer and work provided for in said resolution of intention No. 8,629." The court below found that the respondent complied with these several requirements, and there is sufficient evidence to support the finding. On June 19, 1893, the board passed resolution No. 8,868, by which said work was ordered to be done. On November 6, 1893, the board passed resolution No. 9,489, by which it fixed the compensation of respondent for his services as surveyor and engineer for surveying, making plans and specifications and diagrams in relation to said work at the sum of $7,515; and the court found, upon sufficient evidence to uphold the finding, that said resolution was not passed under misapprehension or mistake, or through any false representations made to the board by or on behalf of respondent, as charged by appellants. The

court also found that afterwards, during the progress of the work, respondent did other.engineering work, in connection with said sewer, of the reasonable value of $1,008; and that his compensation therefor, under fees theretofore fixed by the board, was the said sum of $1,008; making his whole demand $8,523. For this latter sum he presented to the superintendent of streets a demand, itemized and verified, with a credit thereon of $2,810, which had been paid him by the assignee of said contract, leaving a balance unpaid of $5,713, which is the money involved in this action. The superintendent made an assessment to cover the expenses of said work, and included therein the sum of $8,523, the amount of respondent's demand as compensation for engineering services, and no other sum of money was included in the assessment for any engineering services. Upon the delivery of the assessment, on June 20, 1895, by the superintendent to the assignee of the contractor, the latter paid to the former (defendant and appellant) the said sum of $5,713. The assessment was made upon a certificate of the respondent that the work had been completed.

Upon the foregoing facts,-if there were none other to be considered,-it is clear that the judgment of the court below was right. The resolution of intention (No. 8,629) to have the work done was passed while respondent was surveyor and engineer. Subsequent steps were taken which led to the making of the contract and the completion of the work, all during his term of office. He was required by the board of supervisors to render certain engineering services, and compensation therefor was fixed by the board under authority expressly given that body by the street law (St. 1889, p. 171, § 34, subd. 1). The assessment was made upon the certificate of the respondent that the work had been completed. The exact amount of his demand, $8,523, was included by the superintendent in the assessment as incidental expenses for engineering services, and the balance paid by the contractor for such expenses ($5,713) is in the hands of the superintendent, the defendant and appellant herein. Under these circumstances, it was the clear duty of the appellant Ashworth to pay the said balance to respondent, unless there are other facts which change the legal aspect of the case.

But appellants contend that there are other facts in the case which show the conclusion above indicated to be incorrect. Those facts are briefly as follows: About two years before respondent became surveyor and engineer, on February 2, 1891, the board of supervisors passed a resolution, No. 4,668, by which the intervener, Tilton, who was then surveyor and engineer, was ordered to make an examination of the sewerage system of the Richmond district in anticipation of the construction of the "Richmond Outlet Sewer," hereinbefore referred to. Tilton made such examination, and reported to the board upon the subject. On No vember 9, 1891, the board passed resolution No. 5,979, by which it directed Tilton, as city

engineer, to prepare plans and specifications for a sewer to serve as an outlet for said Richmond district; and Tilton did prepare plans and specifications, and filed the same with the clerk of the board, but the board never expressly approved the same. Afterwards, on

February 8, 1892, the board passed a resolution of intention (No. 6,441) for the construction of said sewer, the plans, specifications, and boundaries of the said district mentioned in said resolution being those prepared by Tilton. On May 23, 1892, the board passed resolution No. 7,037, by which it ordered Tilton to make a diagram of the property to be affected or benefited by the construction of said sewer, and to be assessed to pay the expenses thereof; and, in pursuance of the resolution, Tilton did make a diagram, and file the same with the clerk of the board; but the board never approved said diagram. The plans, specifications, and diagram prepared by Tilton were filed with the clerk of the board, and were marked and called "Sewer Outlet" of said district. But there never was any construction of said sewer under said resolution of intention No. 6,441, for the reason that, under the plans, the sewer was to be constructed in part through private lands, the right of way over which had been given by the owners of said lands; and the persons to whom the contract had been awarded refused to carry it out, on the ground that the resolution of intention and all proceedings thereunder were void, because the street law did not provide for the performance of any street improvement or the construction of a sewer in or through private property. All the proceedings under said resolution of intention No. 6,441 were abandoned. In November, 1892, Tilton presented to the board his verified demand against the city and county of San Francisco, and the treasury thereof, for the sum of $8,500, as compensation to him as surveyor and engineer for the performance by him of the work above stated; and on December 9, 1892, a few days before he went out of office, the board, by resolution No. 8,160, approved and passed to print his said demand for $8,500 against the city and county. Tilton also, after he had ceased to be city engineer and surveyor, filed in the office of the then superintendent of streets his verified and itemized bill in the sum of $8,500 for said services. Afterwards, on March 11, 1893, the street law was amended by the legislature so as to give the board of supervisors power to cause the construction of sewers or sewers with outlets "in, over, or through any right of way granted or obtained for such purpose." Thereafter the board commenced new proceedings for the construction of said outlet sewer, and adopted the resolution of intention No. 8,629, hereinabove referred to, and conducted the proceedings to the completion of the work during the incumbency of the office of surveyor and engineer by the respondent, Fitzhugh, as hereinabove set forth. In said resolution of intention No. 8,629 it was resolved "that it is the intention of the board to order

the following street work in the city and county of San Francisco, according to the plans and specifications prepared by C. S. Tilton, city engineer"; and reference was made to said documents on file in the clerk's office, called "Sewer Outlet," prepared by Tilton, as aforesaid.

It is contended by appellants that under all the facts hereinabove stated, and in accordance with their views of certain other questions of fact which are found adversely to them by the court, it was the duty of the appellant Ashworth to pay to appellant Tilton the said $5,713, as part of Tilton's said claim of $8,500 for engineering services rendered in 1891 and 1892, under the abandoned resolution of intention No. 6,441. Appellants contend that Fitzhugh did not do any real engineering work in connection with said outlet sewer, but that he merely traced and copied the plans, specifications, diagram, etc., which Tilton had prepared under the former resolution of intention No. 6,441. The court found, however, that the district affected and benefited by the work done under the resolution of intention No. 8,629, and to be assessed for the expenses of the work, was "of greater extent and area than the district described in said resolution of intention No. 6,441." The court further found that Fitzhugh made the diagram in question, which included the space of land 50 feet next to and on each side of the right of way of said sewer, as directed in resolution No. 8,629; that said diagram was approved by the board; and that it was "the diagram made by plaintiff, and not the diagram made by C. S. Tilton"; and that, "in making said diagram, plaintiff did not take tracing copies of the diagram prepared by C. S. Tilton." The court further finds "that the drawings, plans, specifications, maps, and diagrams referred to in said resolution No. 8,868 were those prepared as aforesaid by plaintiff, and were not those or any of those prepared by C. S. Tilton." There was evidence sufficient to support these findings of the court, although Fitzhugh was doubt benefited in rendering his engineering services by the work formerly done by Tilton, the evidences of which were on file as public documents in the office of the clerk of the board of supervisors. Tilton may be justly entitled to compensation by the city and county for the work he did in 1891 and 1892, under the abandoned resolution No. 6,441, whether or not he has any legal remedy therefor; but the court correctly held that such compensation could not be legally included as "incidental expenses" of the work done under the subsequent and entirely new resolution of intention No. 8,629, to be paid by the contractor to the superintendent of streets. It is quite evident that the board never allowed Tilton's bill of $8,500 for the purpose of being included in any assessment to be made under the resolution of intention No. 6,441; for, at the

no

time of the passing to print of the resolution approving Tilton's bill, the said resolution No. 6,441 and all proceedings for the construction of the sewer under it had been abandoned. After the amendment of the street law, other and new proceedings were instituted for the construction of the sewer, under resolution of intention No. 8,629, and work done under that resolution could alone be included as "incidental expenses," within the meaning of the statute; and it is to be noticed that the exact amount of Fitzhugh's bill was included by the superintendent in the assessment, although in his answer to the intervention, the superintendent for the first time claims that he intended the assessment to include Tilton's demand. If the demand of Tilton, as well as that of Fitzhugh, had been put in the assessment, the amount thereof would have been over $17,000; and certainly the demand of Fitzhugh for work done under the resolution and proceedings in accordance with which the sewer was actually constructed, which demand was for services ordered by the board during said proceedings, and the compensation for which was approved by the board, constituted, under any view, part of the incidental expenses which the contractor was required to pay to the superintendent before any assessment could be made, and which the superintendent was required to put into the assessment. The work was certainly not done under two resolutions of intention. It was done under the later resolution, No. 8,629, which alone was the foundation of the jurisdiction of the board to proceed with the work, and all "incidental expenses" were necessarily thus connected with the work done in the proceedings had under and in connection with said later resolution. Property holders could not be burdened with expenses incurred under one or half a dozen former abandoned proceedings. This conclusion is not affected by the fact that in resolution of intention No. 8,629 there was a statement referring to the former plans and specifications prepared by Tilton. Plans and specifications do not constitute a necessary part of a resolution of intention. Harney v. Heller, 47 Cal. 15. They are superfluous, and need not be followed. Immediately afterwards the board ordered Fitzhugh to make plans, specifications, diagram, etc., under which the work was carried on and completed.

Under the foregoing views, our conclusion is that the judgment of the court below was right, and should be affirmed. It is not necessary to notice other points, which merely present in different forms the main questions above discussed, which are determinative of the merits of the case.

The appellant Ashworth makes the point here, substantially for the first time, that mandamus is not the respondent's proper remedy. It is true that in his lengthy answer, covering about 18 pages of the printed

transcript, he does say in one place that he "denies that plaintiff has not a plain, speedy, and adequate remedy in the ordinary course of law for the cause of action or proceeding set forth in his said petition and complaint herein"; but the prayer of his complaint is "that the court order the said C. S. Tilton to be brought in and made a party to this action or proceeding." and "that thereupon the court determine to whom the said sum of money be paid," and during the trial no question was raised as to the form of the remedy. Tilton, in his intervention, makes no objection to the form of proceeding, and prays that the said sum of $5,713 be ordered paid to him as part of his claim of $8,500. Under these circumstances we are not called upon to look very closely into the question whether or not the respondent had any other "speedy and adequate remedy." However, as the appellant Ashworth collected the money involved here as superintendent of streets, and now holds it in his official capacity, it is his duty, enjoined upon him by law, to pay the sum to the party entitled thereto; and under these circumstances we think that mandamus was a proper proceeding to enforce the respondent's rights in the premises. Judgment and order appealed from are affirmed.

(119 Cal. 88) PEOPLE v. LOVERN. (Cr. 319.)1 (Supreme Court of California. Dec. 24, 1897.) In bank. Transferred from department 1. For opinion in department, see 51 Pac. 22.

BEATTY, C. J. I dissent from the order denying a rehearing of this case, because I think the superior court erred in a manner extremely prejudicial to the defendant in admitting over his objection hearsay evidence tending to connect him with the conspiracy. The evidence of Britt and Haynes clearly established the fact that they had entered into a conspiracy with McCall to com

1 Rehearing denied.

mit the robbery. Haynes alone gave direct evidence that the defendant had afterwards acceded to the conspiracy. But he and Britt were both allowed, against the objection that it was hearsay, to testify to declarations of McCall to the effect that Lovern was aiding and assisting them. This evidence was clearly incompetent. The declarations of a conspirator that some one else is also a conspirator do not come within the rule that one conspirator is bound by acts and declarations of his co-conspirator in furtherance of the objects of the conspiracy. The fact that one is a conspirator must be proved by competent evidence, and hearsay declarations of others are not competent evidence.

(119 Cal. 401)

Ex parte WRIGHT. (Cr. 377.) (Supreme Court of California. Dec. 21, 1897.) HABEAS CORPUS-WHEN LIES-CRIMINAL LAW

JURISDICTION OF JUSTICE.

1. The proper remedy, where a justice of the peace proceeds with a criminal trial after overruling a motion for a change of venue, is by appeal, and not by habeas corpus.

2. Though the refusal of a justice to change the place of trial, on motion, in a criminal case, supported by affidavit that defendant could not have a fair and impartial trial, may be error, he did not thereby lose jurisdiction, and his judgment in the case was not void.

William Wright was convicted of a misdemeanor, and applies for a writ of habeas corpus. Denied.

Brooks & Trask, for petitioner.

BEATTY, C. J. Application for the writ of habeas corpus upon the ground that the justice of the peace, in whose court the prisoner was convicted (by a jury) of a misdemeanor, was ousted of jurisdiction by the filing of an affidavit by defendant that he had reason to believe, and did believe, that he could not have a fair and impartial trial before said justice by reason of his prejudice and bias. Pen. Code, § 1431, subd. 1. The refusal of the justice to change the place of trial may have been an error, and, if so, the prisoner has an ample remedy by appeal; but the justice did not exceed his jurisdiction in proceeding with the trial after overruling the motion for change of venue. Lowrey v. Hogue, 85 Cal. 600, 24 Pac. 995. His judgment, therefore, is not void, and habeas corpus does not lie. Writ denied.

cutor, and tried to roll him over, but that he resisted, and made a noise, and accused desisted. On cross-examination he testified that accused tried to force him by "coaxing and everything," and that accused said he would not make him do it if he did not want to. Accused testified that he "did not attempt to commit" the crime, but did not say whether he solicited the act, and took hold of prosecutor, and tried to roll him over. Held, that a conviction was justified, under Pen. Code, § 240, providing that an assault is an unlawful attempt, coupled with apparent ability, to commit a violent injury to the person of another, and section 220, providing "that every person who assaults another with intent to commit * the infamous crime against nature is punishable," etc. 2. The fact that there is evidence that one who is claimed to have been assaulted was not put in fear by the alleged assault is not conclusive evidence that the assault was not committed.

* * *

3. Where there is legal evidence from which the jury could find an accused guilty, their recommendation of "extreme mercy of the court" negatives the claim of "passion and prejudice" in rendering their verdict.

Commissioners' decision. Department 2. Appeal from superior court, Merced county; J. K. Law, Judge.

James Wilson was convicted of an assault with intent to commit the infamous crime against nature, and he appeals. Affirmed.

George L. Crocker and J. F. McSwain, for appellant. Wm. Fitzgerald, Atty. Gen., for the People.

HAYNES, C. Appellant was convicted of an assault upon one George Ryan with intent to commit the infamous crime against nature, and was sentenced to imprisonment in the state prison at Folsom for the term of five years. Defendant in due time moved for a new trial. His motion was denied, and hence this appeal. The only point made for reversal is that the evidence is insufficient to justify the verdict. Only two witnesses were examined, namely, the prosecuting witness and the defendant. Both were at the time of the alleged offense inmates of the county jail of the county of Merced, and occupied the same cell and the same bed. The prosecuting witness, in substance, testified: That the defendant solicited his consent to the act, which was refused. That defendant said: "I won't make you do it. I never make any boy do it if he don't want to." That the next night he again refused the solicitations of defendant, whereupon the defendant "grabbed hold" of him, and tried to roll him over. That he resisted, and made some noise, and the defendant desisted. That defendant did nothing after that. Upon cross-examination he repeated the statement of the act constituting the assault, and added: "He was trying to force me that night. He tried to force me by coaxing and everything. Q. That was all,-just coaxed you; just asked you? A. Yes; I said, 'No;' and he said he would not make me do it if I didn't want to do it." Defendant testified that he "did not attempt to commit" said crime on the prosecuting witness. He did not say whether he made the solicitations testified

to by Ryan, nor whether he took hold of him and attempted to roll him over. The jury found him guilty, and recommended him "to the extreme mercy of the court."

It is contended that there was no assault, within the meaning of section 240 of the Penal Code, and that the evidence is insufficient to show that the physical act, alleged to constitute the assault, was committed with the intent charged in the information. Whether appellant "grabbed hold" of the prosecuting witness, and attempted to turn him over, was a question of fact for the jury to determine, as was also the question as to the intent with which it was done. The instructions given by the court to the jury are not brought up in the record, and we must therefore assume that under proper instructions the jury found both of those facts against the defendant; for without such finding, the jury being properly instructed, the conclusion of guilt could not be reached. The mere solicitation to commit the act is not made an offense under our Code; but the solicitations preceding the alleged assault, together with the preparations made by the defendant for the ultimate act, together with the fact testified to by the prosecuting witness that in resisting he made some noise, whereupon the defendant desisted, and told him to say nothing about it, if believed by the jury, was sufficient to justify the conclusion that whatever force was used was with the intent and purpose to commit the crime; and if any appreciable force was used with that intent, and the defendant desisted from fear of detection, whether that fear arose from the noise made by Ryan in resisting, or from a conviction induced by the resistance that, if he persisted, his offense would be made known, the intended act being felonious and against the will of Ryan, it was an assault, within the meaning of section 240, Pen. Code, defining an assault, and of section 220, under which the defendant was prosecuted.

It is urged that Ryan's conduct in going to sleep in the same bed with defendant, and remaining there until morning, is inconsistent with his story of the alleged assault, and so improbable that it is insufficient to justify any reasonable man, unmoved by passion or prejudice, in rendering a verdict of guilty. But the fact that Ryan was not so frightened as to prevent sleep is not conclusive evidence that the assault was not committed, nor, indeed, was it inconsistent with the fact of the assault. It was not essential to the offense charged that the assault should have put Ryan in fear. If A. should meet B. in a secluded place, and demand his money, and, the demand not being complied with, should assault him, the fact that B. stood his ground, and A. thereupon desisted, and the circumstance that B. was not in fact put in fear, would hardly be relied upon as evidence that A. did not make an assault with intent to rob. It may show that Ryan was neither refined nor sensitive, that his feelings were not greatly outraged, and, as no bodily injury was inflicted, it may sug

gest the possibility of some improper motive on his part for the prosecution; but all these questions were for the jury. There was legal evidence upon which the verdict of guilty could be based and sustained. To justify this court in interfering, we must be able to say that there was no evidence upon which the verdict could be properly based, or that it was of such a character as to justify us in saying that a reasonable mind, uninfluenced by passion or prejudice, could not reach the conclusion of guilt. The verdict in this case, by its recommendation "to the extreme mercy of the court," whatever may have induced it, clearly negatives the idea of passion or prejudice on the part of the jury. If we may speculate as to the reasons for this recommendation we might conclude that the jury felt they must, under the evidence, render a verdict of guilty; but as the force was slight, and not persistent, and Ryan not peculiarly sensitive, that a less aggravated case was not likely to occur; and that it should therefore receive the lightest sentence permitted by the law. We cannot say that the court abused its discretion in refusing a new trial, and the judgment and order appealed from should therefore be affirmed.

ALLIANCE TRUST CO., Limited, v.
O'BRIEN et al.1

(Supreme Court of Oregon. Jan. 11, 1898.) FRAUDULENT CONVEYANCES-BONA FIDE MORTGA GEE-NOTICE BY POSSESSION-ESTOPPEL 1. One who, for the purpose of delaying and hindering creditors, places the title to land in another, cannot invoke the doctrine that possession is notice of his rights to such property. as against a bona fide mortgagee.

2. The real owner of property placed the title in her sister, permitted her to hold herself out as the real owner, and to pay the taxes thereon, and exercised no rights of ownership except to live on the property. The sister mortgaged the property, and with a knowledge of this fact the real owner assigned the insurance policy on the house, so that the loss, if any, should be come payable to the mortgagee. Held, that by the surrender of the insurance policy, without objection or protest, she so far led the mortgagor to believe that the property in fact belonged to the sister that she could not charge him with notice arising from the fact that she was in possession of the property.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Bill by the Alliance Trust Company, Limited, against Emily H. O'Brien, John A. O'Brien, Annie Petrain, and Charles A. Petrain to foreclose. From a decree for plaintiff, defendants Annie Petrain and Charles A. Petrain appeal. Affirmed.

This is a suit against Emily H. O'Brien, John A. O'Brien, her husband, Annie Petrain, and

Rehearing pending.