made by the court can mean but one thing, -that defendants had made a profitable bargain, and had purchased hams to be delivered at Sioux City, Iowa, of a certain grade, for a total sum of $4,250, which hams, if delivered up to standard, free on board the cars at Sioux City, Iowa, would have been of the value of $6,210.76. There is no evidence whatsoever in the record to support these findings, and it is not asserted that there is any such. As it is beyond the province of this court to make findings, the cause must therefore be reversed for a new trial; and, since it must be so reversed, the regularity or irregularity in allowing the proposed amendments of defendants need not be considered, it having already been pointed out that they did not conform to any evidence introduced upon the trial. The order denying plaintiff's motion for a new trial is therefore reversed, and the cause remanded.

1. In an action for malicious prosecution, where plaintiff's cause of action arose from his arrest for breaking a gate and entering land belonging to defendant, but of which plaintiff claimed to be a tenant under the vendor of the land, a verdict for $800 is excessive.

2. A defendant in his answer alleged that he had been informed that on a certain day plaintiff had committed a certain offense, and that he advised his informant to state the facts to a certain justice, and afterwards a complaint sworn to by the informant was issued by the justice, charging plaintiff with the offense. Held, that it was error to instruct that he admitted by his answer that he had filed a complaint with a justice of the peace, charging the plaintiff with a criminal offense.

3. Where advice of counsel is alleged as a defence in an action for malicious prosecution, the question of the good faith of counsel in giving the advice is not an element in the defense.

Department 1. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Action by Lee Seabridge against Robert McAdam and T. H. Johnson. From a judgment against defendant McAdam, he appeals. Reversed.

A. R. Metcalfe and J. H. Merriam, for appellant. Edwin Baxter, for respondent.

GAROUTTE, J. This is an action to recover damages for a malicious prosecution. Defendant McAdam was the owner of a certain tract of inclosed land. Plaintiff, Seabridge, was a subtenant of defendant's vendor, and was cultivating a portion of this land to grain. Defendant, claiming the exclusive possession of the land, fastened the entrances thereto. Plaintiff, claiming the right to enter, broke the gates and entered. He was arrested for malicious mischief, up♫ Rehearing denied.

on complaint of Johnson, an employé of defendant, and a co-defendant in this action. Upon this charge of malicious mischief, Seabridge was acquitted, and thereupon brought this action, claiming that his arrest and prosecution were malicious. The verdict of the jury was against defendant McAdam, the appellant here, and we cannot say that the evidence was insufficient to support it. In view of all the facts, it would seem that the amount of damages awarded to plaintiff ($800) may be said to be somewhat excessive. It is very difficult to see wherein plaintiff has been damaged in any such amount. Even when exemplary damages are allowed, some limit within reason should be fixed; but, as the case must be returned for a new trial upon other grounds, we pass the matter without more consideration.

The court instructed the jury as follows: "This is a civil action for damages for an alleged malicious prosecution of the plaintiff by the defendants upon a criminal charge. Three prerequisites in such an action, which are alleged in the complaint, are admitted by the defendants' answer: (1) That the defendants did file a complaint with a justice of the peace charging the plaintiff with a criminal offense." As stated by the learned judge, this fact was a necessary prerequisite to plaintiff's recovery, and the instruction quoted conclusively took away from the jury any consideration of the evidence introduced at the trial bearing upon it. To be sure, if a material fact be admitted by the pleading the court has a right to instruct the jury to that effect, but it is only in a clear case that such instruction should be given. At the trial it in no way appeared that defendant McAdam conceded that he filed the complaint against plaintiff. If the evidence shows anything upon the point, it would appear to be a contested issue of fact; but we are not now dealing with the evidence, but with the law. Was the instruction justified by the allegation of McAdam's answer? Johnson, the co-defendant, filed a separate answer, and it may be said that he made such an admission; but we find no such admission in the answer of McAdam. There is nothing in the pleading looking towards an admission of the fact, unless it be found in the following allegations: "Said defendant, Robert McAdam, further answering plaintiff's said amended complaint, alleges that * he was credibly informed, to wit, by the defendant T. H. Johnson, that theretofore, to wit, on the 14th day of August, 1893, the plaintiff in this action did maliciously and willfully tear down a fence to make a passage through an inclosure belonging to said Robert McAdam; that thereupon he in good faith, and believing that the plaintiff had committed a public offense, advised the said T. H. Johnson to state the facts of the case to Samuel Owens, a justice of the peace of said county, residing in the said town of Whittier; that thereupon said

Johnson did appear before said justice and state the facts of the case; and that a complaint was made in accordance therewith, and sworn to by said Johnson, and was filed by said justice, charging the plaintiff with said offense, and a return was thereupon issued by said justice for the arrest of the plaintiff upon said charge." These allegations wholly fail to substantiate the statement of the court that defendant McAdam admitted by his answer that he filed the complaint against the plaintiff. The defendant had the right by his pleading to go before the jury claiming that under the evidence he did not file the complaint against this plaintiff. This right was a most substantial one, and was denied to him by the instruction of the court. The court also gave the jury the following instruction: "The court instructs that, in order to claim protection under advice of counsel, three requisites are necessary: (1) Such advice must be given after a full and fair statement to the attorney of all the facts in the case which the defendants knew, or had reasonable cause to believe; (2) such advice must be sought and given in good faith, and with an honest purpose." It is said in Sandell v. Sherman, 107 Cal. 397, 40 Pac. 493, "The question of the good faith of counsel in giving the advice is not an element in the problem." For the foregoing reasons the judgment and order are reversed, and the cause remanded for a new trial.

ty of Merced, plaintiffs printed the delinquent tax list for the fiscal year of 1894-95. They presented a claim for the work done to the board of supervisors of the county, and it was thereupon allowed and approved. This approved claim forms the basis of the application for the writ. Among the findings of fact made by the trial court there is the following: "That the board of supervisors of Merced county did not contract for the publication of the delinquent list of taxes for said county for the year 1895 with the lowest bidder, or at all, or after ten days' notice, or at all, that such contract would be let, and did not receive any sealed proposals from any newspaper for publishing said delinquent list, or at any time after or before the 28th day of March, 1895, or after or before section 3766 of the Political Code was amended, on March 28, 1895." St. 1895, p. 326. This finding of fact forms an absolute bar to plaintiff's recovery. In the case of Smeltzer v. Miller, 113 Cal. 163, 45 Pac. 264, the question here presented was before the court, and the theory upon which plaintiff attempts to recover in this action is there declared entirely unsound. Upon the authority of Smeltzer v. Miller, supra, the judgment and order are reversed, and the cause remanded.

(Sac. 264.)

HARRIS v. COOK, Auditor. (Supreme Court of California. Dec. 29, 1897.) COUNTIES-CONTRACTS - PUBLISHING DELINQUENT TAX LIST.

Pol. Code, § 3766, as amended March 28, 1895 (St. 1895, p. 326), provides that the board of supervisors "must" contract for publishing the delinquent list to the lowest bidder after 10 days' notice of the letting of the contract. Held, that on a failure of the supervisors to contract for publishing the list, the tax collector was not authorized to do so, and a contract for publishing the list, made with him, is void.

Department 1. Appeal from superior court, Merced county; J. K. Law, Judge.

Application by Charles Harris, surviving partner of Harris Bros., for a writ of mandate to W. H. Cook, auditor of Merced county. Judgment for plaintiff, and defendant appeals. Reversed.

F. H. Farrer, J. F. Peck, and V. C. Frost, for appellant. J. W. Knox, for respondent.

GAROUTTE, J. This appeal is prosecuted from a judgment directing that a peremptory writ of mandate issue to the auditor of Merced county, requiring him to draw a warrant for the sum of $91.50. At the request of the tax collector of the coun

(Supreme Court of California. Dec. 31, 1897.) COMMITMENT OF MINORS TO STATE SCHOOL-JURY TRIAL RIGHTS OF PARENT.

1. St. 1893, p. 332, § 13, relating to the Whittier State School, provides that, when any minor under 18 years shall be charged before any grand jury with the commission of any crime, that body may return to the court that the accused is a suitable person to be committed to the care and guardianship of such institution, whereupon the court may, if satisfied from the evidence that it ought to be made, order such commitment. Held, that a commitment made thereunder is void as a judgment of imprisonment, unless there be a jury trial.

2. And it is void as an award of guardianship also, where the parents are not made parties.

In bank. Appeal from superior court, Los Angeles county.

Proceeding upon presentment of the grand jury, for the commitment of Jonie Becknell, a minor, to the Whittier School. From an order of commitment, the father appeals, and petitions for a writ of habeas corpus. Granted.

F. H. Barber, for petitioner.

BEATTY, C. J. By section 13 of the act of March 23, 1893, relating to the Whittier State School (St. 1893, p. 332), section 17 of the original act was amended so as to read as follows: "If any accusation of the commission of any crime shall be made against any

minor, under the age of eighteen years, before any grand jury, and the charge appears to be supported by evidence sufficient to put the accused upon trial, the grand jury may, in their discretion, instead of finding an indictment against the accused, return to the superior court that it appears to them that the accused is a suitable person to be committed to the care and guardianship of said institution. The court may thereupon order such commitment, if satisfied from the evidence that such commitment ought to be made, which examination may be waived by the parent or guardian of such minor." Acting under this provision of the statute, the grand jury of Merced county made a presentment to the superior court as follows: "To the Judge of the Superior Court of the County of Merced, State of California: An accusation ⚫ against Jonie Becknell, a minor under the age of eighteen years, to wit, of the age of thirteen years, charging the said Jonie Becknell with the crime of burglary, committed in Merced county, state of California, on or about the first day of August, 1897, and the charge appearing to the grand jury to be supported by evidence sufficient to put the said Jonie Becknell upon his trial therefor, and it appearing to said grand jury that the accused is a suitable person to be committed to the care and guardianship of the reform school for juvenile offenders at Whittier, the grand jury therefore recommend that said Jonie Becknell be committed to the care and guardianship of said institution." Thereupon the court directed the said Jonie Becknell to be brought into court, and against his special protest and objection, on the ground that the court had no jurisdiction to act in the matter, proceeded to take testimony for the purpose of determining whether said Jonie Becknell was a suitable person to be committed to the Whittier State School. Upon the testimony so taken, and without any other proceeding or any trial by jury, the court did adjudge the said Jonie Becknell to be a suitable person to be committed to the Whittier State School until he should reach his majority, and made an order accordingly, under which he is now held in the custody of the superintendent of the school. The boy is under 14 years of age. His father and mother are residents of Merced county, and are able and willing to provide for his support and education.

Upon this state of facts appearing on the return to the writ of habeas corpus, issued upon petition of the boy's father, we are asked to discharge him from custody. The petition must be granted. As a judgment of imprisonment, the order of the superior court is void. The boy cannot be imprisoned as a criminal without a trial by jury. As an award of guardianship it is equally void, for his parents-his natural guardians-cannot be deprived of their right to his care, custody, society, and services except by a proceeding to which they are made parties, and

in which it is shown that they are unfit or unwilling or unable to perform their parental duties. All the cases cited by counsel are consistent with, and several of them sustain, these views. The minor is discharged from the custody of the superintendent, and restored to the custody of the petitioner.

We concur: VAN FLEET, J.; TEMPLE, J.; MCFARLAND, J.; HENSHAW, J.

(119 Cal. 447)

TYNAN v. KERNS et al. (S. F. 642.) (Supreme Court of California. Dec. 29, 1897.) EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE-LACHES.

In an action to annul certain proceedings in the administration of the estate of defendants' intestate, and to compel the administratrix to allow plaintiff's claim, after the settlement and distribution of such estate and the discharge of such administratrix, the facts stated in the complaint were insufficient, where it was not alleged that plaintiff was ignorant of the death of decedent, or of the various proceedings complained of, pending which she had an adequate remedy had she exercised ordinary dili

gence.

Commissioners' decision. Department 1. Appeal from superior court, Santa Cruz county; J. H. Logan, Judge.

Action by Margaret Tynan, administratrix, etc., against Mary Kerns and others. From a judgment for defendants on demurrer to complaint, plaintiff appeals. Affirmed.

Geo. P. Burke, for appellant. Chas. B. Younger, for respondents.

CHIPMAN, C. A demurrer to the complaint was sustained on the ground that it did not state facts sufficient to constitute a cause of action, and, plaintiff declining to amend, judgment passed for defendants, from which plaintiff appeals.

The

It appears from the complaint that the defendants' intestate died in October, 1892, and on November 28th his surviving widow. one of defendants, was appointed administratrix of his estate, and on December 13th she returned her inventory and appraisement. court made an order directing that publication of notice to creditors be made in the Santa Cruz Daily Sentinel, and it was so published from December 14 to January 17, 1893, and the next day the court made its decree that publication of notice had been duly made limiting the time within which to present claims to four months; that the inventory showed real estate of the value of $1,360, and personal property valued at $360; that the real estate was community property, and that decedent had duly declared and recorded a homestead upon the same in 1884 for the benefit of his wife (one of defendants) and his family; that said administratrix filed her petition to have the said real estate set apart to her as a homestead, of the hearing of which notice was posted by the clerk of the court, and the court, on December 27, 1892, granted

the petition, and set apart said real estate to her "in fee simple absolute"; that on July 7, 1893, the court made its decree distributing all the property of the estate, and on July 10, 1893, made its order discharging the administratrix from her trust; that on August 5, 1893, plaintiff presented her claim against said estate to said administratrix, who refused payment, whereupon, on August 21, 1893, plaintiff filed her complaint in this action. The action is brought to annul all the proceedings in the matter of said probate subsequent to the return of the inventory, and to compel the administratrix to allow plaintiff's claim. The relief is sought on the ground of the alleged fraud of the administratrix in conducting the administration of said estate, by which the court was misled to make the several orders and decrees already mentioned, to wit, the order directing notice to creditors, the decree establishing notice to creditors, and the order setting apart said real estate as a homestead. The specific fraudulent acts alleged may be briefly summarized as follows: That the administratrix falsely stated in her petition for letters the value of the real and personal estate to be $5,000, when she knew the value of the real estate was "$25,000, and of the personal property $2,000"; that she procured the appointment of appraisers, who would and did, in aid of her design to defraud plaintiff, return the value of the real and personal property at $5,000, the purpose being to mislead the court into making the notice to creditors four months instead of ten months; that she selected a newspaper in Santa Cruz in which to publish the notices required by law to be published for the purpose of concealing the fact of publication from plaintiff, who it is alleged did not take said paper, and that said paper was not one of general circulation in Watsonville, near which town plaintiff resided; that the court was misled in setting apart all the said real estate as a homestead through the said fraudulent undervaluation; that plaintiff had no actual or constructive notice of any of the said orders complained of, and had no actual or constructive notice that creditors were required to present their claims within four months, but she supposed that claims would not be barred for ten months after notice given to creditors, inasmuch as the said real estate was of the value of $25,000, and was so known to be by said executrix and by the public at large in the neighborhood; that the first actual notice plaintiff had of said orders was when she presented her claim, and learned that the estate had been finally settled. Appellant relies upon the decision of this court in Paterson v. Schmidt, 111 Cal. 457, 44 Pac. 161, as decisive of this case, where it was held that notice given by an administrator to creditors is not conclusive upon them. In that case there had been no decree entered establishing due publication of notice to creditors, and the estate had not passed to final distribution, as is the fact here. As to what

this court may hold when the question is presented under such circumstances, we need not speculate, inasmuch as, in the view we take of the case now before us, this question is not necessarily involved. If appellant has not, by her complaint, presented facts sufficient to entitle her to the relief prayed for, it becomes immaterial whether or not respondents gave due notice to creditors. We think they have failed, and that the demurrer to the complaint was properly sustained. We do not think appellant can be heard to say that she had no notice of the various proceedings of which she complains. It is not alleged that she was ignorant of the death of decedent, nor that she was ignorant of respondent's appointment as administratrix, nor of the inventory filed by her. Appellant is therefore charged with knowledge, not only of the appointment. but of the petition upon which it was made, and of the inventory. It is alleged that in this petition for letters respondents fraudulently understated the value of the property, as was also done in the inventory. Knowledge of the petition or the inventory put appellant in possession of the one fact around which, as it seems, all the alleged fraud revolves, to wit, that the property, real and personal, was claimed to be of no greater value than $5,000, when in fact it was worth $25,000. It is alleged in the complaint that notice to creditors was published in the Santa Cruz Daily Sentinel from December 14, 1892, to January 17, 1893, and, as respondents had a right to so publish it (Code Civ. Proc. § 1490), appellant is charged with constructive knowledge thereof. The same is true of the notice of hearing petition to set apart the homestead, the petition for distribution, and its hearing and other proceedings, all of which appear to have been regularly taken. At any one stage of the proceedings, or at any time from the filing of the petition for letters to the final discharge of the administratrix, it was within the power of appellant to obtain relief if a fraud was being perpetrated. Having knowledge that letters had issued to respondent administratrix upon a petition in which the entire property was valued at $5,000, plaintiff was thus warned that the notice to creditors might, under the law (Code Civ. Proc. § 1491), require creditors to file their claims within four months from the first publication. There was no duty put upon the administratrix to give more than the statutory time, but there was a duty put upon appellant to take notice of the time. Plaintiff's allegation that she had no constructive notice is not an allegation that she had no notice. Constructive notice is such notice as is imputed by law (Civ. Code, § 18), as to the effect of which the court can judge, notwithstanding such notice is denied. We think that the actual notice which appellant had of the death of decedent and the issuing of letters to respondent administratrix and the inventory carried with it notice of circumstances sufficient to put appellant upon inquiry of the particular fact of which she complains, and she

thus had "constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, she might have learned such fact." Id. 19. At all the various stages of the proceedings, at least until the final distribution of the estate, appellant had an adequate remedy had she exercised ordinary prudence and diligence in the protection of her rights. Equity will not relieve against culpable negligence or inexcusable laches. Ignorance of the alleged fraud will not excuse appellant's laches, especially as her ignorance may be directly traced to her. Hecht v. Slaney, 72 Cal. 363, 14 Pac. 88. With the actual and constructive knowledge already pointed out, and with full opportunity for adequate redress, appellant should not be allowed to wait until after final distribution of the estate and the discharge of the administratrix, and then to seek relief from consequences the result of her own inexcusable neglect, and which, by the exercise of ordinary prudence, she could have averted. It was said by Mr. Justice Harrison in Shain v. Sresovich, 104 Cal. 402, 38 Pac. 51: "The rule is well established that the means of knowledge is equivalent to knowledge, and that a party who has the opportunity of knowing the facts constituting the fraud of which he complains cannot be supine and inactive, and afterwards allege a want of knowledge that arose by reason of his own laches or negligence." The judgment should be affirmed.

We concur: SEARLS, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(119 Cal. 492)

STERRETT v. BARKER. (S. F. 861.)1 (Supreme Court of California. Jan. 3, 1898.) ACTION AGAINST ADMINISTRATOR-PARTIES-CONVERSION BY ADMINISTRATOR-LIABILITY OF ESTATE-CONTRACTS.

1. An action against an estate may be brought against the administrator in his representative capacity, without joining the beneficiaries of the estate.

2. An estate is not liable for a tort committed by an executrix.

3. An estate is not liable in damages for breach of contract entered into by an executrix.

4. An allegation in a complaint that, between certain dates, an executrix and the estate of the testator, became indebted to plaintiff for "money received, laid out, and expended for the benefit of said estate," shows no liability on the part of the estate, since an executor cannot, unless expressly authorized by the will or statute, create an obligation that will give a right of action against the estate.

5. A complaint alleging a cause of action against an estate cannot be amended so as to constitute an action against the executor individually.

Department 2. Appeal from superior court, Mendocino county; R. McGarvey, Judge.

Action by Thomas C. Sterrett against J. 1 Rehearing denied.

H. Barker, administrator, for damages. From an order overruling a demurrer to the complaint, and from a judgment for plaintiff, defendant appeals. Reversed.

Seawell & Pemberton, for appellant. Crandall & Bull, for respondent.

TEMPLE, J. The questions involved in this appeal arise upon demurrer to the complaint and upon the contention that the judgment is not warranted by the findings. I think all these points are well taken. The complaint contains two counts. In the first, after stating the death of the testator, the probate of the will, and appointment and qualification of the executrix, and that all the property of the estate was given to her in trust, with power to sell without obtaining an order authorizing her so to do, it is averred that she, for a good and valid consideration to her in hand paid by plaintiff, sold and agreed to deliver to plaintiff 500 of the best sheep of a band of 800 then in her possession as such executrix, and that shortly thereafter "plaintiff leased and let said five hundred sheep to said executrix, upon the following terms: The said executrix agreed to take, care for, and keep said sheep so sold to said plaintiff as aforesaid, and, when said plaintiff should call for the same, agreed to surrender and deliver over to said plaintiff said five hundred head of sheep, together with one-half the increase thereof and one-half the wool produced by said sheep." It is shown by the allegations that subsequently the executrix resigned, and defendant was appointed administrator with the will annexed about April 1, 1896, and immediately took possession of the assets of the estate and of the sheep, including the number purchased by plaintiff. It is then averred that plaintiff demanded from defendant the sheep, the increase, and wool, but that defendant refused to deliver the same; that the sheep were worth $3.50 each, the lambs $1 each, and that the sheep had produced $300 worth of wool and 300 lambs, the full value being $1,900; and that plaintiff's damage by the refusal of defendant to deliver the sheep and carry out the agreement concerning the sale and delivery of the sheep, and the increase thereof and the wool therefrom, is the sum of $2,050.

An administrator, like a trustee of an express trust, can sue or be sued without joining his beneficiaries. The only way in which an action can be brought against an estate is to sue the administrator or executor in his representative capacity. The rule is that he cannot be sued in the same action de bonis propriis and de bonis testatoris or intestatoris. It is agreed here that the action is against the estate. The pleader seems purposely to have left it doubtful whether he is suing for a conversion or for damages for a breach of a contract entered into by the executrix. In neither view,