counsel expected to prove, had stated that the defendant-assuming those facts to be capable of proof-was certainly insane, and must have been insane at the date of the homicide.

One of these alienists was Dr. I. E. Cohn, of the Napa Asylum, and the other was Dr. W. A. Jones, of Minneapolis, Minn. The only witnesses on the point of personal and family history whose attendance had not been secured were William and Earl Buck, brother and nephew of the defendant, for whom subpcenas had been issued, but who had not been found. On the other hand, the affidavit showed that the defendant was prepared with a very considerable amount of evidence of persons who had known the defendant and his family and of public records which showed that about three years prior to the homicide the defendant had been adjudged insane upon the report of a commission appointed in a proceeding instituted under the laws of this state. Counter affidavits were filed on the part of the people, but they are not included in the record or printed in the transcript. Counsel for appellant seems to consider that the absence of these counter affidavits gives him serious grounds of complaint, but we cannot see how he is injured by their omission, since, in their absence, we can only assume that the material averments of his affidavit were uncontradicted, or, as is more probable, account for their absence upon the supposition that they were deemed superfluous in view of the disclosures at the trial.

But for these disclosures it might be a serious question whether the denial of a continuance was not an error. It turned out, however, that both William and Earl Buck attended the trial and testified in favor of the defendant, and Dr. Cohn, of the Napa Asylum-one of the two alienists who had stated in reply to the hypothetical question that in his opinion the defendant was insane -also attended in obedience to a subpoena issued at the instance of the defendant, and upon the usual order of the court for the attendance of witnesses residing out of the county. He was in court on the day the motion for continuance was made, and was present throughout the trial. In the intervals of the trial he visited and examined the defendant in jail, with the result that he was not called as a witness by the defendant, but testified in rebuttal that he was sane at the time of the trial and at the date of the homicide. It is probable that the ruling on the motion for a postponement of the trial was made with a knowledge that Dr. Cohn and William and Earl Buck were or would be present in time to give their testimony, in which case it was clearly right. But, however this may be, it was clearly not injurious in any view in which it could be claimed to have been erroneous. It is true the deposition of Dr. Jones, of Minnesota,

was not obtained, and probably could not have been obtained for the trial with any amount of diligence, but it cannot be held an abuse of discretion or a denial of right to refuse to postpone a criminal trial in the courts of California until the depositions of nonresident alienists based upon hypothetical questions can be obtained in support of the plea or defense of insanity.

Nor did the court err in refusing to postpone the trial because of an allegation in the affidavit that local feeling was inflamed against the prisoner, and that eminent special counsel had been retained to assist the prosecution. The absence of any widespread feeling against the prisoner is shown by the fact that a jury was filled from the panel in attendance on the day the trial began, and a continuance would not have deprived the people of the aid of the special counsel, or freed the defendant of their opposition.

On the trial much evidence was introduced tending to prove that defendant was insane. There was evidence that his father's father had been insane; that his father had died a few years before of some disease affecting the brain; that his mother's mother had been an inmate of an insane asylum of which his mother had been a matron; that defendant himself had at one time been adjudged insane, but discharged after a few days' detention; that after his discharge he had taken up a wandering life, tramping from place to place and working desultorily in various menial employments. Opposed to this was the testimony of a number of experts, who, as the result of personal examinations and the evidence in the case, were all of the opinion that the defendant was perfectly conscious of what he was doing at the time of the homicide and fully aware of the nature and of the criminality of his acts. Upon this evidence it was a case for the jury to determine, under the instructions of the court, whether the defendant was insane or not.

It is contended that the court erred, not only in the charge given to the jury, but in refusing and modifying instructions requested by the defendant. The twelfth instruction so requested was to the effect that the testimony of nonexperts was 'recognized as proper in support of the defense of insanity, stating the reason of the rule. The concluding clause of the instruction was as follows: "You are not to be bound by the statement or testimony of such witnesses, neither are you justified in disregarding them. It is your duty to give them such weight as they are entitled to." The court in giving this instruction omitted the language quoted. No reason occurs to us why so mere a commonplace should not have been allowed to stand, but there seems as little reason why it should have been requested. It must be presumed that a jury always understands that it is their duty to give to any evidence submitted

to it the weight to which it seems entitled, and the refusal of the judge to make that comment on any particular item or line of evidence cannot be supposed to prejudice the party offering it. The thirteenth instruction requested by defendant was to the effect that in weighing and, considering expert testimony, it is the duty of the jury to exercise their own intelligent judgment, and to allow it such weight only as after careful scrutiny they may deem it deserving of. A final clause in this instruction was as follows: "And all opinion evidence should be received and carefully considered and scrutinized with great caution." In giving the instruction this clause was omitted. It would have been harmless if allowed, but its omission was equally harmless, since the part given covered the same proposition. The fourteenth instruction requested by defendant was refused outright. It was as follows: "The abstract opinion of any witness, medical or of any other profession, is not of any importance. It is a juror's duty to arrive at his conclusion upon his own judgment exercised in a reasonable way, after carefully weighing all of the evidence. No judicial tribunal would be justified in deciding for or against the legal responsibility of one charged with insanity upon the mere opinion of witnesses, however numerous or respectable." The refusal was proper upon the ground that there is no such rule of law. The case cited as authority sustaining the instruction (In re Redfield, 116 Cal. 655, 48 Pac. 794) is not in point.

It is contended that the defendant was prejudiced by that part of the charge of the court, where, in defining the character of insanity which the law regards as a valid defense in cases of homicide, and other crimes of violence, it is pointed out that "irresistible impulse" to do an act known by the perpetrator to be wrong does not relieve him of its legal consequences. It is said that no such defense was made or attempted-that he had relied alone upon "settled insanity"-and therefore that the injection of this "false issue" into the case was confusing, misleading, and prejudicial to the only defense which had been made either in the evidence or the argument. We do not think it an error for a court where the defense of insanity is interposed to a charge of murder to state the law of insanity fully and with all its special limitations and qualifications, and we cannot see how the defendant could have been prejudiced by what was said in regard to "irresistible impulse."

Misconduct of counsel for the prosecution is alleged, but the record does not sustain the allegation that the evidence was misstated by special counsel for the people, and, if it had been, that was a matter for correction at the time by an appeal to the court and to the recollection of the jurors. As to the perfervid language of the district attorney in characterizing the atrocity of the crime, that

was a matter of taste which we are not called upon to consider. When he went too far in the opinion of the trial judge, he was admonished and corrected by him.

The verdict of the jury was returned on the 21st of March, and the defendant arraigned for sentence on the 24th. Counsel says he requested further time to procure affidavits as to newly discovered evidence in support of that ground of his motion for a new trial, but it does not appear that he made any showing in support of this application, and we cannot see that the court abused its discretion in refusing to postpone the arraignment and in limiting counsel to one hour for the argument of the motion for a new trial.

We regret to be obliged to add that there are many passages in the brief of counsel for appellant reflecting upon the action of the trial judge, which appear to be without the slightest justification. To say that it was "a brutal abuse of discretion and an inhuman violation of his constitutional rights" to compel the defendant to go to trial in the face of the affidavit for continuance would have been grossly improper language to incorporate in a brief, even if the facts had justified the charge. The offense is aggravated in this case by the absence of any foundation for the charge. Other less flagrant instances of abuse of the privilege of counsel need not be specified. We may hope that there may be no recurrence of similar offenses.

The judgment and order of the superior court are affirmed.

We concur: HENSHAW, J.; ANGELLOTTI, J.; SHAW. J.; MCFARLAND, J.; LORIGAN, J.; SLOSS, J.

(6 Cal. App. 88)

JONES v. EVANS et al. (Civ. 328.) (Court of Appeal. First District, California. July 10, 1997. Rehearing Denied by Supreme Court Sept. 5, 1907.)

NOTES-ACTION-PLEADING—

1. BILLS AND CORPORATE EXISTENCE.

In an action on notes given by defendant to a company and indorsed to plaintiff, a perfect cause of action is shown without proof of the company's corporate. capacity.

2. CORPORATIONS NOTES - INDORSEMENT — AUTHORITY OF OFFICER.

In an action on notes indorsed to plaintiff by the payee corporation by its vice president, the authority of the vice president to make the indorsement was sufficiently shown where plaintiff indorsed the notes at the vice president's request, they were afterwards discounted, and the proceeds received by the corporation or paid out under specific directions in discharging its obligations, and where the corporation had delivered to plaintiff assets and securities under an agreement made on its behalf by the vice president to secure him from liability for indorsing, among others, the notes sued on.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 1737.1

3. PLEDGES-RIGHTS OF PLEDGEE-COLLATERAL SECURITY FIRST-NECESSITY FOR AP

PLYING..

Before suing the maker, an indorser of notes was not bound to apply collateral securities delivered to him subject to the claims of a creditor by the payee as security for the indorsement of notes including those sued on; a bill in equity having been filed against plaintiff by the creditor claiming the assets, and it appearing that no part of the money on hand could be applied to any particular note or claim until after the settlement of the litigation, and then only in the event of plaintiff's success.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Pledges, § 140.]

4. SAME

AGREEMENT-CONSTITUTION.

Under the express terms of Civ. Code, $8 2986, 2987, where a corporation, to secure plaintiff from liability on notes he indorsed and procured to be indorsed, transferred to him, and his indorsers, subject to the claims of another, the entire proceeds of certain territory in which it did business, the contract providing that, on failure to meet the notes, the assets would be collected, reduced to cash, and the proceeds applied to the payment of the notes, there was a pledge as collateral security for the notes indorsed and procured to be indorsed by plaintiff. 5. BILLS AND NOTES-ACTION BY INDORSERDEFENSE-WANT OF CONSIDERATION.

In an action on notes by an indorser, it was no defense that the maker was paid no consideration for the notes, there being no showing plaintiff knew that fact, since, in the absence of evidence to the contrary, the presump tion of law under the express terms of Civ. Code, § 3104, is that the notes were indorsed before maturity and for a valuable consideration, and the notes having been indorsed to plaintiff before maturity.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 693.]

Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.

Action on notes by S. W. Jones against J. W. Evans and others. From a judgment for plaintiff and an order denying a new trial, defendant Evans appeals. Affirmed.

H. A. Powell, Geo. R. Williams, and W. A. Dow, for appellant. Sullivan & Sullivan and Theo. J. Roche, for respondent.

KERRIGAN, J. This is an action on two promissory notes, made by J. W. Evans, payable to the order of the Domestic Sewing Machine Company. That company, before maturity, indorsed these notes, and delivered them to plaintiff. Thereafter, and before maturity, both notes were indorsed by plaintiff and discounted at certain banks. Defendants failed to meet these notes when they fell due. They were duly protested, and the plaintiff was compelled to pay the amounts due thereon. Defendants failed to reimburse plaintiff for such payment, and this action was brought. A trial was had only against the defendant Evans. Process was not served on the other defendant. The cause was tried by the court, sitting without a jury, and judgment was entered in favor of plaintiff. This appeal is from the judg ment entered against defendant Evans, and

from the order denying his motion for a new trial.

1. It is alleged in the complaint in the usual form that the Domestic Sewing Machine Company was a corporation. Appellant urges that there is no evidence that the company ever organized, or acted as a corporation. As we have seen, this is an action against the defendant Evans, the maker of the notes, and, so far as his liability on these notes is concerned, the corporate existence of the defendant Domestic Sewing Machine Company is absolutely immaterial. In other words, a perfect cause of action in favor of respondent as against the appellant Evans is set forth in the complaint without regard to the allegation concerning the corporate capacity of the defendant Domestic Sewing Machine Company. Crocker-Woolworth Bank v. Carle, 133 Cal. 409, 65 Pac. 951.

Nat.

2. The indorsement on each note reads: "Domestic Sewing Machine Company by David Blake, Vice President." Appellant asserts that there is no showing that David Blake had authority to make these indorsements. The evidence discloses that both notes were indorsed by respondent at the request of David Blake; that after being so indorsed they were discounted, and all moneys received by reason of such discounting were transmitted to the Domestic Sewing Machine Company and received by it, or else paid out under specific directions in discharging some of its obligations. Again, as part of his own case, appellant read in evidence a portion of the deposition of respondent, wherein he testified that he had an agreement with the Domestic Sewing Machine Company, in which it agreed to pledge with him certain assets of the company to secure him from liability for indorsing, among others, the notes involved herein. This agree ment was signed: "Domestic Sewing Machine Company by David Blake, Vice President." The evidence further shows that. pursuant to this agreement, the Domestic Sewing Machine Company did deliver to respondent some of its assets and securities. Whether it was a copartnership, corporation, or unincorporated association, it accepted and retained the benefits of the indorsement of its name upon the notes by David Blake, vice president, and upon the faith of these indorsements it procured the indorsement of the respondent. According to well-established principles of law, it could not accept the benefits derived from the indorsement of said notes by Blake, and at the same time repudiate his authority to make such indorsement.

3. Appellant contends that the respondent was bound to apply the collateral securities held by him to the payment of the notes before bringing suit thereon. It appears from the testimony that the respondent Jones indorsed and procured to be indorsed promissory notes for the Domestic Sewing Machine Company, to the extent of over $200,000,

other than those described in the complaint. In order to secure the respondent Jones from liability upon these notes, an agreement was entered into between Jones and the Domestic Sewing Machine Company, by virtue of which, subject to the claims of one Sutherland, it assigned and transferred to the respondent and his indorsers the entire proceeds of a certain territory in which it did business. The contract also provided that, in the event of the failure to meet these notes, the assets were to be collected, sold and reduced to cash, and the proceeds applied toward the payment of the notes. It appears from the evidence that respondent had paid a number of other promissory notes. indorsed by him, for the company after the notes had been protested, and that he had collected about $19,000 net under this agreement. The evidence also disclosed that a bill in equity had been filed by one Sutherland against the respondent, claiming said assets, and that no part of the balance of the moneys on hand could be applied to any particular note or claim until after the litigation now pending as to the ownership of the assets had been fully settled, and then only in the event that the respondent prevailed. This agreement constituted a pledge of the property described, as collateral security for the notes indorsed and which were procured to be indorsed by respondent. Civ. Code. §§ 2986, 2987; Sonoma Valley Bank v. Hill, 59 Cal. 109. In this last-mentioned case it is said: "It is well settled that, in the absence of a statute or stipulation to the contrary, the possession of the pledged property does not suspend the right of the pledgee to proceed personally against the pledgor for his debt, without selling the pledge, for the reason that the security is only collateral. It has been repeatedly so held" (citing a number of cases).

In Ehrlick v. Ewald, 66 Cal. 97, 4 Pac. 1062, the Supreme Court uses this language: "The court below found that defendant was indebted to plaintiff for money loaned. To secure the payment thereof, defendant had delivered to plaintiff certain personal property, which property is still held by plaintiff, who had taken no steps to subject the same to sale for the payment of the debt. The action has been brought to recover the amount due with interest. The defendant insists that according to section 726, Code Civ. Proc., the action cannot be maintained; that the plaintiff must first seek to foreclose his lien before he can have an independent action for money. This view was taken by the court below, in refusing judgment for plaintiff on the findings, and in rendering judgment for defendant." And, after quoting from vari ous sections of the Code, the court proceeds: "We find nothing which will prevent a pledgee from having his action to recover the debt, without first exhausting the subject of his pledge. The plaintiff was entitled to his judgment for the amount stated in the

findings, with interest." In Commercial & S. Bank v. Hornberger, 140 Cal. 16, 73 Pac. €25. the Supreme Court again stated: "The pledgee may recover the amount of his debt from the debtor by an independent suit without foreclosing the pledge." To the same effect is Farmers' & Merchants' Bank v. Copsey, 134 Cal. 287, 66 Pac. 324.

4. Appellant testified that he was paid no consideration for these notes, but there is no showing that respondent knew this. In the absence of evidence to the contrary, the presumption of law is that the notes were indorsed before maturity and for a valuable consideration. Section 3104. Civ. Code. Again, the uncontradicted evidence of respondent was that the notes had been indorsed to him before maturity. The action of the court in striking out this testimony of the appellant was correct, for it constituted no defense.

5. Appellant's motion for nonsuit was denied, and, in addition to this ruling, he complains about the admission of certain evidence. These matters, so far as they merit attention, have been fully discussed in what we have already said. and they need no further elaboration.

The judgment and order are affirmed. We concur: COOPER, P. J.; HALL, J.

(6 Cal. App. 77) MUSHET v. FOX. (Civ. 373.) (Court of Appeal. Second District, California. July 5, 1907. Rehearing Denied by Supreme Court Sept. 3, 1907.)

1. TRIAL-FINDINGS BY COURT-NECESSITY OF FINDING PLEA OF WANT OF CONSIDERATION.

The plea of want of consideration in an action on a note is an affirmative defense, on which the defendant is entitled to a finding if there is any evidence in support thereof. 2. APPEAL-PREJUDICE-OMISSION

ING.

OF FIND

The court's omission to make a finding on a plea of want of consideration in an action on a note was immaterial on appeal, where such failure would not affect the substantial rights of the appellant, under Code Civ. Proc. § 475, requiring the court on appeal to disregard any error not affecting substantial rights.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4234, 4239.] 3. SAME NECESSITY OF OBJECTIONS AT TRIAL. In the absence of particular objections, no error can be claimed on appeal to the admission of evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1141.]

4. EVIDENCE-WEIGHT AND SUFFICIENCY EVIDENCE IMPROPERLY ADMITTED. Defendant, having suffered attachment, solicited two other creditors to levy an attachment on his property for the purpose of counteracting the first, and, for this purpose, the creditors transferred their claims to R.. assistant secretary of a board of trade, who brought suit, aided by attachment thereon. Defendant thereafter requested plaintiff, who was secretary of the board of trade and who had received an assignment of the claims from his assistant to have the attachments released, but he refused unless defendant executed a note and chattel

Appeal from Superior Court. Los Angeles County; G. A. Gibbs, Judge.

Action by W. C. Mushet against E. R. Fox. From a judgment in favor of plaintiff. defendant appeals. Affirmed.

L. M. Fall, for appellant. Carroll Allen and W. T. Craig, for respondent.

ALLEN, P. J. Appeal by defendant from a judgment in favor of plaintiff. The action was upon a note secured by chattel mortgage executed by defendant to plaintiff. Copies of both note and mortgage were set out in the complaint. The sole issue tendered by the answer was a plea of want of consideration. The court, upon the trial, found all of the allegations of the complaint to be true, but made no finding as to the affirmative issue raised by the answer.

The record contains a bill of exceptions. settled and allowed by the trial court on October 13, 1906, being the day succeeding the trial, in which bill alone appears the specifications of error relied upon. Judgment, however, was not entered until October 24, 1906. A copy of the bill of exceptions was served upon plaintiff's counsel November 2, 1906, and on that day filed. The certificate of the judge is that the bill of exceptions had been "duly prepared and settled with due time and in the manner required by law." Assuming for the purposes of this decision, but without deciding. that a bill of exceptions specifying as error the insufficiency of the evidence to support a finding may be settled and allowed before such finding is actually made, and treating the bill of exceptions as a part of the record, we are satisfied that the judg ment should be affirmed.

That the plea of want of consideration is an affirmative defense is determined in Pastene v. Pardini, 135 Cal. 433, 67 Pac. 681. If there is any evidence offered in support of such affirmative defense, the defendant is entitled to a finding thereon; yet, if it appears from the record that "the failure to make such finding would not affect the substantial rights of the appellant. the judgment ought not to be reversed. Code Civ. Proc. § 475." Winslow v. Gohransen. 88 Cal. 452, 26 Pac. 504. In support of the issue of want of consideration, the appellant's evidence shows that he was indebted to two certain corporations in an aggregate amount of $642.10; that another creditor of appellant had levied an attachment upon his property, and he thereupon, for the purpose of counteracting this attachment, solicited the corporations to issue an attachment upon their

ance with such request, procured the Wholesalers Board of Trade, of which plaintiff was secretary, and one Rossiter, who was assistant secretary, to bring suit upon their claims, which suit was brought in the name of Rossiter and an attachment duly levied; that thereafter defendant, by giving bond, had the first attachment released, and requested plaintiff to release the second attachment, which he refused to do unless other security was given for the claim. Thereupon defendant executed the note and chattel mortgage to plaintiff for $747.11, and the attachment was accordingly released. It does not appear what costs or expenses were incurred by plaintiff in the attachment proceedings, or that the amount of the note was in excess of the original claim and such costs. Appellant testifies that, after the attachment was levied and before the release, he gave a check to one of the corporations for the amount of its claim, but this check was not, upon presentation, paid on account of "want of funds"; that thereafter defendant deposited in the bank upon which said check was drawn funds more than sufficient to cover such check, but the same was not thereafter presented nor paid; that, when he gave the check, the corporation executed a receipt to defendant for the amount of its original bill, and after the dishonor of the check refused to surrender the same until the receipt was returned. Defendant's claim of want of consideration is based upon the proposition that no evidence was offered tending to show that the claims of the corporations had been actually assigned to Rossiter before suit, or by Rossiter to plaintiff before the execution of the note and mortgage. The only competent evidence in relation to such assignment is that of Rossiter, who, testifying in relation to the facts existing at the date of the note, says: "In the meanwhile plaintiff caused said original indebtedness owing by defendant to said packing houses and transferred to witness to be transferred to plaintiff." Defendant objected to this evidence, but upon what grounds does not appear. In the absence of any proper objections, no error can be claimed in the admission of such statements, and they show sufficiently the assignment and transference of the claims to plaintiff. The statements or acts of the assignors subsequently made or performed could have no effect against plaintiff as tending to overcome his proof of transfer. Aside from this, the situation of the defendant after giving the note and mortgage was not unlike that of one executing an undertaking for the release of an attachment, in which latter case. in an action upon such undertaking, the court will not inquire into the sufficiency of the complaint, or admit evidence as to matters therein necessary for determination in the original action out of which the attachment issued. Bailey v. Etna Indemnity Co. (decided by this court June 18, 1907) 91 Pac.