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counsel expected to prove, had stated that was not obtained, and probably could not the defendant-assuming those facts to be have been obtained for the trial with any capable of proof-was certainly insane, and amount of diligence, but it cannot be held an must have been insane at the date of the abuse of discretion or a denial of right to rehomicide.

fuse to postpone a criminal trial in the courts One of these alienists was Dr. I. E. Cohn, | of California until the depositions of nonof the Napa Asylum, and the other was resident alienists based upon hypothetical Dr. W. A. Jones, of Minneapolis, Minn. questions can be obtained in support of the The only witnesses on the point of personal plea or defense of insanity. and family history whose attendance had not Nor did the court err in refusing to postbeen secured were William and Earl Buck, pone the trial because of an allegation in the brother and nephew of the defendant, for affidavit that local feeling was intlamed whom subpoenas had been issued, but who against the prisoner, and that eminent special had not been found. On the other hand, the counsel had been retained to assist the prosaffidavit showed that the defendant was ecution. The absence of any widespread prepared with a very considerable amount feeling against the prisoner is shown by the of evidence of persons who had known the fact that a jury was filled from the panel defendant and his family and of public rec in attendance on the day the trial began, and ords which showed that about three years a continuance would not have deprived the prior to the homicide the defendant had been people of the aid of the special counsel, or adjudged insane upon the report of a com freed the defendant of their opposition. mission appointed in a proceeding insti On the trial much evidence was introduced tuted under the laws of this state. Counter tending to prove that defendant was insane. affidavits were filed on the part of the people, There was evidence that his father's father but they are not included in the record or had been insane; that his father had died a printed in the transcript. Counsel for ap few years before of some disease affecting pellant seems to consider that the absence of the brain; that his mother's mother had been these counter affidavits gives him serious an inmate of an insane asylum of which bis grounds of complaint, but we cannot see mother had been a matron; that defendant how he is injured by their omission, since, / himself had at one time been adjudged inin their absence, we can only assume that sane, but discharged after a few days' dethe material averments of his affidavit were tention; that after his discharge he had takuncontradicted, or, as is more probable, ac en up a wandering life, tramping from place count for their absence upon the supposi to place and working desultorily in various tion that they were deemed superfluous in menial employments. Opposed to this was view of the disclosures at the trial.

the testimony of a number of experts, who, But for these disclosures it inight be a as the result of personal examinations and serious question whether the denial of a con the evidence in the case, were all of the tinuance was not an error. It turned out, opinion that the defendant was perfectly however, that both William and Earl Buck conscious of what he was doing at the time attended the trial and testified in favor of of the homicide and fully aware of the nathe defendant, and Dr. Cohn, of the Napa ture and of the criminality of his acts. UpAsylum--one of the two alienists who had on this evidence it was a case for the jury stated in reply to the hypothetical question to determine, under the instructions of the that in his opinion the defendant was insane court, whether the defendant was insane or -also attended in obedience to a subpoena is not. sued at the instance of the defendant, and It is contended that the court erred, not upon the usual order of the court for the at only in the charge given to the jury, but in tendance of witnesses residing out of the refusing and modifying instructions requested county. He was in court on the day the by the defendant. The twelfth instruction so motion for continuance was made, and was requested was to the effect that the testipresent throughout the trial. In the inter mony of nonexperts was 'recognized as propvals of the trial he visited and examined the er in support of the defense of insanity, statdefendant in jail, with the result that he ing the reason of the rule. The concluding was not called as a witness by the defend clause of the instruction was as follows: ant, but testified in rebuttal that he was “You are not to be bound by the statement or sane at the time of the trial and at the date testimony of such witnesses, neither are you of the homicide. It is probable that the rul justified in disregarding them. It is your ing on the motion for a postponement of the duty to give them such weight as they are trial was made with a knowledge that Dr. entitled to." The court in giving this inCohn and William and Earl Buck were or struction omitted the language quoted. No would be present in time to give their testi reason occurs to us why so mere a commonmony, in which case it was clearly right place should not have been allowed to stand, But, however this may be, it was clearly not but there seems as little reason why it should injurious in any view in which it could be have been requested. It must be presumed claimed to have been erroneous. It is true that a jury always understands that it is the deposition of Dr. Jones, of Minnesota, their duty to give to any evidence submitted

to it the weight to which it seems entitled, , was a matter of taste which we are not calland the refusal of the judge to make that ed upon to consider. When he went too far comment on any particular item or line of in the opinion of the trial judge, he was adevidence cannot be supposed to prejudice the monished and corrected by him. party offering it. The thirteenth instruction The verdict of the jury was returned on requested by defendant was to the effect that the 21st of March, and the defendant arin weighing and, considering expert testi- raigned for sentence on the 24th. Counsel mony, it is the duty of the jury to exercise says he requested further time to procure aftheir own intelligent judgment, and to allow fidavits as to newly discovered evidence in it such weight only as after careful scrutiny support of that ground of his motion for a they may deem it deserving of. A final new trial, but it does not appear that he made clause in this instruction was as follows: any showing in support of this application, “And all opinion evidence should be received and we cannot see that the court abused its and carefully considered and scrutinized with discretion in refusing to postpone the argreat caution.” In giving the instruction raignment and in limiting counsel to one this clause was omitted. It would have been hour for the argument of the motion for a harmless if allowed, but its omission was new trial. equally harmless, since the part given cov We regret to be obliged to add that there ered the same proposition. The fourteenth

are many passages in the brief of counsel instruction requested by defendant was re for appellant reflecting upon the action of fused outright. It was as follows: "The ab the trial judge, which appear to be without stract opinion of any witness, medical or of the slightest justification. To say that it any other profession, is not of any impor was "a brutal abuse of discretion and an tance. It is a juror's duty to arrive at his inhuman violation of his constitutional rights" conclusion upon his own judgment exercised to compel the defendant to go to trial in in a reasonable way, after carefully weighing the face of the affidavit for continuance all of the evidence. No judicial tribunal

would have been grossly improper language would be justified in deciding for or against to incorporate in a brief, eren if the facts the legal responsibility of one charged with

had justified the charge. The offense is aginsanity upon the mere opinion of witnesses,

gravated in this case by the absence of any however numerous or respectable." The re foundation for the charge. Other less flafusal was proper upon the ground that there grant instances of abuse of the privilege of is no such rule of law. The case cited as au

counsel need not be specified. We may hope thority sustaining the instruction (In re Red that there may be no recurrence of similar field, 116 Cal. 055, 48 Pac. 791) is not in point.

offenses. It is contended that the defendant was

The judgment and order of the superior prejudiced by that part of the charge of the

court are affirmed. court, where, in defining the character of insanity which the law regards as a valid de

We concur: HENSHAW, J.; ANGELLOT. fense in cases of homicide, and other crimes

TI, J.; SHAW, J.; McFARLAND, J.; LORIof violence, it is pointed out that "irresistible

GAN, J.; SLOSS, J. 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

(6 Cal. App. 88) relied alone upon "settled insanity"--and JONES V. EVANS et al. (Civ. 328.) therefore that the injection of this “false is (Court of Appeal. First District, California. sue” into the case was confusing, mislead July 10, 1917. Rehearing Denied by ing, and prejudicial to the only defense which

Supreme Court Sept. 5, 1907.) had been made either in the evidence or the

1. BILLS AND NOTES-ACTION-PLEADING

CORPORATE EXISTENCE. argument. We do not think it an error for

In an action on notes given by defendant a court where the defense of insanity is inter

to a company and indorsed to plaintiff, a perfect posed to a charge of murder to state the law cause of action is shown without proof of the of insanity fully and with all its special lim

company's corporate, capacity. itations and qualifications, and we cannot

2. CORPORATIONS – NOTES — INDORSEMENT –

AUTIIORITY OF OFFICER. sce how the defendant could have been preju In an action on notes indorsed to plaintiff diced by what was said in regard to "ir by the payee corporation by its vice president, resistible impulse."

the authority of the vice president to make the Misconduct of counsel for the prosecution

indorsement was sufficiently shown where plain

tiff indorsed the notes at the vice president's is alleged, but the record does not sustain request, they were afterwards discounted, and the allegation that the evidence was misstat the proceeds received by the corporation or paid ed by special counsel for the people, and, if

ont under specific directions in discharging its

obligations, and where the corporation had deit had been, that was a matter for correction

livered to plaintiff assets and securities under at the time by an appeal to the court and an agreement made on its behalf by the vice to the recollection of the jurors. As to the president to secure him from liability for inperfervid language of the district attorney in

dorsing, among others, the notes sued on.

[Ed. Note.-For cases in point, see Cent. Dig. characterizing the atrocity of the crime, that vol. 12, Corporations, 8 1737.]

3. PLEDGES-RIGHTS OF PLEDGEE-COLLATER

AL SECURITY FIRST - NECESSITY FOR APPLYING. :

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 bil 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 appiied 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, $$ 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 presumption 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.)

froin 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.

Company. Crocker-Woolworth Nat. Bank v. Carle, 133 Cal. 409, 65 Pac. 951.

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 Ma. chine 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 be fore bringing suit thereon. It appears from the testimony that the respondent Jones indorsed and procured to be indorsed promis. sory notes for the Domestic Sewing Machine Company, to the extent of over $200,000,

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.

II. 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

other than those described in the complaint findings, with interest." In Commercial & S. In order to secure the respondent Jones from Bank v. Hornberger, 140 Cal. 16, 73 Pac. liability upon these notes, an agreement was C25. the Supreme Court again stated: “Tlie entered into between Jones and the Domestic pledgee may recover the amount of his debt Sewing Machine Company, by virtue of which, from the debtor by an independent suit withsubject to the claims of one Sutherland, it out foreclosing the pledge." To the same assigned and transferred to the respondent effect is Farmers' & Merchants' Bank v. Copand his indorsers the entire proceeds of a sey, 134 Cal. 287, 06 l'ac. 321. certain territory in which it did business. 4. Appellant testified that he was paid no The contract also provided that, in the event consideration for these notes, but there is no of the failure to meet these notes, the assets showing that respondent knew this. In the were to be collected, sold and reduced to absence of evidence to the contrary, the precash, and the proceeds applied toward the sumption of law is that the notes were inpayment of the notes. It appears from the dorsed before maturity and for a valuable evidence that respondent had paid a number consideration. Section 3104. Civ. Code. Again, of other promissory notes. indorsed by him, the uncontradicted evidence of respondent for the company after the notes had been was that the notes had been indorsed to him protested, and that he had collected about before maturity. The action of the court in $19,000 net under this agreement. The evi- striking out this testimony of the appellant dence also disclosed that a bill in equity had was correct, for it constituted no defense. been filed by one Sutherland against the re 5. Appellant's motion for nonsuit was despondent, claiming said assets, and that no nied, and, in addition to this ruling, he compart of the balance of the moneys on hand plains about the admission of certain evicould be applied to any particular note or

dence. These matters, so far as they merit claim until after the litigation now pending attention, have been fully discussed in what as to the ownership of the assets had been we have already said, and they need no furfully settled, and then only in the event that ther elaboration. the respondent prevailed. This agreement The judgment and order are affirmed. constituted a pledge of the property described, as collateral security for the notes indors

We concur: COOPER, P. J.; HALL, J. ed and which were procured to be indorsed by respondent. Civ. Code. $8 2986, 2987; Sonoma Valley Bank v. Hill, 59 Cal. 109.

(6 Cal. App. 77) In this last-mentioned case it is said: “It is

MUSHET v. FOX. (Civ. 373.) well settled that, in the absence of a statute (Court of Appeal, Second District, California.

July 5, 1907. Rehearing Denied by or stipulation to the contrary, the possession

Supreme Court Sept. 3, 1907.) of the pledged property does not suspend the

1. TRIAL-FINDINGS BY COURT--NECESSITY OF right of the pledgee to proceed personally

FINDING-PLEA OF WANT OF CONSIDERAagainst the pledgor for his debt, without sell TION. ing the pledge, for the reason that the se

The plea of want of consideration in an ac

tion on a note is an affirmative defense, on curity is only collateral. It has been repeat

which the defendant is entitled to a finding if edly so held" (citing a number of cases).

there is any evidence in support thereof. In Ehrlick v. Ewald, 66 Cal. 97, 4 Pac. 2. APPEAL-PREJUDICE-OMISSION OF FIND1062, the Supreme Court uses this language:

ING.

The court's omission to make a finding on a "The court below found that defendant was

plea of want of consideration in an action on a indebted to plaintiff for money loaned. To note was immaterial on appeal, where such failsecure the payment thereof, defendant had ure would not affect the substantial rights of delivered to plaintiff certain personal prop

the appellant, under Code Civ. "Proc. $ 475, re

quiring the court on appeal to disregard any erty, which property is still held by plaintiff,

error not affecting substantial rights. who had taken no steps to subject the same [Ed. Note.-For cases in point, see Cent. Dig. to sale for the payment of the debt. The ac vol. 3, Appeal and Error, $$ 4234, 4239.) tion has been brought to recover the amount 3. SAME-NECESSITY OF OBJECTIONS AT TRIAL. due with interest. The defendant insists

In the absence of particular objections, no

error can be claimed on appeal to the admission that according to section 726, Code Civ. Proc.,

of evidence. the action cannot be maintained; that the

(Ed. Note.-For cases in point, see Cent. Dig. plaintiff must first seek to foreclose his lien vol. 2, Appeal and Error, $ 1141.) before he can have an independent action for 4. EVIDENCE — WEIGHT AND SUFFICIENCY money. This view was taken by the court

EVIDENCE IMPROPERLY ADMITTED.

Defendant, having suffered attachment, sobelow, in refusing judgment for plaintiff on

licited two other creditors to levy an attachthe findings, and in rendering judgment for ment on his property for the purpose of counterdefendant." And, after quoting from vari. acting the first, and, for this purpose, the credous sections of the Code, the court proceeds:

itors transferred their claims to R., assistant

secretary of a board of trade, who brought suit, "We find nothing which will prevent a pledg aided by attachment thereon. Defendant thereee from having his action to recover the debt. after requested plaintiff, who was secretary of without first exhausting the subject of his

the board of trade and who had received an pledge.

* *
* The plaintiff was entitled

assignment of the claims from his assistant to

have the attachments released, but he refused to bis judgment for the amount stated in the

unless defendant executed a note and chattel

mortgage to secure them, which was done. I claims; that these corporations, in compliHeld, that evidence of R. that prior to the ex ance with such request, procured the Wholeecution of suich note plaintiff caused the orig. inal indebtedness owing by defendant to the

salers' Board of Trade, of which plaintiff creditors, "which had been transferred to the was secretary, and one Rossiter, who was witness, to be transferred to plaintiff," in the assistant secretary, to bring suit upon their absence of an objection on proper ground. was sufficient to establish an assignment of the

claims, which suit was brought in the name claims to plaintiffs as the consideration for the

of Rossiter and an attachment duly levied ; note.

that thereafter defendant, by giving bond,

had the first attachment released, and reAppeal from Superior Court, Los Angeles quested plaintiff to release the second attachCounty; G. A. Gibbs, Judge.

ment, which he refused to do unless other seAction by W. C. Mushet against E. R. Fox.

curity was given for the claim. Thereupon From a judgment in favor of plaintiff. de

defendant executed the note and chattel fendant appeals. Affirmed.

mortgage to plaintiff for $747.11, and the atL. M. Fall, for appellant. Carroll Allen tachment was accordingly released. It does and W. T. Craig, for respondent.

not appear what costs or expenses were in

curred by plaintiff in the attachment proceedALLEN, P. J. Appeal by defendant from ings, or that the amount of the note was in a judgment in favor of plaintiff. The ac excess of the original claim and such costs. tion was upon a note secured by chattel mort Appellant testifies that, after the attachment gage executed by defendant to plaintiff. Cop was levied and before the release, he gave a ies of both note and mortgage were set out check to one of the corporations for the in the complaint. The sole issue tendered by amount of its claim, but this check was not, the answer was a plea of want of considera upon presentation, paid on acount of "want tion. The court, upon the trial, found all of of funds"; that thereafter defendant depositthe allegations of the complaint to be true, ed in the bank upon which said check was but made no finding as to the affirmative is drawn funds more than sufficient to cover sue raised by the answer.

such check, but the same was not thereafter The record contains a bill of exceptions, presented nor paid ; that, when he gave the settled and allowed by the trial court on check, the corporation executed a receipt to October 13, 1906, being the day succeeding the defendant for the amount of its original bill, trial, in which bill alone appears the specifi and after the dishonor of the check refusell cations of error relied upon. Judgment, how to surrender the same until the receipt was ever, was not entered until October 24, 1906. returned. Defendant's claim of want of conA copy of the bill of exceptions was served sideration is based upon the proposition that upon plaintiff's counsel November 2, 1906, no evidence was offered tending to show that and on that day filed. The certificate of the the claims of the corporations had been ietjudge is that the bill of exceptions had been ually assigned to Rossiter before suit, or by “duly prepared and settled with due time and Rossiter to plaintiff before the execution in the manier required by law." Assuming of the note and mortgage. The only compefor the purposes of this decision, but with tent evidence in relation to such assignment out deciding that a bill of exceptions specify is that of Rossiter, who, testifying in relating as error the insufficiency of the evidence tion to the facts existing at the date of the to support a finding may be settled and al note, says: "In the meanwhile plaintiff auslowed before such finding is actually maile, ed said original indebtedness owing by dleand treating the bill of exceptions as a part fendant to said packing houses and transferof the recor:1, we are satisfied that the judy. red to witness to be transferred to plaintiff." ment should be affirmeil.

Defendant objected to this evidence, but upon That the plea of want of consideration is what grounds does not appear. In the absan affirmative defense is determined in Pas sence of any proper objections, no error van tene v. Pardini, 135 Cal. 133, 67 Pac. 681. be claimeil in the admission of such stateIf there is any evidence offered in support of ments, and they show sufficiently the assignsuch affirmative defense, the defendant is ment and transference of the claims to plainentitled to a finding thereon; yet, if it ap tifl'. The statements or acts of the assignors pears from the record that “the failure to subsequently made or performed could have make such finding would not affect the sub no effect against plaintiff as tending to overstantial rights of the appellant, the judgment come his proof of transfer. Aside from this, ought not to be reversed. Code Civ. Proc. $ the situation of the defendant after viv475." Winslow v. Gohransen, 88 Cal. 1.32. 26 ing the note and mortgage was not unlike Pac. 504. In support of the issue of want that of one executing an undertaking for the of consideration, the appellant's evidence release of an attachment, in which latter case. shows that he was inilehted to two certain in an action upon such undertaking the court corporations in an aggregate amount of $612. will not inquire into the sufficiency of the 10; that another creditor of appellant had complaint, or admit evidence as to matters levieil an attachment upon his property, and therein necessary for determination in the he thereupon, for the purpose of counteract original action out of which the attachment ing this attachment, solicited the corpora issued. Bailey 1. Etna Indemnity to retions to issue an attachment upon their cided by this court June 18, 1907) 91 Pac.

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