tachment, provided, of course, he can and does specify in his affidavit the amounts of the indebtedness and some statutory ground for attachment" There the affidavit alleged the exact amount of indebtedness, which was on an unsecured claim. Here the appellant by foreclosure is primarily subjecting the mortgaged property to the payment of secured notes. It claims no remedy under the writ of attachment until it shall first exhaust the property covered by its mortgage. It does contend, however, that by reason of the inadequate value of the mortgaged property it will be entitled to a deficiency judgment for at least $500, and that it is now entitled to a writ of attachment in advance of such judgment to secure the same. It cannot know that the contingency of a deficiency judgment will ever arise; for, while it may be unwilling to bid the full amount of its claim at foreclosure sale, some other person may do so.

Although appellant has by contract extended credit to respondents on the notes and mortgage, it is now pursuing two remedies at one and the same time-one by foreclosure on the mortgaged property, and the other by attachment of additional property to secure a possible deficiency judgment. How can it, in advance of such deficiency judgment, which it may never obtain, comply with section 5351, Ballinger's Ann. Codes & St., which requires that the affidavit for attachment shall specify the amount of indebtedness. While it is true that, strictly speaking, an attachment is not a separate action, but an ancillary proceeding, it would, if resorted to before judgment, be an additional remedy not contemplated in foreclosure proceedings under our statutes. The evident spirit and intent of section 5893 was to prevent plaintiffs from harassing defendants in foreclosure actions, with ancillary proceedings prosecuted before judgment, for the purpose of seeking additional and concurrent remedies other than those authorized by statute or arising in the usual course of procedure. It was to prohibit a mortgagee securing by writ of attachment or otherwise an additional remedy in anticipation of a deficiency judgment, while looking to the mortgage security, and before exhausting the same by foreclosure and sale. In Rohrer v. Snyder, 29 Wash. 199, 69 Pac. 748, it was contended that a mortgagee could not by attachment pursue an independent remedy for the collection of the mortgage debt while foreclosing. The validity of the attachment was not raised in the original foreclosure proceeding in which the writ had issued, but was raised in the collateral action, being the one then on appeal. In passing upon the appellant's contention we said: "The second [contention] is based upon section 5893 of the Code (Ballinger's Ann. Codes & St) It is there provided that a mortgagee shall not prosecute any other action for the same matter while he is foreclosing his

mortgage or prosecuting a judgment of foreclosure.' Doubtless this provision of the statute would have furnished a sufficient ground for dissolving the attachment, had it been urged in the foreclosure action; and perhaps it might have furnished a ground for reversing the foreclosure judgment, had an appeal therefrom been taken. But such proceedings were voidable, not void, and to attack them in this way is to attack the judgment collaterally, where error, merely, cannot avail." Here the respondent moved the trial court to dissolve the attachment on the ground that it was issued while the appellant was proceeding with the foreclosure of its mortgage. In view of the inability of the appellant to anticipate the exact amount of any deficiency judgment to which it may or may not be hereafter entitled, or to state the same in its affidavit for attachment, and in view of our construction of section 5893, we hold that the trial judge rightfully sustained the motion to dissolve. The judgment is affirmed.

HADLEY, C. J., and RUDKIN and MOUNT, JJ, concur.

(151 Cal. 451) LAMB v. WEBB, Atty. Gen., et al. (L. A 1,864.) (Supreme Court of California. July 29, 1907.) In Bank. On rehearing. Denied. For majority opinion, see 91 Pac. 102. PER CURIAM. Rehearing denied.

BEATTY, C. J. I dissent from the order denying a rehearing of this cause, for the reason that the questions which the department has deemed it unnecessary to decide are the only questions presented by the record, while the ground upon which the decision is rested -the assumed exercise by the Attorney General of his discretion in deciding a question of fact is shown by the record to have no existence. All the allegations of the petition for the writ of mandate are admitted to be true. They show, among other things, that there are certain standing rules of the Attorney General's office governing applications for leave to sue in the name of the people. and that this petitioner, in presenting his application for leave to sue, complied in every particular with the rules. One of their requirements is that the relator must produce with his application the sworn complaint which he proposes to file, and they require nothing more for the purpose of satisfying the Attorney General that there is a meritorious cause of action. In this instance a sworn complaint was presented with the application for leave to sue. If the Attorney General was not satisfied of the good faith of the petitioner, or of the truth of the matters alleged on his information and beliefmatters which in cases of this kind can rarely be within the personal knowledge of the

relator-it would seem that he should have given him an opportunity of supporting his petition by corroborative affidavits, and no doubt he would have done so if he had deemed it material. But he did not consider this matter at all. He did nothing in the exercise of that discretion which the court assumes that he exercised in denying the application, and this is affirmatively shown by the record. The petition sets forth a copy of the written opinion of the Attorney General, giving his reasons, and his only reasons, for denying the application. In that opinion he assumes the truth of every fact alleged in petitioner's complaint and refuses leave to sue upon the ground, first, that the complaint does not state a cause of action, and, second, if there ever was a cause of action the petitioner ought not to be allowed to maintain it after having been a candidate at the special election. Whether these were good reasons for refusing leave to sue, and whether in any case the Attorney General may be compelled by mandamus to grant leave to sue in the name of the state, were the questions really involved in the appeal; but they are not decided, because it is assumed that the Attorney General was not satisfied of the existence of facts which he has made the basis of his written decision, and its sole basis.

(151 Cal. 778)

CORY V. SANTA YNEZ LAND & IMP. CO. et al. (L. A. 1.898.)

(Supreme Court of California. Aug. 23. 1907.) 1. MORTGAGES MORTGAGEE IN POSSESSION.

Where a mortgagor places the mortgagee in possession of mortgaged premises as additional security, the mortgagee thereby acquires the right to retain possession as long as the secured debt is unpaid, though foreclosure be barred by limitations.

2. SAME EVIDENCE.

Evidence in trespass held to show that defendant, the mortgagee of the premises, was in possession by the tacit, if not express, agreement of the mortgagor, for the purpose of additional security.

3. SAME-FORFEITING RIGHT-INITIATING ADVERSE CLAIM.

A mortgagee in possession may, without forfeiting his right of possession, initiate an adverse claim, which will ripen into a prescriptive title, in default of redemption.

4. SAME RIGHT OF MORTGAGOR TO MAINTAIN TRESPASS-REGAINING POSSESSION.

The right to maintain trespass against the mortgagee in rightful possession was not gained by the mortgagor entering the inclosure of the mortgagee, which included other lands in addition to those mortgaged, pitching a tent on the mortgaged land, and marking the corners of it, and commencing to set fence posts, he then being notified by the mortgagee that he was trespassing, and warned to desist, and, disregarding this, being forcibly removed with his belongings 20 days after his entry.

5. SAME EVIDENCE OF MORTGAGEE'S POSSESSION.

The inclosure by a mortgagee of the mortgaged land, with other lands belonging to the mortgagee, does not cease to be vidence of possession of the mortgaged land by the mortgagee

on his selling and giving possession to the vendee of a small part of the other land within the inclosure..

In Bank. Appeal from Superior Court, Santa Barbara County; J. W. Taggart, Judge.

Action by Nathan T. Cory against the Santa Ynez Land & Improvement Company and another. From a judgment for plaintiff. and from an order denying a new trial, defendant company appeals. Reversed.

C. P. Robinson and W. S. Day. for appellant. Wm G. Griffith, for respondent.

BEATTY, C. J. This is an action of trespass, in which the plaintiff recovered a judg ment for $368.50 and costs. The corporation defendant appealed to the District Court of Appeal from the judgment, and from an order denying a new trial. The justices of that court having been unable to agree as to the proper disposition of the appear, the cause was transferred to this court for hearing and decision.

It appears from the pleadings and the uncontradicted evidence in the record that, prior to the 28th of January, 1888, the appellant had subdivided a large tract of land in Santa Barbara county, and that on that date it conveyed to J S. Shoemaker, then a resident of Reno, Nev., a subdivision known as lot No. 13. containing 40 acres. The agreed price of the lot was $3,000, of which $1,000 were paid at the date of the conveyance. For the balance Shoemaker executed two promissory notes for $1.000 each, payable respectively January 20, 1900, and January 20, 1901, and secured by mortgage of the land. Shoemaker leased the land to tenants who occupied it until the year 1892. In the meantime, he had paid no part of the principal or interest of the two purchase-money notes, and in May, 1893, they had been placed in the hands of defendant Robinson for foreclosure. He. as agent and attorney for the appellant, agreed with Shoemaker at that time to cancel the first note and to remit the accrued interest on both notes amounting to $480, upon the agreement of the latter to pay the second note in the course of eight or ten months. This agreement was ratified by the corporation and the first note canceled. Robinson testifies that it was at the same time agreed by Shoemaker that appellant should have and maintain possession of the mortgaged premises until the remaining note was paid. Shoemaker denies that he made any such agreement, but the undisputed fact is that the corporation, through its agents, took possession of the lot about that time, and for fully 10 years kept the undisputed possession through tenants rendering rent to it. It is also an undisputed fact that the appellant permitted the second note to become barred by the statute of limitations on January 20, 1895, without any attempt to foreclose, and that afterwards, on Febru

ary 27, 1895, Shoemaker gave a new mortgage to secure a new note for $1,050, the amount of the second note and accrued interest. At the date of this new note and mortgage, the appellant was in the peaceable and undisputed possession of the land. No part of the principal of this renewal note was ever paid, and only part of the interest. In August, 1899, the right to foreclose was barred. But the corporation had been in possession all the time by its tenants and in receipt of the rents, and as its mortgage interest exceeded the assessed value of the land it paid all the taxes. Matters remained in this posture until 1901, when the appellant directed the assessor to omit any further mention of the mortgage, and to assess the land to it as a part of the larger tract of which it was a subdivision. In 1902 Shoemaker had the land assessed in his name, but down to the trial of this action in 1905 the appellant had paid all the taxes. In view of these facts it is difficult to believe that Shoemaker did not expressly agree, as testified by Robinson, that appellant should take and hold possession of the land, and it cannot be doubted that there was at least a tacit agreement to that effect. If not, why did Shoemaker, for a period of 10 years, acquiesce in such possession, actual, open and unequivocal? Men in their senses do not allow their land to be unlawfully occupied by other persons for so long a period without some sort of protest, and it must be concluded on the evidence that in October, 1903, the appellant was a mortgagee in lawful possession of the mortgaged premises, unless, as seems to be contended. its direction to the assessor in 1901, to omit any mention of the mortgage in assessing the land to it, deprives it of that status. When the respondent, as agent of Shoemaker, went upon the land for the purpose of taking and holding possession, October 20, 1903, the larger tract, 435 acres. of which lot 13 was a part, was completely inclosed by a fence sufficient to turn stock, and had been cultivated that season by tenants of the appellant. The crops, however, had been harvested, and it was being used only for the pasturage of stock. All the land within the large inclosure, except lot 13 and a similar subdivision which had been sold to a third party, belonged to appellant. Respondent under these circumstances entered the large inclosure with a camping outfit and a kit of carpenter's tools. He pitched his tent on lot 13, and proceeded to cut from trees growing on the premises posts for a fence. He had marked the corners of the lot, and was engaged in setting the fence posts. when, about a week after his entry, he was notified by agents of the appellant that he was trespassing and warn. ed to desist. He disregarded this and other warnings, and on the 10th of November was, by order of the appellant, forcibly removed from the land with an his belongings. These

are the salient facts of the case, and it minor circumstances do not alter their complexion. The motion of appellant for a new trial was based upon the grounds that the verdict was not sustained by the evidence and that the court had erred in its instructions to the jury As to the principal question of law arising upon the facts above stated there is no controversy It seems to be conceded that if a mortgagor places his mortgagee in possession of the mortgaged premises as additional security. the mortgagee thereby acquires the right to retain possession as long as the indebtedness so secured remains unpaid a right additional to, and independent of, his right to foreciose, and which is not extinguished or affected by the fact that an action to foreclose may be barred by the statute of limitations. Spect v. Spect, 88 Cal. 440, 26 Pac. 203, 13 L. R. A. 137, 22 Am. St. Rep. 314; Zellerbach v. Allenberg, 99 Cal. 69, 33 Pac. 786; Boyce v. Fisk, 110 Ca!. 113, 42 Pac. 473.

We think it clear, as above stated, that appellant was in possession of the mortgaged premises by Shoemaker's tacit, if not by his express, agreement, and for the purpose of additional security. Indeed, we think the evidence of an express agreement to that effect is free from any substantial conflict. There are many cases in which actions speak louder than words, and here is presented a series of acts of the parties of a highly significant character, every one of which consists with the testimony of Robinson and conflicts with the testimony of Shoemaker. It was a most reasonable and moderate condition of remitting one third of the purchase price of the land and all accrued interest, and extending the time of payment of the other third, that the appellant should have the possession of the land as further security, and it was a condition which, while beneficial to the appellant, so far from imposing any hardship upon Shoemaker, entirely comported with his interest and convenience. The omission of appellant to foreclose, not once only, but twice in succession, until the statute had barred that remedy is strong evidence that its officers, including Robinson, considered that they had other sufficient security, and Shoemaker's acquiescence for a period of 10 years in the possession of the appellant is to my mind conclusive that he knew it to be a rightful possession.

But it is contended that the appellant by causing the land to be assessed to it independent of the mortgage, thereby initiating an adverse claim which would ripen into a prescriptive title at the end of five years, forfeited its right of possession as mortgagee, and restored to Shoemaker the right to recov er the possession without paying his debt. If this is true it places a mortgagee in possession after the action to foreclose is barred in this position While he can keep the land forever if he makes no other claim to it than that of mortgagee, he can never sell it be

cause he can never make an indefeasible title, and he can never put improvements on it which will make it profitable to the mortgagor to redeem. The land is out of the market for all time, and forever-condemned to lie idle and unimproved. Such a result is opposed to public policy and to the policy of express law. We think it much more reasonable to hold that the mortgagee in possession has, as he ought to have, some means of quieting his title to the mortgaged premises, and, since he can no longer foreclose, that lie should be allowed to set in motion the time which will bar the right of the mortgagor to redeem, by plainly manifesting bis intention to claim the land as his own, so that at the end of five years, in default of redemption, he will be invested with a prescriptive title.

If this view is correct, the appellant was in the peaceable and rightful possession of lot 13 on the 20th of October, 1903, when respondent made his attempt to take possession. It is extremely doubtful whether the respondent ever had anything more than a mere scrambling possession of any part of the premises. He had gone inside of appellant's inclosure upon land every foot of which, except 40 acres belonging to a third party, was in the exclusive possession of the appellant, and was attempting to inclose the 40 acres composing lot 13. He had pitched a tent. marked the corners of the lot, and set some posts on one side when, on the 10th of November, he was dispossessed. By these wrongful acts he had gained at most a right to recover in an action of forcible entry. He was himself a trespasser, and by virtue of his 20 days' occupancy had gained no right except that which was secured by a statute whose principal object is to prevent breaches of the peace by punishing the aggressor. He could perhaps have recovered in forcible entry, but he cannot recover damages in trespass against the party rightfully entitled to the possession. Burnham v. Stone, 101 Cal. 164, 172, 35 Pac. 627.

It is unnecessary to consider the objection (not raised by respondent, but suggested in one of the opinions transmitted from the district court of appeal) that the errors specified in the instructions of the court cannot be considered because it is not made to appear that they were excepted to before the jury retired. I think it does sufficiently appear that exceptions were taken in time; but, assuming they were not, the instructions appear in the record and serve to explain the erroneous verdict of the jury. They imply that the complete inclosure of the larger tract of which lot 13 was a portion was not evidence of possession of that lot by appellant if there was other land (referring to the 40-acre lot belonging to a third party above mentioned) within the inclosure which appellant did not claim. This instruction probably ac

counts for the disregard by the jury of the overwhelming evidence of appellant s rightful possession at the date of respondent's wrongful entry. The facts of this case are widely at variance with those of Walsh v. Hill, 41 Cal. 571, upon which the instruction referred to seems to be based. The appellant having a large tract of land inclosed conveyed 40 acres within the tract and put its vendee in possession. This did not put an end to appellant's possession of the residue. It only entitled the vendee to a right of way across the residue. There should have been a new trial granted on the evidence.

The judgment and order of the superior court are reversed.

We concur: MCFARLAND, J.; HENSHAW, J.; LORIGAN, J.

SHAW, J. I concur in the judgment and in all of the opinion of the Chief Justice, with two exceptions.

The opinion appears to suggest that there was no substantial conflict in the evidence in regard to the fact of there having been an agreement between Shoemaker and Robinson, as agent of the Santa Ynez Land & Improvement Company, to the effect that that company should, as mortgagee, take and retain possession of the mortgaged land until the mortgage debt was paid, and in regard to there having been any express consent thereto by Mr. Shoemaker. I think there is a substantial conflict on this subject, but Mr. Shoemaker does not dispute the fact that the company was in the exclusive, actual, and peaceful possession of the land continuously, with his knowledge, receiving to its own use the rents and profits thereof, from 1893 to 1903, nor the fact that during that period he made no objection thereto and demanded no accounting, that, in short, he acquiesced in its possession as mortgagee. This being the case, the question whether or not there was an express agreement or a formal consent is immaterial. The company must be deemed to be lawfully in possession as mortgagee by implied agreement and by tacit consent. The fact of such implied agreement arises from the circumstances stated, and neither the circumstances nor the implied agreement arising therefrom is denied. The case comes within the rule laid down in Burns v. Hiatt, 149 Cal. 623, 87 Pac. 196, and the company, having lawfully acquired possession, has the same rights as mortgagee in possession as if its possession was under the sanction of an express agreement.

In the statement in the opinion suggesting that the record sufficiently shows the taking of an exception to the instructions, I understand the Chief Justice to be stating his personal opinion, and not that of the court.

We concur: SLOSS. J: ANGELLOTTI, J

(151 Cal. 785) FOGARTY v. SOUTHERN PAC. CO. et al. (L. A. 1,712.)

(Supreme Court of California. Aug. 23, 1907.) 1. MASTER AND SERVANT-INJURY TO SERVANT -PROXIMATE CAUSE-QUESTION FOR JURY.

In an action against a railway company for injuries to a car repairer while working under a car in consequence of the car being struck by another car placed on the track, held, that the questions whether the proximate cause of the accident was the negligence of the company in failing to inspect the latter car and discover defects in the brake thereof, or whether the accident was due to the negligence of a fellow servant, or disobedience by him of a rule of the company, or in the examination of the brakes thereof, were for the jury.

2. NEGLIGENCE-QUESTION FOR JURY-PROXIMATE CAUSE.

Where the evidence, in an action for personal injuries, does not, as a matter of law, show what the proximate cause of the accident was, the question is for the jury.

3. MASTER AND SERVANT-INJURY TO SERVANT -RULES OF EMPLOYER-VIOLATIONS-EVIDENCE.

A car repairer was injured while working under a car in a yard in consequence of the car being struck by another car. The brake of the latter car was out of repair and was placed on a track by the use of a flying switch. The company had a rule which provided that flying switches should not be made except where it would cause great delay to do the work in any other manner. Held that, if the company relied on a violation of the rule, it should make it appear that the work could have been otherwise done without great delay under the circumstances, and five or ten minutes might constitute such a great delay under certain circumstances. 4. SAME.

Where the inspection of cars and the discovery of defects therein were confided by a railway company to car inspectors, a rule of the company that flying switches should not be made without testing the brakes of the cars did not make employés engaged in switching agents for the inspection of the cars and the discovery of defects, and it was not liable to an employé for the negligence of a fellow employé violating the rule.

5. SAME-EVIDENCE-INSTRUCTIONS.

Where, in an action against a railway coinpany for injuries to a car repairer while working under a car in a yard. in consequence of the car being struck by another car because of a defect in the brake thereof, the evidence did not, as a matter of law, establish negligence of the company in failing to inspect the car and discover the defect. instructions authorizing a recovery if an employé engaged in moving the car negligently omitted to discover the defect, were erroneous. for the employé was not the vice principal of the company for the inspection of the car.

6. TRIAL-ERRORS IN INSTRUCTIONS.

An error in an instruction is not cured by the giving of a correct instruction.

Ed. Not-For cases in point, see Cent. Dig. vol. 46, Trial, § 718.]

7. MASTER AND SERVANT-INSPECTION OF APPLIANCES--DELEGATION OF DUTY.

A railroad company must inspect its cars. including brakes thereon, and it cannot escape responsibility by any delegation of such duty. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 175.]

In Bank. Appeal from Superior Court, San Luis Obispo County;. N. P. Unangst, Judge.

Action by Thomas Fogarty against the

Southern Pacific Company and others. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Judgment modified, order denying a new trial reversed, and cause remanded.

The following is the opinion in department, referred to in opinion:

“ANGELLOTTI, J. This is an action for damages for personal injuries alleged to have been suffered through the negligence of the defendants. Plaintiff was given a verdict against all the defendants for the sum of $50,000, on which judgment was entered. On motion for a new trial, the trial court required plaintiff to remit $10,000 thereof, as a condition precedent to the denial of the motion. This plaintiff did, and the motion was denied, and the judgment modified accordingly. Defendants appeal from the judgment, the modified judgment, and from the orders denying the motion for a new trial.

"The defendant Southern Pacific Company, which will hereafter be designated herein as the defendant, is a railroad corporation, owning and operating a railroad in this and other states. Plaintiff was a car repairer in its employ. At the time of the accident he was, as such car repairer, working under a car that was standing on what is known as the 'cripple track' in defendant's yard at San Luis Obispo, about a quarter of a mile thereon from its junction with the main track. This track was so designated because it was the place where cars were kept while waiting or undergoing repairs. It becoming necessary to run another car in the yard a portion of the way down the cripple track from the main line, where it was to be unloaded, a switching crew, including defendants Nelson and Waters, took the car, attached to an engine, up the main line, and then switched it on to the cripple track by means of what is called a flying switch.' The car passed to the cripple track, going at the rate of six to eight miles an hour. The cripple track from the main line was sufficiently down grade to require efficient brakes to stop the car before it reached the place where plaintiff was working. Defendant Waters was on the moving car, charged with the management thereof. and at a point about a thousand feet from the car under which plaintiff was working first commenced to apply the brake. He at once discovered that the brake had no effect on the car, and, climbing down, endeavored in other ways to obstruct its movement, but without effect. The car continued to move until it collided with the car under which plaintiff was working, causing that car to run over plaintiff's legs, injuring them to a degree requiring amputation. Examination subsequently made of the car so switched to the cripple track showed that the reason why the brake did not hold the car was that it had not been adjusted for some time and had become too slack in parts; the result be