sum of one dollar to each of us in hand paid, we guaranty and covenant that we will pay or cause to be paid to the said Camp and Wiggins a dividend of eight per cent. per annum on the par value of said stock for the term of five years, from the 21st day of March, 1892, payable at the Jefferson County National Bank, of Watertown, New York; and we covenant and guaranty to pay or cause to be paid the said eight per cent. dividend promptly each year as the same become due, for a period of five years. It is further covenanted and agreed by the undersigned that within ninety days of the expiration of the said five years said T. H. Camp and G. W. Wiggins shall have the right and option to retain said stock at par value, without being required to make any further or other payment therefor than the original amount of their subscription and payment; or they (the said T. H. Camp and G. W. Wiggins) may at any time within the said ninety days from the expiration of the said five years tender the said stock to the Utah National Bank, of Salt Lake City, Utah (transmission by mail will be sufficient tender), duly assigned in blank for the benefit of the obligors upon this undertaking, and thereupon the undersigned covenant and agree to pay the said Camp and Wiggins the full sum of fifteen thousand dollars, with accrued interest from the time when the fifth annual dividend of said eight per cent. was due and paid. And the undersigned further covenant and agree, if said interest is not paid promptly at the time and place hereinbefore mentioned, that the entire principal and interest shall then and there become due, and upon tender of the stock to the said Utah National Bank in the manner and for the purposes aforesaid payment in full may be demanded and collected from the undersigned on this bond, for which payment of the principal sum of fifteen thousand dollars, and the interest thereon annually at the rate of eight per cent. per annum, which interest for the said term of five years is to be paid or payment thereof secured as dividends on the stock aforesaid, well and truly to be made, we, the undersigned, hereby bind ourselves, our heirs, administrators, and assigns, jointly and severally, firmly by these presents." The following allegations of the complaint are not denied by the answer, and are, therefore, admitted, viz.: That the said defendants, on the 8th day of March, 1892, executed and delivered to T. H. Camp and George W. Wiggins said obligation in writing. That in pursuance thereof the said Camp and Wiggins subscribed for the stock therein mentioned, and paid into the treasury of the Union Stock-Yards Company, for said stock, the sum of $15,000. That no dividends have been paid or declared by the Union Stock-Yards Company, or at all. That, after the first dividend was due on said stock pursuant to the terms of the written obligation hereinbefore set out, and beginning on, to

wit, April 3, 1893, and at divers times thereafter, said defendants paid in all, as interest on said sum of $15,000 secured by the obligation hereinbefore set out, the sum of $3,200, interest up to and including November 21, 1894. That an installment of interest on said obligation, amounting to the sum of $1,200, became due and payable on March 21, 1895, and that said defendants paid on account thereof only $800, and as to $400 thereof made default, and neglected and failed to pay the same, or any part thereof; and that on March 21, 1896, another installment of interest on said obligation, amounting to $1,200, became due and payable, but said defendants made default, and neglected and failed to pay the same, or any part thereof. That on the 9th day of October, 1896, said defendants not having paid the said two last-mentioned installments of interest, the said T. H. Camp (to whom, it is alleged in the complaint, the said Wiggins, on the 25th day of March, 1892, transferred his interest in said contract and stock, but which allegation is denied in the answer), by his agent and attorney, tendered said stock, indorsed in blank for the benefit of the defendants, to the Utah National Bank in Salt Lake City, Utah, and demanded of said bank payment of said $15,000, with the interest due thereon, but said bank refused to pay the same, or any part thereof; and that thereupon the said T. H. Camp, by his said agent and attorney, in writing notified each of the defendants of said tender and refusal, and demanded of them payment of said $15,000, and the accrued interest thereon, but that said defendants did not pay the same, or any part thereof, and have ever since failed to make such payment. In avoidance of these admitted facts, the defendants, in their answer, allege that the said T. H. Camp, instead of tendering said stock while the defendants were in default, accepted and retained said stock as his own; "that on the 21st day of March, 1895, the interest on said obligation became and fell due, to wit, the sum of $1,200; that the said defendants did not pay the same, but did pay thereupon the sum of $800, and made default in payment of the remaining $100; that no part of said $400, or interest thereon to date, was then, or at any time since has been, paid; that thereby, by the terms of said bond, the principal sum of said bond, $15,000, became and was due, and remained thereafter due for the space of 90 days; that by the terms of said bond the holders thereof were required to elect within said 90 days whether to retain the stock or rely upon the said liability upon the bond; that at the expiration of the said 90 days the holders of the bond elected to retain the stock, and not to rely upon the personal liability of the signers of said bond; that the said holders of said stock did retain the said stock at that time and afterwards until the 9th day of October, and ever since 1896, and never at any tine during that period between

the 21st day of March, 1895, and the 9th day of October, 1896, indicated in any form to the defendants that the then holders of the bond intended to rely upon the personal security at all, but, by the retaining of said stock, elected to waive any suit upon said bond." There is no evidence that the said T. H. Camp in expressed terms elected to retain the stock, and release the defendants from liability; but the claim that he did so is based solely on the terms of the contract and the admitted facts that he retained said stock for more than 90 days from the first default of the defendants, which occurred on March 21, 1895, and did not tender the same to the Utah National Bank, or indicate any intention of holding defendants liable, on account of the default, for the principal sum mentioned in said contract, until October 9, 1896. The court below held that the contract did not warrant defendants' contention that such retention of the stock and the failure to tender the same to the Utah National Bank in 90 days from the default of the defendants was, under the provisions of the contract, an election by the said T. H. Camp to retain the stock, and release the defendants from liability.

The following statements in the appellants' brief indicate the important points presented by the assignments of error, and principally relied upon by defendants: "The principal points relied upon by the appellants are that the court erred in holding that the grantee could make a tender of the stock at any time to the bank, and in not holding that the grantee had elected to treat the stock as his by not tendering it within ninety days after default; in admitting in evidence the letters of the co-signers to the bond and the letters of Mason; in ruling that defendants could not show by way of defense that some of the signers had become insolvent, and permitting the plaintiff to sue without administration of the estate of T. H. Camp being had in the state of Utah."

As the facts relating to the first point mentioned in said brief are not disputed, the decision of the points depends solely upon the true interpretation of the contract. Its terms are plain and unambiguous. Defendants' counsel claim that by the terms of the contract the obligees were required, within 90 days from the date of the first failure to pay the interest, to make the election mentioned in the answer. No such terms are expressed in said contract, or implied from its expressed terms. The words, "ninety days from the expiration of said five years," expressed in the contract, evidently were not intended to have, and under no tenable interpretation could be given, any other effect than to fix the period of time within which, after the expiration of five years, the obligees should exercise the right and option specified in the contract of either retaining the stock or tendering it to the Utah National Bank. The words "ninety days" do not occur in the contract except in

connection with the expression "from the expiration of said five years." The contract provides that, if the interest is not paid promptly, both the principal and interest shall then become due; and immediately following this provision the following language occurs: "And upon tender of the stock to the Utah National Bank in the manner and for the purpose aforesaid payment in full may be demanded and collected." Counsel for the appellants claim that this clause of the contract requires the obligees to tender the stock to the Utah National Bank within 90 days after default. The language used is not susceptible of such a construction. While the purposes of both of the tenders mentioned in the contract are evidently the same, and each was required to be made in the same manner, yet as the right to make the first tender mentioned depends solely upon the lapse of time, and cannot be made until after the expiration of five years, and the right to make the second tender depended upon entirely different events, and accrued immediately upon default in the payment of the interest, the words "in the manner and for the purpose aforesaid" have no relation whatever to the period of 90 days named in the contract, and did not limit the time within which the stock might be tendered to the Utah National Bank to 90 days after default. The plaintiff claims to be the legal owner and holder of said contract and stock by virtue of certain assignments thereof. It is alleged in the complaint that on the 23d day of March the said George W. Wiggins, for the consideration of $7,500, to him in hand paid by the said T. H. Camp, assigned to said Camp all his right, title, and interest in and to said contract and stock; that the said T. H. Camp died in the county of Jefferson, state of New York, on the 7th day of February, 1897, leaving a last will and testament and an estate in said county, and that at the time of his death he was a resident thereof; that on the 10th day of February, 1897, Walter H. Camp, George V. S. Camp, and Frederic S. Camp were appointed executors of the last will and testament of the decedent, T. H. Camp, by the surrogate of said Jefferson county, and thereupon said appointees qualified as such executors; that on the 21st day of June, 1897, said executors, for a valuable consideration, paid by plaintiff, did, by writing, assign, transfer, and set over to said plaintiff said contract, and all their right and the rights of the said decedent and of his estate thereunder, together with all sums of money due or to become due thereon; that by the laws of the state of New York said contract, and all the rights of said decedent thereunder, passed to said executors, to be used and disposed of by them according to their own discretion, without the order of any court in the premises. The foregoing allegations are denied by the answer, but the trial court, in its findings, found the facts as alleged in the complaint. The findings are justified by the evidence, and, in connection

with the facts admitted by the pleadings, support the judgment rendered in favor of plaintiff for the sum mentioned in said contract, with interest thereon, and should, therefore, be affirmed, unless some reversible error was committed in the course of the trial.

The second principal point relied upon by appellants is that the court erred in admitting in evidence, over appellants' objection, the letters of the co-signers of the contract. These letters had no bearing on any of the issues formed by the pleadings, but were admissions by the co-signers, who wrote the letters, of the liability of the defendants to the obligees of the contract; and the objection urged to the admission of these letters in evidence was that the admission of liability by one of the co-signers of said contract could not bind the other signers. As the liability of the defendants to the obligees of said contract, as before shown, is admitted by the pleadings, the plaintiff was not required to introduce any testimony on that point; so that the introduction of these letters, even though it were admitted that they were, as claimed by the appellants, hearsay and incompetent, as they related to facts admitted by the pleadings, their admission is not reversible error. See 2 Enc. Pl. & Prac. (2d Ed.) 553, note 3, and cases cited.

The third principal point relied upon by appellants is that the court erred in ruling that the defendants could not show by way of defense that some of the signers had become insolvent. The defendants, for a good and sufficient consideration moving to them as principals, not only guarantied the annual payments mentioned in said contract, but, as principals, covenanted and agreed to pay to the said Camp and Wiggins, upon the happening of certain events, the $15,000 mentioned in the contract. As the defendants are principals in said contract, the insolvency of some of them cannot affect the plaintiff's rights regarding the others, and no delay in the enforcement of the contract short of the statutory period of limitations can defeat his claim.

The last principal point relied upon in the appellants' brief is that the court erred in permitting the plaintiff to sue without administration of the estate of the said T. H. Camp, deceased, being had in the state of Utah. As the executors, under the laws of New York, had authority to transfer said contract and stock by assignment, and did so transfer the same, the plaintiff had the right to sue and maintain the suit as such assignee, without regard to any administration of said estate.

It is not necessary to pass upon the remaining assignments of error. No reversible error is shown by the record. It is therefore ordered that the judgment of the lower court be affirmed, and that the appellants pay the costs.

BARTCH, C. J., and MCCARTY, District Judge, concur.

St. 1895, p. 146, provides that, when a creditor has a mortgage securing payment of a part of his debt, he shall be admitted as a creditor in insolvency proceedings against the debtor only for the balance of his debt after deducting the value of the mortgaged property. L. and others, doing business as L. Bros., were adjudged insolvent, and property occupied by L. was set off to him as a homestead. Prior to the insolvency proceedings, appellant procured a mortgage on the homestead, signed by L. and wife, securing a part of the firm's indebtedness to appellant. The members of the firm had no individual creditors. Held, that appellant was entitled to be admitted as a creditor in the insolvency proceedings only for the balance of his claim after deducting the mortgage.

Department 1. Appeal from superior court, city and county of San Francisco; Charles W. Slack, Judge.

Voluntary proceedings in insolvency by Isidor Levin and others, co-partners as Levin Bros. From an order settling the final account of the assignee in insolvency, the AngloCalifornian Bank appeals. Affirmed.

Jesse W. Lilienthal, for appellant. Joseph Kirk and Walter D. Mansfield, for respondents.

VAN DYKE, J. Voluntary proceedings in insolvency were commenced herein on January 7, 1897, and said firm and the individual members thereof adjudged to be insolvent. Prior thereto, to wit, April 20, 1893, the Anglo-Californian Bank, Limited, procured from Isidor Levin and his wife, to secure to it the payment of all sums due or to become due from said Levin Bros., a mortgage on a piece of property owned by said Isidor Levin, individually, and occupied by him and his wife as a domicile, but no declaration of homestead had been filed prior to the commencement of the proceedings in insolvency. Under section 64 of the insolvent law of 1895, the court in such insolvency proceeding, on March 24, 1897, set apart to said Isidor Levin the property so mortgaged as a homestead. The said mortgage which was so held by said bank is of the value of $6,000, and in the settlement of the final account of the assignee in said insolvency proceedings the court below held that the amount of said mortgage security should be deducted from the claim of said bank. From this portion of the order settling the said final account the bank appeals. The mortgage held by the appellant was not displaced by the homestead, but is superior and paramount thereto. Further, it appears there are no separate creditors of any of the members of said partnership firm. The claims of 182 creditors are approved, ranging in amount from a few dollars to over $27,000; the largest being the claim of said appellant, after deducting $6,000 covered by its security. The net amount

to be distributed among these numerous creditors was only $21,714.82. Section 48 of the insolvency act provides: "When a creditor has a mortgage or pledge of real or personal property of the debtor, or a lien thereon, for securing the payment of a debt owing to him from the debtor, he shall be admitted as a creditor only for the balance of the debt, after deducting the value of such property," etc. St. 1895, p. 146. It is also provided by section 39 of the same act that the assignee shall keep separate accounts of the joint stock or property of the co-partnership, and the separate estate of each member thereof, and the net proceeds of the joint stock shall be appropriated to pay the creditors of the co-partnership, and the net proceeds of the separate property of each partner shall be appropriated to his separate creditors; and if there shall be any balance of the separate estate of any partner, after the payment of his, separate debts, such balance shall be added to the joint stock for the payment of the joint creditors.

It is contended on the part of the appellant that the security held by it is no part of the assets of the partnership, "the debtor," and that such security was upon property excluded from the jurisdiction of the insolvency court. But in section 66 of the insolvency law it is expressly provided that "words used in this act in the singular include the plural, and in the plural the singular, and the word 'debtor' includes partnerships and corporations." The individual members, as well as the partnership, are before the court in the insolvency proceeding, and subject to its jurisdiction. "Each partner owes all the debts of the partnership, and his goods may be taken to pay them." In re Straut, 125 Cal. 417, 58 Pac. 62. The general purpose and policy of the law is to produce equality, as far as possible, among the creditors of the insolvent debtors; and in the marshaling of assets to bring about this result our Civil Code lays down the following rule: "Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons." Civ. Code, § 3433. See, also, section 2899, Id. This declaration of our Code represents an old established principle of jurisprudence in reference to marshaling of assets. In Kent v. Williams, 114 Cal. 541, 46 Pac. 462, it is said: "The doctrine of the marshaling of assets, under which, if one creditor has a lien on only one of them, the former must first proceed against that upon which the latter has no lien, is not only fully established by general authority, but is also expressly declared in sections 2899, 3433, Civ. Code." We are

-JUDGMENT-FINDINGS-SUFFICIENCY.

1. Plaintiff sued for possession of a mining claim, alleging that defendants unlawfully took possession of and ousted plaintiff therefrom, that defendants were engaged in extracting ore, and that the value of the ore wrongfully taken was $1,000. Defendants demurred to the complaint for uncertainty, objecting that the ouster was alleged to be from only a portion of the mine, and did not describe the portion, that the damages were alleged on information and belief, and that there was no allegation that any cuts had been made by defendants. The demurrer was overruled, and the defendants answered, alleging ownership and right of possession in the whole claim. Held, that the overruling the demurrer was not reversible error, since the defendants could not have been misled by the uncertainty in the complaint.

2. In ejectment for a mining claim the complaint contained the usual allegations of plaintiff's ownership and ouster by defendants, but did not allege any forfeiture or abandonment of the claim by defendants; while the answer alleged defendants' ownership of the entire claim. Held, that findings that on a given date defendants claimed to own the tract under the United States location laws, but that such location had lapsed, and become void, and the land was at that time vacant public mineral land, and that on that date plaintiff located such claim, thereby becoming the owner, and was such owner at the time of ouster, were within the issues raised by the pleadings.

3. Defendants' contention that such findings were equivalent to a finding of abandonment or forfeiture by defendants, which must be specially pleaded, could not be sustained, since the term "lapsed" in the finding had no welldefined significance in mining law, and might be rejected as surplusage, and the judgment allowed to rest on the finding that the land was vacant public mineral land.

Commissioners' decision. Department 2. Appeal from superior court, Mariposa county; John M. Corcoran, Judge.

Action by T. G. Contreras against Emelie Merck and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Frank H. Farrar, for appellants. Congdon & Congdon and G. G. Goucher, for respondent.

CHIPMAN, C. Action to recover possession of a mining claim, for damages, and for

an injunction. Plaintiff had judgment for possession, for one dollar damages, and perpetually enjoining defendants from trespassing upon the premises in controversy. The appeal is from the judgment on the judgment roll.

1. Appellants contend that their demurrer for uncertainty, ambiguity, and unintelligibility should have been sustained. The complaint alleged ownership and right of possession of plaintiff in and to a certain mining claim known as the "St. Gabriel Mine," and alleged that defendants unlawfully "entered upon and took possession of a portion of said mining claim and premises, and ousted plaintiff from said portion, * * and are now engaged in wrongfully digging, mining, and extracting gold-bearing quartz, gold specimens, and gold from said mining claims, and converting the same to their own use." The complaint further alleges that plaintiff, being uninformed as to the exact value of said gold-bearing quartz so wrongfully

con

and unlawfully dug, mined, verted by defendants, alleges, on said lack of information and on his belief, that the value thereof is one thousand dollars." Appellants claim uncertainty, for (1) that the complaint alleges unlawful possession by defendants of only a portion of the mine, and does not describe such portion; (2) the allegations of damage are on information and belief; and (3) there is no direct allegation that "any holes or cuts have been made and done" by defendants. The answer claimed ownership and right of possession of the entire premises to be in defendant Merck, and the answer admitted having taken possession, and by the form of denial as to the alleged extracting of ores therefrom admitted having done so, and by the same form of denial admitted an intention to continue extracting ores. In short, the answer put in issue the question of ownership or right of possession of the entire premises, and the resulting right of defendants to occupy the premises, and do with them as they liked. The cause was tried on the issues presented by the complaint and answer, and we cannot see that appellants could have been misled or injured by the form of the complaint. In speaking of the rule where the demurrer is for uncertainty, the court, in Alexander v. Mill Co., 104 Cal. 532, 38 Pac. 410, said: "It must not be mere abstract error, but it must be prejudicial and injurious error, in order to avail appellant; for otherwise he has no cause of complaint." See, also, Jager v. Bridge Co., 104 Cal. 542, 38 Pac. 413.

2. It is contended that the findings are not within the issues. The claim seems to be that the court finds forfeiture as a fact on the part of defendant Merck, whereas there is neither allegation of abandonment nor allegation of forfeiture on her part in the complaint. The finding is "that on the 19th day

63 P.-22

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of February, 1898, the defendant Emelie D. Merck claimed to hold the tract of land described under the location laws of the United States relative to quartz claims, but the said location had lapsed and become void, and said tract of land was at that time vacant public mineral land." The court then finds that plaintiff was, on February 19, 1898, a qualified mineral locator, and located the premises in question on that day, and thereby became the owner and entitled to possession thereof, and was such owner when subsequently defendants entered upon said premises and ousted plaintiff therefrom. The principal fact at issue was the ownership of the mine. It was not necessary for plaintiff to allege forfeiture or abandonment by defendant Merck. The complaint contained sufficient allegations in an action in ejectment, which defendants concede this to be. As was said in Harris v. Kellogg, 117 Cal. 488, 49 Pac. 708: "A mining claim is real estate, and the rules of pleading relative to real estate are applicable to it. In the ordinary action of ejectment it is sufficient for the plaintiff to allege that he was the owner of the land in question. Such an averment carries with it all the facts essential to establish his ownership, and the means by which he became the owner would be only evidence of his ownership, and should not be alleged." The same rule would apply to the defendants in setting up ownership in their answer. In the present case defendants averred ownership in defendant Merck, and the answer is deemed to be denied. It was competent for plaintiff to show that the location under which defendant Merck claimed ownership "had lapsed and become void," and that when plaintiff initiated his claim the land was "vacant public mineral land of the United States." What the evidence was from which the court made its finding we do not know, and we must, on this appeal, presume that it was sufficient. Appellants contend that the finding that the defendants' claim had "lapsed" was equivalent to a finding that it was "forfeited," and this, it is contended, could not be proved under the general issue, but must be specially pleaded. Precisely what the court meant by the term "lapsed" may not be easily conjectured, as it is a term unknown to mining usage or laws; but we have no right to assume that it meant a technical forfeiture. The judgment may rest on the finding that "the land was vacant public mineral land," and the finding that the claim had "lapsed" may be rejected altogether. We advise that the judgment be affirmed.

We concur: GRAY, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.