3. The complaint in an action to foreclose a trust deed brought by a bondholder secured thereby, in his own behalf as well as in behalf of all the other bondholders, need not set forth the several owners of the bonds, if it appears that they are unknown to him.

4. By Civ. Code, § 3130, “it is unnecessary to make a demand for payment on the principal debtor in a negotiable instrument in order to charge him"; and hence, in an action on negotiable bonds, demand need not be alleged in the complaint, the suit being all the demand required.

5. If, in an action on bonds, a demand for payment is alleged, a failure to state of whom made, or that it was made improperly or of the wrong person, is matter of defense.

6. A trust deed securing bonds may be foreclosed by a single holder of unpaid coupons on the refusal of the trustee to do so on request, regardless of whether or not the refusal was arbitrary or unlawful.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Foreclosure by the Citizens' Bank of Los Angeles against the Los Angeles Iron & Steel Company and others.

From a judg

ment for plaintiff, defendant company appeals. Affirmed.

W. B. Mathews (Chas. H. McFarland, of counsel), for appellant. F. W. Burnett, for respondent.

CHIPMAN, C. Foreclosure of deed of trust. Plaintiff had judgment, from which the defendant the Los Angeles Iron & Steel Company appeals. The only question presented relates to the correctness of the order overruling the demurrer of defendant and appellant, the steel company. On May 1, 1894, the steel company executed a trust deed to the National Trust Company, as trustee, to secure the payment of the principal and interest of certain bonds, amounting to $30,000, payable in 10 years, and interest coupons payable semiannually. On September 25, 1897, plaintiff brought this action, alleging that it was the owner of $5,000 of these bonds, and of the attached coupons maturing May 1, 1895, and thereafter. Foreclosure was asked for the unpaid interest only, but the complaint was framed so as to authorize the sale of the entire mortgaged property under section 728, Code Civ. Proc. It was alleged that plaintiff was ignorant of the number of the bonds outstanding, and the owners thereof; that the trustee had been requested to bring the suit, but had refused to do so; and that payment of the coupons had been demanded more than six months prior to the commencement of the action. An accounting was asked as to the number and ownership of the outstanding bonds and coupons.

1. The only alleged ground of ambiguity or uncertainty is that the complaint fails to show what proportion of the bonds alleged therein to have been issued by the steel company is owned and held by plaintiff, or was so held at the time it demanded of the National Trust Company, trustee under the

deed of trust, to bring the suit to foreclose. This demand was made August 15, 1897, and the complaint was filed September 25, 1897, and the allegation is that plaintiff "is the owner," i. e. was the owner at the filing of the complaint. Whether plaintiff in fact owned any bonds at the time it made the demand of the trustee to bring the suit, and, if so, how many, might be important as matter of defense, should its ownership at that time be denied. But we do not think the failure to allege that plaintiff made known to the trustee the number of bonds held by plaintiff when the demand was made would be such uncertainty as would justify a reversal of the judgment. The complaint did allege the fact of ownership of certain described bonds. The trustee was made a party defendant and answered, and in its answer it stated that it refused to bring the suit for the sole reason that a majority of the bondholders had not, in writing, requested it to bring the suit. Defendant and appellant, the steel company, answered the complaint, denying plaintiff's ownership of any bonds; and this issue was determined at the trial, and the fact was found to be that plaintiff was the owner of certain bonds and coupons, as alleged in the complaint. A judgment on the merits will not be reversed on a demurrer for uncertainty and ambiguity, under the circumstances as disclosed here.

2. Objection is made, presumably in support of the general demurrer, that there is no allegation in the complaint that demand for interest was made before demand on the trustee to bring the suit; no allegation that the interest had been due six months prior to demand upon the trustee; no allegation that the trustee had been informed when he refused to bring the suit that interest had not been paid, or that plaintiff owned the bonds, or that a majority of the bondholders had requested the trustee to bring the suit, or that an indemnity bond had been offered the trustee. These objections relate to provisions found in the bond or in the deed of trust. There was no demurrer for uncertainty in respect to these matters. The point of the general demurrer seems to be that the showing is insufficient to justify the plaintiff in bringing the action, thus taking the control of the matter out of the hands of the trustee. It appears, however. that the trustee answered, alleging that the ownership of the bonds was unknown to it, and admitting that it had been called upon to bring the suit, and that it refused, as already stated, for the sole reason that a majority of the bondholders had not made a written request for it to bring the action. It appears from the decree that all outstanding bonds and coupons were brought forward by their respective owners at the trial, and all the bondholders concurred in the action and were provided for in the decree, and none of them appeals, nor does the trus

tee, and that default in the payment of interest had continued for over two years prior to request on the trustee to bring the suit. No demand was made by the trustee for indemnity, and an offer of indemnity to him was, therefore, not necessary. Plaintiff could not allege the several ownerships of the bonds; for, as shown by the complaint, plaintiff did not know who were the owners; but plaintiff, in effect, brought the action for the benefit of all bondholders, and, as we have seen, they were all ascertained at the trial, and they surrendered their bonds and coupons. As to alleging demand upon the steel company for payment, demand was alleged, and that such demand was made more than six months prior to commencing the action. But no demand on the steel company was necessary, so far as it was concerned (Civ. Code, § 3130), the suit being all the demand required. Cousins v. Partridge, 79 Cal. 224, 21 Pac. 745; Jones v. Nicholl, 82 Cal. 32, 22 Pac. 878. Furthermore, as demand was in fact alleged, a failure to state of whom made, or that the demand was made improperly or of the wrong person, would be matter of defense. Appellant's principal contention is that single bondholder cannot bring the suit without having shown that the trustee has arbitrarily and unlawfully refused to act; citing General Electric Co. v. La Grande Edison Electric Co. (C. C.) 79 Fed. 25; Id., 31 C. C. A. 118, 87 Fed. 590; and other cases. It is well settled, I think, that any holder of unpaid coupons may sue upon refusal of the trustee to do so after request upon him. Railroad Co. v. Fosdick, 106 U. S. 47, 1 Sup. Ct. 10, 27 L. Ed. 47, and cases last above cited. The cases cited by appellant do not require that the refusal of the trustee must appear to have been arbitrary or unlawful. Where the deed authorizes the trustee to proceed upon the written request of a majority of the bondholders, it is held in those cases that he cannot act without such petition. But the bondholder has a right of action upon showing that the trustee has refused to bring the suit, even though the trustee may have been justified, under the provisions of the deed, in refusing. If this were not so, it would result in placing the same limitation on the right of the individual bondholder to bring the action as is placed on the trustee, namely, the written request of a majority of the bondholders; and this would practically make it possible for a majority to deprive the minority of the remedy of foreclosure altogether. There is no provision in the deed of trust authorizing any such limitation upon the bondholder's rights. Apart from the foregoing, as we have seen, it appeared that all the parties interested in the action, including the trustee, were before the court, and the bondholders not parties came in and surrendered to the court their bonds and coupons. Besides, it was made to appear by the answer of R. H. Her

ron, who was permitted to answer as a de fendant, that he became the owner of ali of the steel company's property at a receiver's sale, and the decree refers to him as the successor in interest of appellant. This answer was treated as a cross complaint, and was served on defendant the steel company, and was not answered by it. The substantial rights of appellant have in no wise been injuriously affected, and no good purpose can be subserved by a retrial of the case. The judgment should be affirmed.

PEOPLE. BROOKS. (Cr. 646.)1 (Supreme Court of California. Jan. 3, 1901.) CRIMINAL LAW-RECORD-APPEAL-EVIDENCE SUFFICIENCY HOMICIDE MURDEROUS DESIGN-POLICE OFFICER-PRIVATE CITIZEN -LAW OF ARREST - INSTRUCTIONS — SUFFI CIENCY.

1. Only such evidence which the record shows to have been introduced in a criminal case will be considered on appeal.

2. Deceased was shot at by a policeman, who testified that his revolver was of a 44-caliber, whereupon defendant pursued deceased, firing a number of shots at him with what his close friends testified was a 41-caliber pistol. The pursuit lasted four or five blocks, and it was shown that after defendant fired the last shot deceased threw up his hands, and exclaimed, "Oh, my God!" and that he was found lying a short distance from where he made the exclamation. On examination it was found that deceased was hit by only one bullet, which was of a 44-caliber. Held sufficient to show that deceased was killed by defendant, though there was no positive evidence that he had a 44-caliber pistol, since the jury were not obliged to believe everything to which defendant's close friends testified.

3. Defendant, who was a barkeeper, left his saloon in response to a telephone message, going to another saloon, and, after a whispered conversation there with a person, left, and in 10 or 15 minutes returned to his saloon, appearing to be in a state of great excitement. He hurriedly procured a revolver, and went to the back door, whereupon a police officer followed him, and, seeing deceased in the back yard with a revolver in his hand, went out, and ordered him to throw up his hands. The latter fired a shot, and the officer, after firing six times at deceased, dropped, and went towards the saloon, saying to defendant, "Help me, and shoot him." Defendant emptied his revolver at deceased, and then returned, procured another pistol, and pursued deceased, firing a number of times, deceased falling after the last shot, and dying as the result of a bullet hole in his body. Held that, though defendant may have pursued deceased, and shot at him, through a high sense of duty imposed on him by the police officer, the jury were warranted in finding that he was actuated by a murderous design to kill him.

4. In a trial for homicide the court charged that a citizen must assist in arresting a person when called on to do so by a peace officer, and that, if such arrest is resisted, such citizen may use sufficient force to effect his purpose, even though it go to the extent of taking life; and 1 Rehearing denied February 2, 1901.

that fleeing from arrest constituted a resistance. Further, that if the jury believed from the evidence that defendant had a right to believe, as a reasonable man, and did believe, that deceased had unlawfully shot at or mor tally wounded a peace officer in resisting arrest, it was his duty to pursue and arrest deceased, and use all necessary means of effecting his arrest. Held to correctly and sufficiently state the law as to a private citizen's right to assist a peace officer when called on to make an arrest.

5. Under Pen. Code, § 671, providing that, where the punishment is imprisonment for a term not less than any specified number of years, and no limit to the duration of the imprisonment is declared, the defendant may be sentenced to imprisonment during his natural life, the court may sentence one found guilty of murder in the second degree to imprisonment for life.

In bank. Appeal from superior court, Fresno county; E. W. Risley, Judge.

Jack Brooks was convicted of murder in the second degree, and he appeals. Affirmed.

Lewis H. Smith, Frank H. Short, W. D. Tupper, W. P. Thompson, and W. D. Crichton, for appellant. Tirey L. Ford, Atty. Gen., for the People.

The record is in a very loose and unsatisfactory condition. The bill of exceptions, after showing that certain witnesses were examined at the trial, and certain evidence taken, contains a statement of the contents of a certain alleged dying declaration of the deceased, which was used at the preliminary examination before the magistrate; but the record does not show that said declaration was introduced in evidence at the trial. There is also a statement of a recitation of certain evidence and facts made by the judge at the time he pronounced sentence, but the things which he recited do not appear among the evidence taken at the trial. Of course, this is a mere statement of what the judge said, but there is nothing to show that the evidence to which he alludes was introduced; and these things cannot be considered here. In determining this appeal we can consider only the evidence which the record shows to have been introduced. The record, as we must consider it, presents only two contentions of appellant which need be noticed: First, that the evidence is insufficient to sustain the verdict of guilty; and, second, that the court erred, to appellant's prejudice, in refusing to give certain instructions to the jury which appellant asked.

1. We cannot say that the evidence was insufficient to support the verdict. The main facts of the case are these: On the morning of June 27, 1899, shortly before daylight, appellant was in the Favorite saloon in the city 63 P.-30

of Fresno, where he was employed as a barkeeper, and, after some conversation through the telephone,-in the saloon,-he went out, and remained away about 10 or 15 minutes, when he returned. When he left the Favorite he went to another saloon across the street, and in the immediate neighborhood, called the "Golden West," to which place he had been summoned through the telephone. He had there a whispered conversation with a Mr. Ardell, and, after remaining in the Golden West a minute or two, he went out of the side door behind certain "cribs" or houses of prostitution. That part of the city is known generally as Chinatown, and is occupied to a great extent by prostitutes. It does not appear where he went immediately after leaving the Golden West, but, as before stated, in about 10 or 15 minutes he returned to the Favorite saloon, and appeared to be in a state of great excitement. He hurriedly went behind the bar, and got a pistol, and went to the rear door of the saloon. At that time Rice, who was a police officer, and was in or at the threshold of the saloon, followed the appellant to the back door, and said to him something like "This is my business," or, "If there is going to be any shooting, I will do it." Rice looked out of the glass door, and, seeing the deceased, Donelly, with a pistol in his hand, went out and said to him, "Throw up your hands;" but Donelly、immediately fired one shot, either at Rice (as the latter testified) or up into the air (as another witness testified), and Rice then fired six shots at Donelly. Rice testified that, his pistol being then empty, he dropped, and went into the saloon, and that as he dropped he called on appellant to "come and help him," and said, "My impression is that I said 'Help me' and 'Shoot him,' both." Appellant, who had gone out of the saloon with or closely behind Rice, immediately began to fire at Donelly, who retreated; and appellant, following him, fired six shots at him, which emptied his pistol. He then returned a short distance, and, meeting Ardell, got another pistol from the latter, and then again pursued the deceased for about four blocks, and fired at him again at least twice. The last shot was near the residence of Mrs. Shober, who was awakened by the shots, and who testified that she got up, and saw Donelly running; and that about half a second after the last shot he threw up his hands and exclaimed, "Oh, my God!" He was found lying about a block from Mrs. Shober's house, with the bullet hole in his body which caused his death a few days afterwards. He had been shot only once, and the wound was made by a 44-caliber Smith & Wesson pistol, and Rice testified that this was the kind of pistol with which he shot. It was in evidence that the pistol with which appellant fired the first six shots was a 41-caliber Colt, and it is claimed by appellant that there was proof that the pistol which he received from Ardell was a 41-caliber. The contentions of appel

lant are: First, that the deceased must have been killed by a 44-caliber bullet from Rice's pistol, and could not have been shot by appellant, because the latter had no pistol of that kind; and, second, that, if appellant killed the deceased, he was justified in so doing by the command of the police officer, Rice. As to the first contention, it is sufficient to say that appellant had more than one pistol, and that there was sufficient evidence to warrant the jury in finding that the deceased was killed by one of the last shots fired by appellant, although there was no positive evidence to the point that he had a 44-caliber pistol. The jury were not compelled to believe everything testified to by witnesses who were apparently his close friends. As to the second contention, it is enough to say that, while it might be imagined, perhaps, that appellant pursued the fleeing Donelly, and shot at him at every opportunity, solely through a high sense of duty imposed on him by Rice, still the facts amply warranted the jury in finding that he was actuated by a murderous design to kill him. Indeed, what Rice said can hardly be construed as a request to arrest Donelly, or to pursue him for that purpose. Rice testified that while he himself was shooting at Donelly he supposed that the latter was still shooting at him, which was a mistake, as Donelly shot only once; and what he said to appellant when his own pistol had been emptied was apparently for the purpose of asking appellant to rescue him from his supposed present danger. At all events, it was for the jury to say why appellant alone pursued the deceased so far, and from all the evidence they were justified in finding that he did so for the purpose of committing murder.

2. We do not think that appellant was at all prejudiced by the refusal of the court to give certain instructions asked by his counsel. The court did, at the request of defendant, give to the jury some 14 instructions, and these instructions, together with others given by the court of its own motion, correctly and fully stated the law applicable to the case; and these instructions were certainly very favorable to the appellant. We think that all of the instructions refused which were correct were substantially included in the instructions given. The rejected instructions most insisted upon by appellant as correct refer to the right of a citizen to assist a police officer when called upon to make an arrest; but as to this matter the court instructed the jury at the request of the appellant as follows: "A citizen must assist in the arrest of a person when called upon by any peace officer so to do, and when so called upon the law clothes such person or citizen with the rights and duties and immunities of such officer. While an officer, or citizen requested by an officer to assist in making an arrest, must use as little violence as possible, if resisted he may use sufficient force to effect his purpose, even though it go to the extent of taking life.

Resisting arrest does not always constitute the use of physical force. A person may resist arrest by fleeing from an officer attempting to arrest him. If the jury believe from the evidence that the defendant had a right to believe, as a reasonable man, and did believe, that the deceased had unlawfully shot at or mortally wounded the officer, Tony Rice, in resisting arrest, before giving pursuit and the firing of the fatal shot, then the defendant not only had the right, but it was his duty, to so pursue and arrest the deceased, and use all necessary means of effecting his arrest." Under these instructions the jury were fully informed as to the law on this subject, and the appellant was not prejudiced by the refusal of the court to give the instructions refused.

There is nothing in the point that the court had no authority to sentence the appellant to imprisonment for life. Section 671 of the Penal Code expressly provides that, where the punishment is imprisonment for a term not less than any specified number of years, and no limit to the duration of the imprisonment is declared, the defendant may be sentenced to imprisonment during his natural life. There are no other points requiring notice. The judgment and order appealed from are affirmed.

We concur: BEATTY, C. J.; TEMPLE, J.; HENSHAW, J.; VAN DYKE, J.; GAROUTTE, J.; HARRISON, J.

(131 Cal. 183)

GEORGES v. KESSLER et al. (L. A. 778.) (Supreme Court of California. Dec. 29, 1900.) MECHANIC'S LIEN-FORECLOSURE-TRIAL-OBJECTION TO EVIDENCE COMPLAINT-AMBI-GUITY SUFFICIENCY DETERMINATION ON DEMURRER-EXHIBIT-REVIEW-EVIDENCEFINDING OF COMPLETION OF WORK.

1. In determining on demurrer whether a complaint on foreclosure of a mechanic's lien sufficiently alleges the contents of the notice of lien, a copy of the notice attached, and expressly made a part of the complaint, must be regarded as a part of it as much as if it had been set forth in the body thereof.

2. An objection to a complaint to foreclose a mechanic's lien that it cannot be determined therefrom whether the contract was made by one or both of two defendants named, is without merit where it expressly alleges that the contract was made "with the said defendant," thereupon naming one of the defendants referred to.

3. Where a complaint on foreclosure of a mechanic's lien expressly alleges that a husband and wife, defendants thereto, are the owners of the land, and there is no intimation that she was a party to the contract otherwise than that she assented thereto, an objection that the complaint is ambiguous, in that it cannot be ascertained whether she is sought to be held under an alleged contract made with her, or on account of some interest she has in the land, cannot be sustained.

4. On foreclosure of a mechanic's lien, where the notice of lien was offered in evidence, defendant objected on the ground "that it was incompetent, irrelevant, and immaterial, and that it was a variance from the allegation of the complaint; no such lien having been pleaded,

and no contract set out in the complaint such as is described or attempted to be described in said lien." Held, that the objection did not point out to the court wherein a variance existed, or was supposed to exist; and was, therefore, properly overruled.

5. The finding of the court on foreclosure of a mechanic's lien that plaintiff fully completed the work according to the terms of the contract was objected to as not being justified by the evidence, because plaintiff did not put in an electric alarm bell; and on this point plaintiff testified that defendant directed him not to put it in, saying he would not pay for it, while defendant testified that its cost was included in the proposed sum for which the work was to be done. Held that, the evidence being conflicting, the finding could not be disturbed.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; D. K. Trask, Judge.

Action by Ellis P. Georges against W. J. Kessler and others. From a judgment for plaintiff, and from an order denying a new trial, defendant W. J. Kessler appeals. Affirmed.

Len Claiborne, Dunnigan & Dunnigan, for appellant. F. G. Hentig and John W. Kemp, for respondent.

HAYNES, C. Action to foreclose a mechanic's lien under a contract between the plaintiff and defendant W. J. Kessler for an improvement upon a building situate upon premises alleged to be the property of Mr. and Mrs. Kessler. Defendant Hanna was alleged to have or claim some interest therein, but she made default, and will not be further noticed. The plaintiff had findings and judg ment, and defendant W. J. Kessler appeals from said judgment and from an order denying his motion for a new trial.

The demurrer to the complaint is general and special. Under the general demurrer it is said that the complaint does not allege that the notice of lien described the property sought to be affected by the lien, nor the terms, time given, and conditions of the contract. The complaint fully described the property as the westerly 82% feet of lot 9 in block F of the Mott tract, and identified it as that upon which the building whereon the work was done was situated, and, after stating the work agreed to be done, stated the amount to be paid, and that it was agreed to be paid upon completion of the work; and, in addition to these allegations, which, we think, were sufficient, a copy of the notice of lien was attached to and expressly made part of the complaint, and became part of its allegations; "for there can be no difference between setting forth such instrument in the body of the pleading and in annexing it as an exhibit, and making it a part of the pleading by proper reference. In each case the copy is a part of the pleading. The only difference is in the arrangement or sequence of the parts, and this difference is entirely unimportant upon the question whether the pleading states a cause of action." Lambert

v. Haskell, 80 Cal. 612, 22 Pac. 328; Ward v. Clay, 82 Cal. 506, 23 Pac. 50, 227. See, also, the concurring opinion of Mr. Justice Temple in Society v. Thornton, 127 Cal. 577, 60 Pac. 37.

The first specification of ambiguity is to the effect that it cannot be determined whether the contract was made by Mr. Kessler, or Mrs. Kessler, or by both. It expressly alleged that the contract was made "with the said defendant W. J. Kessler," and the same statement is made in the notice of lien. It is also specified that the complaint is ambiguous in that it cannot be ascertained whether Mrs. Kessler is sought to be held under an alleged contract made with her, or on account of some interest she has in the land. It was expressly alleged that Mr. and Mrs. Kessler are the owners, and there is no intimation that the wife was a party to the contract otherwise than that she assented to it. The next specification is a repetition of the first above noticed. The next is that the complaint is ambiguous and uncertain in that the allegations in the complaint are inconsistent with the exhibit attached to it; but in what respect, or in what particular, is not specified. When the notice of lien was offered in evidence by the plaintiff, defendant objected on the ground "that it was incompetent, irrelevant, and immaterial, and that it was a variance from the allegation of the complaint, no such lien having been pleaded, and no contract set out in the complaint such as is described or attempted to be described in said lien." This objection did not point out to the court wherein a variance existed, or was supposed to exist.

Nor do we think there is in fact any variance between the contract stated in the complaint and that stated in the notice of lien. The contract was oral, the proposition and specifications being memoranda. The proposition made by plaintiff was to do the work for $138, "alarm bell and battery not included." This proposition was accepted by defendant. The reference to the alarm bell shows that there had been previous conversations, in which an alarm bell was spoken of, and the evidence confirms the inference. The lien filed was for $138, the amount or value of the work stated in the proposition (the alarm bell and battery not included), less $5 paid on account. At the conclusion of plaintiff's evidence in chief the defendants moved for a nonsuit on the ground that the evidence was not sufficient to show that the work was done according to the specification and contract set out, and on the further ground that there was no testimony tending to prove the contract set out in the complaint. This motion was properly denied. It was but a restatement of appellant's contention as to the supposed variance between the complaint and the notice of lien. In the transcript there are several specifications of alleged insufficiency of the evidence to support the findings, though but one of them is noticed in appel