tion upon their default, they made application to the court to have the judgment set aside and leave granted them to answer, upon the ground that their default and the judgment entered thereon was taken against them through, inadvertence and excusable neglect, and in support of their motion presented affidavits setting forth the facts upon which they relied. At the hearing of the motion no counter affidavits were filed, and the court granted their motion upon the condition that they pay into court for the use of the plaintiff the sum of $25. From this order the plaintiff has appealed.

The granting or denying a motion to set aside the default of a defendant is so largely a matter of discretion with the trial court that, unless it is clearly made to appear that there has been an abuse of this discretion, this court declines to set aside its order. Especially are we indisposed to review its action when it has set aside the default, and it does not appear that the plaintiff has sustained any prejudice thereby. This discretion of the court is best exercised when it tends to bring about a judgment upon the merits of the controversy between the parties. Section 473, Code Civ. Proc., is a remedial provision, and is to be liberally construed, so as to dispose of cases upon their substantial merits, and to give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it. Buell v. Emerich, 85 Cal. 116, 24 Pac. 644; Harbaugh v. Water Co., 109 Cal. 70, 41 Pac. 792; Melde v. Reynolds (Cal.) 52 Pac. 491. It is for this reason that we more readily listen to an appeal from an order refusing to set aside a default than where the motion has been granted, since in such case the defendant may be deprived of a substantial right, whereas it may be assumed, if nothing to the contrary is shown, that the plaintiff will be able at any time to establish his cause of action. If, for any reason, he will be unable to do so, that fact should be made to appear; but, if he is merely subjected to delay or inconvenience by having the default set aside, he can be compensated therefor by the terms which the court will impose as the condition of granting the motion.

In the present case the court was satisfied from the evidence presented to it that the neglect of the defendants was excusable, and we see no reason for questioning its conclusion in that respect. When this fact had been determined by the court, it was its duty to grant the motion upon such terms as it should deem to be just. The delay in making the application after the judgment had been rendered was a matter to be considered by that court in determining whether to grant the relief, and the terms which it imposed as a condition of granting the motion must, in the absence of any contrary showing, be beld to be ample compensation to the plaintiff. It does not appear in the present case

that the plaintiff will be materially, if at all, injured by the delay. He seeks by the action an injunction against the defendants for doing certain acts, and at the commencement of the action obtained a preliminary injunction against them. The judgment obtained by him, and the writ of injunction issued thereon, had the effect merely to make permanent the previous restraining order; and the preliminary injunction is not impaired, nor are the defendants released from its effect, by setting aside the final judgment. The order is affirmed.

HAWK v. BARTON. (Sac. 736.) (Supreme Court of California. Dec. 14, 1900.) LIMITATIONS OF ACTIONS-ACTION ON AGREEMENT TO PAY JUDGMENT.

1. An action in 1896, on an agreement in 1893 to pay a certain judgment recovered in 1890, is not barred by the five-years limitations prescribed by Code Civ. Proc. § 336, providing that action on a judgment must be commenced within five years, since such action rests on the agreement, and not on the judgment.

2. Where a third person has agreed with a judgment debtor to pay the judgment, and the creditor holds both the judgment and the agreement, he is not bound to proceed first against the judgment debtor, but may sue on the agreement, as the latter is not merely a contract of indemnity.

Commissioners' decision.

Department 1. Appeal from superior court, Sacramento county; Matt F. Johnson, Judge.

Action by E. L. Hawk against O. L. Barton. From a judgment for defendant, plaintiff appeals. Reversed.

White & Seymour, for appellant. A. J. Bruner, for respondent.

De

CHIPMAN, C. Action on a contract. fendant demurred to the complaint for insufficiency of facts, and also for the reason that the action is barred by section 336, Code Civ. Proc. Defendant had judgment, from which plaintiff appeals. The complaint alleges that on May 12, 1890, one Matthew Lennox obtained a deficiency judgment for the sum of $628.66, arising out of a foreclosure suit, against one W. P. Harlow, and that the said judgment is unsatisfied, unpaid, and unreleased; that on May 16, 1893, defendant herein entered into a written contract with Harlow, which recites that defendant on December 12, 1892, had agreed to purchase a certain mine known as the "Harlow Mine," situated in Placer county, for the consideration of $15,000, and that since said contract of purchase, to wit, on said May 16, 1893, Harlow had delivered to defendant a deed to said mine, duly executed and acknowledged. The contract then reads: "Now, as part of the consideration for said deed, the undersigned

of extreme cruelty, and the judgment was correct. The judgment is affirmed.

We concur: GAROUTTE, J.; VAN DYKE, J.

(130 Cal. 639)

NAPHTALY et al. v. ROVEGNO et al. (8. F. 1,654.)1

(Supreme Court of California. Dec. 14, 1900.) JURY-COURT RULES-COMPLIANCE.

Where a party fails to comply with a rule of the trial court requiring a party demanding a jury to deposit the fees necessary therefor before the commencement of the trial, the denial of a jury trial is not error.

Department 2. Appeal from superior court, city and county of San Francisco; William R. Daingerfield, Judge.

Action by Joseph Naphtaly and another against Stefano Rovegno and others. Judgment for plaintiffs, and from an order denying a motion for a new trial certain defendants appeal. Affirmed.

James A. Devoto, for appellants. Naphtaly, Freidenrich & Ackerman, for respondents.

MCFARLAND, J. This is an action for a partition of certain described land. The defendants Rosa Rovegno and Jiacomo Rovegno appeal from an order denying their motions for a new trial. The only point which they insist on for a reversal of the order is that the court below erred in denying their demand for a jury. Whether or not certain issues in the case were of such a character as to give to appellants the general right to have them tried before a jury is a question not necessary to be here determined; for we think that the court, for specific reasons hereinafter mentioned, did not err in refusing the demand. The case was tried on the 20th of October, 1896, but it had been on the trial calendar several weeks prior to that time, marked as a "court" case, as distinguished from a "jury" case, in accordance with the custom of the court. This fact was well known to the parties, and appellants never asked to have it changed from "court" to "jury," and had not demanded a jury until the said 30th of October. On the latter day, when the case came on regularly to be tried, one of the defendants (Stefano Rovegno) moved for a continuance, and, the motion having been denied, demanded a jury, and the demand was denied. Then these appellants, who had not joined in the motion for a continuance, also demanded a jury, and their demand was refused. On September 20th the case had been called for trial, and appellants had answered "Ready" without any intimation that they desired a jury; but, owing to the number of cases before it on the calendar, it was not reached until October 20th, at which time there was no jury in attendance. The record at this stage merely shows the naked 1 For opinion on rehearing, see 63 Pac. 621.

facts that appellants made a demand for a jury, and that the court denied it. Nothing further appears. But in another part of the record it is shown that there was a rule of court providing that "a party demanding a jury shall before the commencement of the trial deposit with the clerk of the court the fees necessary therefor," specifying the amount; and appellants did not make nor offer to make such deposit. In Adams v. Crawford, 116 Cal. 495, 48 Pac. 488, it was held that such a rule is reasonable, and must be complied with. Under these circumstances it does not appear that the court erred in denying the demand for a jury, and such denial does not, therefore, warrant a new trial. The order appealed from is affirmed.

(6 Cal. Unrep. 600) PEOPLE. MACHADO. (Cr. 669.) (Supreme Court of California. Dec. 18, 1900.) LARCENY-INDICTMENT-EVIDENCE-HEARSAY -IMPEACHMENT-INSTRUCTION.

1. An indictment sufficiently describes the stolen property as "one cow, the same being the property then and there of H."

2. In a criminal case, refusal to charge that the jury have a right to consider that innocent men have been convicted, and to consider the danger of convicting an innocent man in weighing the evidence whether there is reasonable doubt as to his guilt, is proper.

3. In a prosecution for larceny of a cow a witness had testified to finding on the premises of accused a "slunk" calf,-that is, one that had been taken from its mother, and that it had been taken from the stolen cow, to which no objection nor motion to strike out was made. Held, that a question asking for the appearance of the calf as to when it had been taken from its mother, and his answer giving the facts on which his conclusion was based, were not objectionable as assuming that the calf had been taken from "a" cow; not "the" cow,-that is, from the stolen cow.

4. Where a witness, in a prosecution for the larceny of a cow, had testified in reference to a hide found on the premises of accused, but had not testified that any part of a brand on it was indistinguishable, a question, on crossexamination, asking what part of the brand was indistinguishable, was properly excluded.

5. A question to a witness, "Now, when you went to the butcher shop or slaughter house for the first time, you didn't go in?" was properly excluded for uncertainty, as it could not be understood whether it referred to the butcher shop or the slaughter house.

6. Where, in a prosecution for the larceny of a cow, a witness testified, without objection, to the finding of the carcasses of two calves in a certain locality, a question calling for their condition, and the answer to the effect that they were very much decomposed, which was favorable to accused as showing that they could not have come from the stolen cow, were properly admitted.

7. Admission of testimony as to statements of a third person to one accused of a crime, though not accompanied with proof of the con duct of accused, was not error, where accused. did not move to strike it out.

8. In a larceny prosecution, a witness testifying that the stolen property belonged to one person cannot be impeached by showing that in another case he had testified that it belonged to another.

9. In a criminal case, a question of one witness as to declarations of another, who was not himself questioned in relation thereto, was properly stricken out.

Commissioners' decision. Department 1. Appeal from superior court, San Luis Obispo county; E. P. Unangst, Judge.

John Machado was convicted of grand larceny, and he appeals. Affirmed.

Grave & Graves, for appellant. Atty. Gen. Ford, for respondent.

SMITH, C. The defendant was indicted with another for the crime of grand larceny. The property stolen is described as "one cow, the same being the property then and there of Hathaway and Branch," etc. The indictment was demurred to on the ground of the insufficiency of this description. The description, I think, was sufficiently certain. 12 Enc. Pl. & Prac. pp. 977, 983, et seq.; People v. Littlefield, 5 Cal. 355, affirmed in People v. Ah Woo, 28 Cal. 211; People v. Stanford, 64 Cal. 27, 28 Pac. 106.

It is claimed the court erred in refusing to give the following instruction: "The jury have a right to consider that innocent men have been convicted, and to consider the danger of convicting an innocent man in weighing the evidence to determine whether there is reasonable doubt as to defendant's guilt." The instruction is substantially similar to an instruction refused in People v. Durrant, 116 Cal. 185, 222. 48 Pac. 75, and comes within the ruling in that case.

Objections are made to numerous rulings of the court on the evidence, but none of them are well taken. The witness Avila had testified, without objection, as to finding on the premises of defendant what he called "a 'slunk' calf, that is, a calf that had been taken from the cow,"-and was asked, "What was the appearance of the calf, when you saw it, as to when it had been taken from the cow?" The question, and also the answer, which simply gave the facts on which the witness' conclusion was based, were proper. It may be added that the objection was that the question assumed that the calf "had been taken from 'a' cow"; not "taken from 'the' cow,"-i. e. from "the stolen cow," as stated in the brief. The witness had testified some time before that the calf was taken from the stolen cow, giving his reasons; but no objection was made, nor was there any motion to strike out. The question to Avila, referring to the brand on the hide found on defendant's premises, and asking, in effect, which part of it was indistinguishable, was properly excluded. The witness had not testified that any part of it was indistinguishable. So, also, the question, "Now, when you went to the butcher shop or slaughter house for the first time, you didn't go in?" was properly excluded for uncertainty; i. e. because it could not be understood whether it referred to the butcher shop or the slaughter house. The rulings of the court with reference to the testimony of

the witness Cook were also unobjectionable. There was no objection to his testimony that he had found the carcasses of two calves in the creek south of the slaughter house. That evidence had been given without objection. The objection was to the question, "What was the condition of those two carcasses?" and the answer, which was that "they were very much decomposed," was favorable to the defendant as showing that they could not have come from the stolen cow. Nor was it error to allow the question as to what was said by Martinez to the defendant on the occasion referred to in the question. The rule is that such evidence is proper, but must be accompanied with proof of the conduct of the accused, in default of which it may be stricken out. People v. Chin Hane, 108 Cal. 597, 41 Pac. 697; People v. Mallon, 103 Cal. 513, 37 Pac. 512. The prosecution did not offer the additional proof, but there was no motion to strike out. Indeed, the answer could not have had any influence on the minds of the jury, and, if erroneous, would have been harmless. The questions asked this witness with a view of impeaching him were inadmissible. Most of them seem to have been designed to bring out the fact that in a criminal complaint made by the witness against one Espinoza he had sworn that the cow in question was the property of Avila. But the witness had not testified otherwise in this case. The evidence was clearly inadmissible. The court did not err in striking out the testimony of Silvers as to declarations of Avila. Avila had not been questioned as to such declaration. The same statement was afterwards repeated by the witness without objection on the part of the prosecution. The question of the prosecution to the same witness, objected to by defendant, was not improper in cross-examination, and the answer could not possibly have affected the result one way or the other. 1 advise that the judgment be affirmed.

DER FOR IMMEDIATE POSSESSION. 1. As by Code Civ. Proc. § 462, new matter contained in the answer is deemed controverted by plaintiff, it presents an issue substantially the same as would be presented by an answer to a cross complaint alleging the same matter; and in such a case, where findings were waived in a trial to the court, the presumption being that it found on all matters of fact in issue necessary to support the judgment for plaintiff, and hence found against defendant as to the new matter alleged in the answer, error, if any, in sustaining a demurrer to the cross