to all the waters of the creek, and had not diverted or acquired any right to such waters other than to a quantity sufficient to supply the pipe.

2. SAME DIVISION OF Water.

Plaintiffs and defendant owned adjoining land. A creek rose from a spring on defendant's land and flowed through the same and through about three-fourths of the length of plaintiffs' land, when it was absorbed. Defendant had never diverted more than one miners' inch of the water, and his land contained only three acres and a fraction that was irrigable and adapted to cultivation by means of such water, while plaintiffs' land contained about 2.000 acres, 50 of which was adapted to cultivation and susceptible of irrigation from the creek. Held, that a decree vesting in defendant sufficient water to supply his pipe and dividing the balance of the flow so that defendant should have the entire flow for one day out of every 21 days, and that plaintiffs should have the balance, was a proper division.

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

Action by Soledad Gutierrez and another, as executors of the will of Benigno Gutierrez, deceased, and another, against Henry Wege. From a part of the judgment in favor of plaintiffs, defendant appeals. Affirmed.

See 79 Pac. 449.

II. L. Poplin, for appellant. G. H. Gould and W. R. Edwards, for respondents.

MCFARLAND, J. This action was brought to quiet title to the waters of a small stream called "Casitas creek," and to have the proportionate rights of the parties to said waters definitely determined. The court made findings and rendered a judgment, and from a part of this judgment defendant appeals.

No errors of law are assigned, and the only grounds for a reversal are that certain findings of fact are not supported by the evidence. Each of the parties is the owner of a tract of land riparian to said creek; defendant's land lying immediately above and adjoining the land of plaintiffs. The creek rises in a spring on defendant's laud, and flows through his land onto the land of plaintiffs and runs through plaintiffs' land about three-fourths of its length, when it is all finally absorbed by the soil. Defendant having claimed all the waters of the spring and creek and threatened to divert the same unless plaintiffs pay him certain money, plaintiffs commenced this action for an injunction against the infringement of their riparian rights and for a decree settling the proportionate ownership of the parties of the waters of the creek, and also prohibiting defendant from maintaining a certain nuisance, namely. a manure pile. in the creek. Defendant set up his right by prescription to all the waters of the creek, claiming that for more than five years before the commencement of the action he had continuously, notoriously, and adversely to plaintiffs and all the world diverted all of the said water onto his own land and used it there, and prevented any of it from flowing down through the lands of plaintiffs. The

court found that defendant had so diverted one miners' inch of said water through an iron pipe, and had acquired a right by prescription to said one inch of water, and also found that defendant had not diverted or acquired any right to the waters of said creek other than the said one inch. Defendant contends that this finding, except as to said one inch, is unsupported by the evidence, and that the evidence shows that he had adversely diverted all of the water of said creek as claimed by him. This contention of defendant as to the finding of his claim to all the water by prescription substantially includes all of his case on appeal; for it will be found on examination that his other points as to findings not being sustained by the evidence all point to and are based on the contention that the finding as to prescription is unwarranted. But, in our opinion, there was ample evidence to support the finding that there was no adverse diversion of the water of the creek other than the one inch diverted through the iron pipe. There was, no doubt, some conflicting evidence on this point; but there was material testimony that notwithstanding the diversion through the pipe there was always water flowing down the stream onto plaintiffs' land.

Plaintiffs' land contains about 2,000 acres, and the court found that 50 acres of it was adapted to cultivation and was susceptible of irrigation from said creek, and that only 3 acres and a fraction of defendant's land was adapted to cultivation and irrigable from said creek; and it found that a fair proportionate division of the water of the creek, other than the said 1 inch, for irrigation, would give to plaintiffs the entire flow of the creek, other than the 1 inch, for 20 days out of every 21 days; and to defendant, in addition to said 1 inch, the entire flow of the creek for 1 day out of every 21 days; and judgment was rendered in accordance with this finding. Defendant excepts to this finling as not supported by the evidence; but it is not specifically contended that this would not be a fair division, provided all the water other than the 1 inch is to be divided between the parties; and defendant, in arguing this point, reverts to his contention that defendant is entitled to all the water by prescription. We think that the evidence fairly warrants the division of the water decreed by the judgment. The other points made by defendant as to the title to the water of the creek are covered by what has already been said.

As to the nuisance, we think that the evidence amply warrants the findings of the court as to that matter and justifies the judgment.

The part of the judgment appealed from is affirmed.

We concur: SLOSS, J.; SHAW, J.; ANGELLOTTI, J.; LORIGAN, J.; HENSHAW, J.

(151 Cal. 340)

Ex parte COLLINS. (Cr. 1,374.) (Supreme Court of California. June 12, 1907.) HABEAS CORPUS-APPEAL AND ERROR-BAIL.

When, after a habeas corpus hearing, a prisoner has been remanded to the custody whence he came, there is ordinarily no proceeding to be stayed pending a review of that order, since he is not thereafter held by the order of remand, but by the warrant or other process upon which he was held when the writ of habeas corpus was issued, and the power to admit him to bail belongs exclusively to such officer. if any, as had the power to admit him to bail independent of habeas corpus proceeding, and he must make his application for bail in the usual manner as provided by law.

In Bank. Application by George D. Collins for a writ of habeas corpus.. Petitioner having been allowed a writ of error to the United States Supreme Court to review an order (90 Pac. 827) remanding him to custody, he requests that the writ operate as a supersedeas. Refused.

George D. Collins, in pro. per. Wm. Hoff Cook and Hiram T. Johnson, for respondent.

BEATTY, C. J. Having allowed the prisoner a writ of error to enable him to secure a review of the record in this proceeding by the Supreme Court of the United States, and having been requested to order that the writ operate as a supersedeas, I desire to state my reason for specially limiting the operation of the order. In certain cases of recent origin in this state in which prisoners in custody under process of the superior court have been remanded after a hearing upon habeas corpus in another court, or before a different judge, upon the ground that the imprisonment was lawful, the judge making the order of remand has allowed a writ of error and ordered a supersedeas which he has construed as empowering him to admit the prisoner to bail. The order which I make in this case is not to be understood by any judge to whom an application for bail may be made as having such effect. When, after a hearing upon his petition for a writ of habeas corpus, a prisoner has been remanded to the custody from whence he came, there is ordinarily no proceeding to be stayed pending a review of that order. The prisoner is not thereafter held by virtue of the order of remand, but by virtue of the warrant or other process upon which he was held at the time the writ of habeas corpus was issued, and the power to admit him to bail belongs exclusively to such officer, if any, as had the power to admit him to bail independent of the habeas corpus proceeding, and he must make his application for bail in the usual manner as provided by the laws of this state.

Cal. App. 85)

EDDY V. HOUGHTON et al. (Civ. 363.) (Court of Appeal, Second District, California. July 8, 1907.)

1. VENUE-CHANGE-AFFIDAVITS-ANSWER. On an application for a change of venue, the affidavit and answer are only available as

affecting the question of residence, and cannot be considered in determining the nature of the cause of action pleaded, which must be found from the complaint alone.

2. SAME TRANSITORY ACTION.

An action to compel a depositary of stock in a mining corporation and the pledgee to deliver the same to plaintiff was a transitory action, and not local as involving a controversy over real property.

3. CORPORATIONS-VENUE-RIGHT TO CHANGE. Under Const. art. 12, § 16, providing that a corporation may be sued in the county where the contract is made or to be performed, where the obligation or liability arises or breach occurs, or in the county where the principal place of business of the corporation is situated, subject to the power of the court to change the place of trial as in other cases, corporation defendants have no absolute right to a change of venue on account of residence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12. Corporations, § 1943.]

4. VENUE-CHANGE-RIGHT OF DEFENDANT. A defendant against whom no cause of action is stated is not entitled to a change of

venue.

5. SAME-AFFIDAVIT OF MERITS.

An affidavit of merits in support of an application for a change of venue, alleging that the afliant had fully and fairly stated "the as distinguished from the "facts of the ," to his counsel, and had been advised that there was a good defense to the action on the merits, was sufficient.

(Ed. Note.--For cases in point, see Cent. Dig. vol. 48, Venue, § 113.]

Appeal from Superior Court, Los Angeles; County, N. P. Conrey, Judge.

Action by E. C. Eddy against F. T. Houghton and others. From an order denying defendants' motion for a change of venue, they appeal. Reversed.

J. S. Larew and R. B. Stolder, for appellants. Chas. S. McKelvey, for respondent Eddy. Hugh T. Gordon, for respondent Tennessee-California Gold Mining Company.

TAGGART, J. Appeal from an order denying motion for change of venue.

The action was begun in Los Angeles county and the application for change of place of trial was made by the defendants F. T. Houghton and Merced Merced Security Savings Bank. It was based upon the grounds that the cause of action related to a controversy over real property situated in the county of Mariposa, and the real defendant and party in interest (Houghton) was a resident of Mariposa county. Two demands for a change appear in the record, one by the defendant Merced Security Savings Bank, and the other by the defendant Houghton, and the latter files an affidavit setting out that he is the only real party in interest as defendant in said action, and that all the other persons named as defendants are mere nominal parties. The defendant Tennessee-California Gold Mining Company, which joins the plaintiff in resisting the motion, files a verified answer, presenting its interest in the subject-matter of the action brought by plaintiff.

In determining the cause of action to be

tried neither the affidavit nor the answer can be looked to. The effect of the complaint in this respect cannot be varied by either. Only as affecting the question of residence will they be considered. Quint v. Dimond, 135 Cal. 572, 67 Pac. 1034. The only cause of action attempted to be stated in favor of plaintiff is one against the defendants Merced Security Savings Bank and Houghton, and is to compel the bank to deliver to plaintiff certain shares of stock of the defendant corporation, Tennessee-California Gold Mining Company, in which Houghton is interested. The relations of the parties to the transactions involved in the action, as disclosed by the complaint, are: The plaintiff and defendant Guenther were pledgors of the shares of stock-the bank the pledge holder and the defendant Houghton the pledgee. There is no real property involved in the said cause of action attempted to be stated in favor of plaintiff. The extensive allegations of probative facts anticipating the bank's reason for refusing to deliver the stock constitute no part of the statement of a cause of action which the court can consider on this motion.

Neither of the corporation defendants has an absolute right under the constitutional provision (section 16, art. 12) to have the action removed on account of its place of residence. Trezevant v. Strong Co., 102 Cal. 49, 36 Pac. 395. The principal place of business of the Tennessee-California Gold Mining Company is stated in the complaint to be at Los Angeles, Cal., but the complaint states no cause of action in favor of plaintiff to which that corporation is a proper or necessary defendant. The defendant Guenther passed out of consideration by the stipulation of the parties in open court. This leaves but the two moving defendants to be considered. The bank is a resident of Merced county, but its demand for change is to Mariposa county, and may be considered as a consent to the granting of the motion of the defendant Houghton, whose demand on the ground of his place of residence is for a change to Mariposa county. The mining company being neither a necessary nor proper party to the determination of the cause of action therein stated in favor of plaintiff, the defendant Houghton's motion should have been granted, if there was a sufficient showing on the merits. McKenzie v. Barling, 101 Cal. 459, 36 Pac. 8. We think there was.

The contention of respondent that the affidavit of merits made by the moving party is insufficient cannot be sustained. The affidavit is substantially the same as the one held good in McSherry v. Penn. Co., 97 Cal. 642, 32 Pac. 711, except that in the case cited the affiant avers that he "has fully and fairly stated the facts of the case" to his counsel, while in the case at bar the statement is that he "has fully and fairly stated the case" to his counsel. There is no There is no

An information charging that defendant passed a fictitious bill in writing on a bank not in existence, with intent to cheat and defraud the complaining witness, and alleging that defendant had knowledge of the character of the bill and of the nonexistence of the bank named therein at the time he passed such bill, sufficiently charged the offense defined by Pen. Code, § 476. prohibiting the passage of a bank bill of a bank having no existence, with intent to defraud.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, False Pretenses, $$ 34–36.]

2. SAME-FICTITIOUS BILL-STATUTES.

Defendant passed an alleged $20 bank bill to complainant in payment of room rent. The bill consisted of two bills pasted together; the exposed sides being similar to each other. Both bills were of the denomination of $20 and purported to be issued by a New Jersey bank which had had no existence since 1865. One of the exposed faces bore the "No. 31,777" and the date 1864. and the other showed the number blank. the date incomplete, the signature by the president, but a blank for the signature of the cashier. Held that, though such bills were genuine in so far as they were complete, they were nevertheless false and fictitious, within Pen. Code, § 476, prohibiting the passing of a fictitious bank bill of a bank not in existence, with intent to cheat and defraud.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, False Pretenses, § 4.]

3. CRIMINAL LAW-OTHER OFFENSES-SYSTEM. In a prosecution of defendant for passing a fictitious bank bill at Long Beach on October 28, 1905, in payment for room rent, evidence was also offered of a similar offense alleged to have been committed by him in San Pedro on the 3d day of November following. Defendant admitted being in San Pedro on the day of the alleged later offense, but tried to establish an alibi as to the principal offense. Held, that evidence of the subsequent offense was admissible to identify defendant as the person who passed the fictitious bill at Long Beach, and to show that defendant was operating a system of imposition and fraud.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 833, 834.]

4. FALSE PRETENSES-STATUTES-AMENDMENT. Pen. Code, § 470, as amended by Acts 1905, relating to the offense of signing the name of a fictitious person with intent to defraud, had no application to section 476, prohibiting the passing of a fictitious bank note of a bank not in existence.

Appeal from Superior Court, Los Angeles County; B. N. Smith, Judge.

Steven Harben was convicted of passing a fictitious bank bill with knowledge of its character, and he appeals. Affirmed.

E. L. Hutchinson, Henry H. Roser, and H. H. Appel, for appellant. U. S. Webb, Atty. Gen., and E. E. Selph, Deputy Atty. Gen., for the People.

TAGGART, J. This is an appeal from a judgment of conviction, and from an order denying defendant's motion for a new trial, upon a charge of passing a fictitious bank bill in violation of the provisions of section 476 of the Penal Code. The information charges that the defendant on the 28th day of October, 1905, passed a certain fictitious bank note of a bank or corporation having no existence at the time, and charges the defendant with knowledge of the false and fictitious character of the bill and of the nonexistence of the bank named in the bill at the time of the passing of the bill.

The note or bill is double; that is, it consists of two bills pasted together, the exposed sides being similar to each other, and the reverse side of each bill being entirely concealed from view. Both bills are of the denomination of $20, and purport to have been issued by the State Bank at New Brunswick, state of New Jersey. One of the exposed faces bears the "No. 31,777" and the date 1864. The other shows the number blank (No. —

and the date (18) incomplete. Both are signed "John B. Hin, Prest.," but the space preceding the word "Cash'r" is blank (————————, Cash'r). The bank named in the bill closed its doors, or, as one witness puts it, "busted, about 1864 or 1865." It has had no existence, either as a bank of issue or otherwise, since 1865. The bills constituting the "bill" are worthless, and have had no value since the date last mentioned, except a nominal one given them by curio dealers. The absence of the name of the cashier indicates that they were never regularly issued, and never became current bank notes, or possessed any value as such. These two bills, so made into one, were on the 28th day of October, 1905, tendered by defendant to the complaining witness as $20 in lawful money. in payment of the sum of $3, being in part payment for rent of a room in the lodging house kept by such witness at Long Beach. She accepted the bill as such payment, and returned to defendant $17 in good money in change. Defendant immediately left, and said witness did not see him again until 10 days later, when he was under arrest in San Pedro.

change the sum of $9.90 lawful money. The ruling of the trial court in admitting the latter bills to show guilty knowledge and intent is assigned as error.

The record discloses no attack upon the information, either by demurrer or motion in arrest of judgment. The appeal presents three matters for consideration: Does the information state a public offense? Is the evidence introduced sufficient to sustain a verdict of guilty? And did the court err in admitting in evidence the bills passed by defendant in San Pedro, and the testimony in connection therewith introduced to show that he did pass them and to show the character of the bills?

Every essential element of the offense for which punishment is provided by section 476 of the Penal Code is set forth in the information. It charges the defendant with passing a fictitious bill in writing of a bank not in existence, with the intent to cheat and defraud the complaining witness, and alleges that defendant had knowledge of the character of the bill and of the nonexistence of the bank named in the bill at the time he passed the latter. This is sufficient.

Defendant contends that there is no evidence to show that the bills are "fictitious," but that, on the contrary, all the evidence in this respect tends to show that they were "genuine" in so far as they were complete, and that the bank was in existence at the time they bear date. Again, it is urged that, the bill or bills not having been properly executed and this appearing upon the face or faces thereof, it or they could not be the means of committing a fraud. Webster defines "fictitious" as "feigned; imaginary; not real; counterfeit; false; not genuine." If it were the duty of the court to divorce these bills from the circumstances under which they were passed by defendant, separate them from each other, and restore them to the condition in which they probably were when they left the bank whose name they bear, it might find them to have been genuine at that time; but as prepared by defendant, or some one else, with the evident purpose of concealing their real character, and, as passed, they were "not genuine," but were "false," and instruments of fraud and deceit, and the jury were justified by the evidence in so finding.

timony shows that in connection with the latter bills defendant received in return as

It is not material to the question that the bills were not complete and legally issued. As appears from language quoted by the Supreme Court with approval in People v. Munroe, 100 Cal. 667, 35 Pac. 327, 24 L. R. A. 33. 38 Am. St. Rep. 323: "It is a matter of perfect indifference whether it possesses or not the legal requisites of a bill of exchange, or an order for the payment of money or the delivery of property. The question is wheth

fraud those who may act upon it as genuine or the person in whose name it is forged. It

is not essential that the person in whose name it purports to be made should have the legal capacity to make it, nor that the person to whom it is directed should be bound to act upon it, if genuine, or have a remedy over." The language here used was in relation to forged paper, which might injure either the person imposed upon by its passage, or the person whose name was forged. By the passing or utterance of a bank note of a nonexistent bank, no one would be injured except the person receiving it as a thing of value and t se to whom he might deliver it in the same manner. No question of the liability of the person whose signature is attached can arise. It becomes unimportant to know who signed it, or whether or not it was signed at all. As pasted together, the two bills were in effect a simulation of a current bank note, and intended to deceive. They accomplished this purpose with the complaining witness. Being false, fictitious, and "not genuine," the only test of whether or not the passage of this "bill" was a crime. was the intent to defraud on the part of the defendant.

The practice of permitting the introduction of evidence to prove other or similar offenses to show knowledge, intent, design, or system in cases of conspiracy, counterfeiting and forgery, false pretenses or representations, receiving stolen goods, embezzlement, etc., has long been recognized by the criminal courts. Roscoe's Crim. Ev. (6th Ed.) p. 88; Wharton's Crim. Ev. (8th Ed.) § 39 et seq.; People v. Gray, 66 Cal. 275, 5 Pac. 240, and cases cited. Some confusion exists in the cases as to the principle upon which such evidence has been admitted. A recent treatise on Evidence (Wigmore on Evidence), by a classification of the cases on the basis of the purposes which the evidence is intended to serve, has dispelled some of the fog which envelops the declarations of the courts on the subject. A distinction holding that facts admitted to show knowledge should contain an element of notice or warning, while those to establish intent need only to negative inadvertence or other innocent explanation of the act, appears at first sight purely academic; but in the consideration of apparently conflicting opinions, by ascertaining the viewpoint of the court expressing the opinion, it greatly aids in reducing the apparent inharmony among the cases.

The knowledge to be considered here is that which refers to the character of the bill charged by the information to have been fraudulently uttered. In order that the utterance of another fraudulent bill should be evidence of such knowledge on the part of the defendant, it must have been uttered prior to the time of the passing of the bill in question. The intent with which the bill was passed, as distinguished from the knowledge of the passer, however, opens a broader field. It includes the knowledge of the character of the bill and also the pur

The

pose with which the act was done. While the subsequent utterance could not establish notice at the prior date, it might, nevertheless, throw some light upon the intent and purpose which actuated the utterer at the time of the passing of the first bill. same distinction may also be drawn between the facts constituting design and those establishing system. A design implies a preconceived plan or preparation, while system may be established by any facts showing a general intent coupled with similarity of method or arrangement. While a preconceived plan could not well be inferred from subsequent events, a general system might be deduced from a line of conduct preceding or following the principal event. A system being established, it would matter little whether the act complained of was the first or last individual manifestation of the general plan that could be shown. It cannot be denied that a repetition of utterances of false and fictitious notes tends to negative innocence in particular cases. Mr. Wigmore says the principle applicable to such evidence proceeds upon the doctrine of chances. As to remoteness of time of the utterances sought to be introduced and the similarity of the notes or bills uttered on the several occasions, the rulings exhibit views of all degrees of liberality and narrowness. Wigmore on Ev. § 310.

Conceding that the principle upon which this evidence is introduced is the doctrine of chances or probabilities, the number of the utterances, their remoteness in time, and the similarity of the instruments become matters affecting the weight, rather than the admissibility, of the evidence. In such cases, if the evidence has any application under the rule, whether or not it has sufficient weight to entitle it to be submitted to the jury is a question for the determination of the trial court. People v. Frank, 28 Cal. 507, 518. The sameness of the peculiar, if not unique, method of preparation of the two sets of bills, and the similarity of the manner of realizing upon them, warranted the court in permitting the jury to determine from the two transactions whether or not the defendant was operating by a system of imposition and fraud, and to draw therefrom such inference of intent and knowledge as the facts justified.

In the consideration of the case the fact that the record discloses that defendant sought to establish an alibi as to the principal offense, and to prove that he was not in Long Beach on the 28th of October, 1905, while he admitted being in San Pedro on the 3d day of November, has not been overlooked. Under such circumstances there is no doubt that the admission of the evidence as to the San Pedro transaction tended to establish the identity of the defendant as the man who passed the fictitious bill in Long Beach. Conceding, but not deciding, that it was not admissible for that purpose, it was