and that said action was still pending, within the meaning of the provisions of the foregoing section, when this cause was tried in the court below, which the record shows was commenced on March 12, 1891,-more than four months before the time for appeal had passed. It therefore follows that the court erred in admitting in evidence the judgment roll in the former action, against plaintiff's objection, in bar of plaintiff's right to recover in this action. Harris v. Barnhart, (Cal.) 32 Pac. Rep. 589. Let the former judgment (No. 14,705) be affirmed, and the latter judgment (No. 14,704) be reversed, and the cause remanded for a new trial. HARRISON, J. I concur in the judgment. In my opinion, however, the error of the court below was not in admitting the judgment roll in evidence, but in determining that it constituted a bar to the plaintiff's right of recovery. The evidence offeredthe judgment roll-was relevant to the issue presented by the answer, and of a character competent to establish that issue. The objection that it was not sufficient in itself for that purpose went to its weight, and not to its admissibility. It was a judgment that had been rendered between the same parties upon the same cause of action, and by a court of competent jurisdiction; and unless it is to be held that a judgment is not, under any circumstances, admissible in evidence until the time for an appeal therefrom has expired, the court properly received it. Section 1049, Code Civil Proc., does not purport to prescribe a rule of evidence, but merely to determine the condition of an action after judgment has been rendered, and, inferentially, the effect of the judgment; and there are many cases in which a judgment is admissible in evidence at any time after its entry. The court could not anticipate that this was all the evidence to be given upon that issue, and thus exclude it from being considered. It might be shown that there had already been a final determination upon appeal, or that the parties had consented that there should be no appeal. When, however, upon the submission of the case, it appeared to the court that a year had not elapsed since the entry of the judg ment, and no other evidence upon that issue had been introduced, the court should have held that it did not constitute a bar, for the reason that under the provisions of section 1049, Id., the action was deemed to be still pending. PATERSON, J. I concur in the views of Mr. Justice HARRISON. GAROUTTE, J. I concur. BEATTY, C. J. I dissent. I think the judgment in No. 14,705 is erroneous, and should be reversed. In the other case, (No. 14,704,) I concur in the judgment of reversal. (99 Cal. 52) BERGIN v. HAIGHT et al. (No. 14,993.) (Supreme Court of California. July 21, 1893.) ADMINISTRATOR'S SALE-WHEN SET ASIDEFRAUD. 1. Where a mere volunteer institutes probate proceedings on an estate in which he has no interest, for the ostensible purpose of paying the debts of the estate, but in reality to procure the sale of part of the estate to himself, and, by securing the appointment of his own agent as administrator, controls the proceeding, and accomplishes his purpose, there is such fraud as will entitle an innocent purchaser from heirs of the decedent to have the sale, and the decree confirmatory thereof, set aside. 2. An action to quiet the title of the property, instituted for such a purpose, is not a collateral attack on the decree confirming the sale. In bank. Appeal from superior court, city and county of San Francisco; Charles W. Slack, Judge. Action by Thomas I. Bergin against George W. Haight and others. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Affirmed. Geo. W. Haight and Edward W. R. Taylor, for appellants. Sullivan & Sullivan, for respondent. PER CURIAM. Action to quiet the alleged title of plaintiff to five undivided twelfth parts of a lot of land situate in the city of San Francisco. The judgment of the trial court was in favor of the plaintiff, and the defendants appeal from the judgment, and from an order denying their motion for a new trial. The cause was tried by the court, and findings were expressly waived. It appears that Francisco Soto, who died intestate in this state in 1856, was seised of the lot in question at the time of his death, and that he left surviving him five sisters and a brother, who were his only heirs at law. In March, 1866, two of these sisters conveyed to plaintiff an undivided half of all their right, title, and interest in said lot, by deed of grant, bargain, and sale, which was duly recorded August 10, 1870. Thereafter, on April 7, 1868, three others of said heirs conveyed to plaintiff an undivided half part of all their right, title, and interest in said lot, by a like deed, which was also recorded on August 10, 1870; and it is admitted that, by virtue of these conveyances, plaintiff was the owner of an undivided five-twelfths of said lot at the time of the commencement of this action, unless he had been divested of his title thereto by an alleged sale of the lot, by order of the probate court, to James Gordon, under whom the defendant Haight claims title to the entire lot. It is alleged in the complaint, however, that the order of sale, and the confirmation thereof to Gordon, under whom defendant claims, were fraudulently obtained, by collusion of the administrator with Gordon and the defendant Haight; that the administrator was merely the passive and willing instrument of defendant Haight, by which the latter, in fact, administered upon the estate, and, through Gordon, became the purchaser of the property at his own sale thereof. The principal point made by appellants is that the evidence does not justify the finding of the fraud charged; but, after a careful consideration of the facts and circumstances of the case, we cannot say that they would not justify a finding that the defendant Haight procured the appointment of Sander, and employed the proceedings in probate for the purpose of securing the title in himself; that he, in fact, administered upon the estate, and, through Gordon, became a purchaser at his own sale. It would serve no useful purpose to detail the facts and circumstances upon which we think an implied finding, such as stated above, may be supported. The court below saw and heard the witnesses, and there being, in our judgment, a substantial conflict, upon material testimony, tending to establish or rebut the allegation of fraud, its decision is conclusive upon us. Upon the findings necessarily implied in the decision of the court below, we entertain no doubt as to the right of the plaintiff to the relief herein sought. A mere volunteer, who institutes proceedings in probate upon an estate in which he has no interest, and for the ostensible purpose of paying the debts of such estate, but in fact to procure a sale of a part of the estate to himself, and directs, controls, and manages the proceedings in probate successfully to that end, has no standing in a court of equity. Such a sale is voidable, and will be set aside at the instance of any one injured thereby. It is claimed by appellants that this is a collateral attack upon the orders of the probate court, and that since the record of the proceedings show that the court had acquired jurisdiction, and that the proceedings were upon their face regular, the order confirming the sale cannot be thus attacked. It is true the court did acquire jurisdiction to administer upon the estate, and to order and confirm the sale of the property; but it does not follow therefrom that this is a collateral attack. The attack is a direct attack upon the sale, on the ground of fraud, and as such is authorized by law. Van Fleet, Collat. Attack, pp. 4, 5, 15, and authorities cited. It is not every species of fraud, however, which may be the basis of an action to vacate an order or judgment. To be actionable, as stated by our chief justice in Pico v. Cohn, 91 Cal. 129, 25 Pac. Rep. 970, and 27 Pac. Rep. 537, it must be a "fraud extrinsic or collateral to the questions examined and determined in the action. Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit, or where an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed, corruptly sells out his client." The fraud herein relied upon falls within the principle illustrated by the example stated above, and certainly within the principle underlying many other cases. Jones v. Hanna, 81 Cal. 507, 22 Pac. Rep. SS3; Johnson v. Waters, 111 U. S. 667, 4 Sup. Ct. Rep. 619; Griffith v. Godey, 113 U. S. 93, 5 Sup. Ct. Rep. 383; Mayberry v. McClurg, 51 Mo. 256; Hardy v. Broaddus, 35 Tex. 668; Warner v. Blakeman, 43* N. Y. 487; Larue v. Friedman, 49 Cal. 278; Caldwell v. Caldwell, 45 Ohio St. 513, 15 N. E. Rep. 297. The plaintiff had only constructive notice of the administration, and proceedings to sell. Furthermore, there was nothing upon the face of the proceedings to indicate a fraudulent collusion between the administrator and his attorney. There was no opportunity to determine an issue of fraud in the probate court. The administrator was acting as trustee and agent for the owners of the property, whether such owners were heirs or assignees of heirs, and the defendant stood in the same confidential relation. Ex parte James, 8 Ves. 343; O'Dell v. Rogers, 44 Wis. 136-178; West v. Waddill, 33 Ark. 586; Phillips v. Benson, 82 Ala. 500, 2 South. Rep. 93; Hawley v. Cramer, 4 Cow. 718-733; Baker v. Humphrey, 101 U. S. 494. The judgment and order are affirmed. HARRISON, J., being disqualified, did not participate in the foregoing decision. (98 Cal. 675) McCOY v. VAN NESS. (No. 15,032.) (Supreme Court of California. July 14, 1893.) ACTION ON JUDGMENT-SUFFICIENCY OF EVIDENCE In an action on a judgment, service in the previous action is sufficiently shown, in the absence of any showing to the contrary, by recitals in the default and the judgment, contained in the judgment roll introduced in evidence, that "defendant was regularly served with process." Department 1. Appeal from superior court, Alameda County; W. E. Greene, Judge. Action by Josephine L. McCoy against Thomas C. Van Ness. From a judgment for plaintiff, defendant appeals. Affirmed. Horace G. Platt, for appellant. James L. Crittenden, for respondent. PATERSON, J. One Hardesty recovered a judgment against the defendant on October 28, 1885, for the sum of $17,548.19. The judgment was assigned by him to one McClung, and by the latter assigned to this plaintiff, who thereafter brought this action to recover the amount due on the judgment. The only point made by the appellant on this appeal is that the plaintiff failed to show at the trial that the summons in Hard esty v. Van Ness was served upon the defendant therein. There is no merit in this contention. The judgment roll in that case, which was introduced in evidence, contains the default entered by the clerk, the complaint, the summons, with the return thereon, and the judgment and certificate of the clerk thereto. Both the default and the judgment recite that the defendant therein was "regularly served with process." These recitals are sufficient of themselves, in the absence of any showing to the contrary; but, in addition to this evidence, the affidavit of service states that the summons attached to a copy of the complaint was personally served upon the defendant on the 14th day of August, 1885, and the defendant himself admitted that he had been served with a paper which purported to be a copy of the summons, and a paper which purported to be a copy of the complaint in that action, and that he could not deny that he was served by Mr. Richardson on the day stated in the affidavit of the latter, which is annexed to the judgment roll. Judgment and order affirmed. BANK OF BRITISH NORTH AMERICA v. 1. Though St. 1876, p. 729, provides that banking corporations shall publish in January and July of every year statements of their financial condition, yet, in view of the fact that the only penalty provided for failure to so publish is that no corporation can maintain an action "until" such statement has been published, a publication of a statement before the time named in the statute for the publication of the next statement is sufficient. 2. Though the statute provides for the publication of two statements,-one of the capital stock, and the other of the assets and liabilities, of the corporation,-the publication of the two statements as one document is sufficient, where the amount of the capital stock, and the actual condition and value of the assets and liabilities, are set out in the document. 3. Under a provision of the statute that the statement of a foreign corporation shall be verified by the agent or manager of such corporation residing in the state, a verification of the statement of a foreign corporation by its resident agent, that it was true to the best of his knowledge and belief, is not open to the objection that it was not made upon actual knowledge. 4. Under a provision of the statute that the published statement shall contain "the actual condition and value of the assets" of the corporation, a statement showing the amount of cash on hand and at bankers, the amount of cash at call and short notice, the amount of investments, the amount of bills receivable and other securities, and the value of the corporation's premises, is sufficient. 5. Under a provision that the published statement shall contain "the actual condition and value of the liabilities" of the corporation, a statement showing the amount of capital, the amount of reserve fund, the amount due depositors, the amount of circulation, the amount of bills payable and other liabilities, the amount of rebate, and the amount of undivided net profits, is sufficient. 6. Under a provision that the published statement shall set forth "where" the assets are situated, a statement reciting that part of the assets are in London, England, part in San Francisco, part in New York city, and part in Canada, without giving the amount of assets at the places named, is insufficient. Department 1. Appeal from superior court, city and county of San Francisco; W. T. Wallace, Judge. Action by the Bank of British North America against James Madison and others. From a judgment for plaintiff, defendants appeal. Reversed. Daniel Titus, for appellants. Smith & Pomeroy, for respondent. as HARRISON, J. This case involves principles similar to those presented in the Bank of British North America v. Alaska Imp. Co., 97 Cal.,, 31 Pac. Rep. 726. The plaintiff seeks herein to recover from the defendants, stockholders of the Alaska Improvement Company, their proportionate liability of the amount represented by the bills of exchange upon which the former action was brought. The defense thereto is the same as was presented in that action, and the question involved is whether the statements which the plaintiff had filed and published before the commencement of the present action sufficiently conform to the requirements of the act of April 1, 1876, (St. 1876, p. 729,) whose provisions were construed in the former case, and take the present case out of the rules there laid down. 1. The present action was commenced April 8, 1890, and the statement relied upon by the plaintiff was published and filed April 4, 1890, and it is objected that, as the act in question required the statement to be published and filed "in January and July of every year," it must be published and filed in those respective months, in order to relieve the plaintiff from the penalty prescribed by the statute. The statute does not, however, in terms, declare that any penalty shall be enforced against the corporation for a failure to publish and file the statements, or that any consequence shall result from its omission to do these acts within the designated months; and it must therefore be held that the naming of the months in the statute is merely directory. The penalties named in the statute are the liability of the officers for making a false statement, and the prohibition of the corporation from maintaining any action in the courts of this state "until they shall have first duly filed the statements herein provided for, and in all other respects complied with the provisions of this law." The use of this phrase shows that the prohibition to maintain an action was not intended to be absolute by reason of the failure to do the acts within the designated months, but was intended to exist only "until" they should have been done. See Byers V. Bourret, 64 Cal. 73, 28 Pac. Rep. 61. The object of the statute is not that the statement shall be published and filed in any particular months, so much as that the public shall have information of the financial standing of the corporation; and, for the purpose of enforcing this requirement, it declares that the corporation shall not maintain any action until it shall have complied therewith. The statute does not fix the time at which the statements shall be prepared, but as some time must necessarily elapse after their preparation before they can be published, and as they are to be published semiannually, it is reasonable to hold that it is a sufficient compliance with the provisions of the statute if a semiannual statement is published and filed before the time named in the statute for the publication of the next statement. 2. Although the statute provides for the publishing and filing of two statements,one of the capital stock, and the other of the assets and liabilities, of the corporation,-it does not require that they shall be presented in two distinct documents, nor do the appellants advance any reason in support of their objection that the incorporation of them both in one document is not a sufficient compliance with the statute. No such reason occurs to us, and we hold, therefore, that when the corporation has made proper statements of the amount of its capital actually paid in, and of the actual condition and value of its assets and liabilities, and where said assets are situated, the objection that such statements are incorporated into one document, and published and filed together, is not tenable, especially if they are recorded in each of the books kept for that purpose by the county recorder. In 3. The verification of the statements under consideration sufficiently conforms to the requirements of the act. The statute requires that the "sworn statement" shall be verified, in the case of a foreign corporation, "by the agent or manager of the business of such corporation, resident in this state," "before some judge or officer of this state authorized to take affidavits to be used before any court in this state." the present case the statements are each accompanied by the affidavit of William Lawson, "sworn to" before a notary public, in which he states that he is "the managing agent at San Francisco of the above-named bank, and that said bank has no cashier or secretary at its agency in said place; that the foregoing statement is, to the best of his knowledge and belief, a true and correct statement," in the one case, "of the actual condition and value of the assets and liabilities of said bank, and of the situation of the said assets on the 31st of December, 1889," and, in the other case, "of the capital actually and bona fide paid in money into the treasury of said bank." The objection that. the affidavit is not positive, or made upon the actual knowledge of the affiant, is not tenable. Necessarily, all the transactions of a corporation are not within the actual knowledge of any one individual; and the contents of the statement required by the statute must be obtained from different sources. The legislature did not intend to require an affidavit of a higher degree than could be made on the part of the officer from whom it is demanded, and, when an affidavit is to be made of matters which are presumptively derived through information from others, it is sufficient if the affiant states that it is made to the best of his knowledge and belief. 4. The statement of the amount of capital actually paid in is as follows: "Statement of the amount of capital of the Bank of British North America (incorporated by royal charter, 1840) at the close of business hours on the 31st of December, 1889, and April 4, 1890: "The above accounts are made upon the basis of $4.8665 to the pound sterling." To this statement is annexed the affidavit of the managing agent of the plaintiff, made April 4, 1890, in which he states "that the foregoing statement is, to the best of his knowledge and belief, a true and correct statement of the capital actually and bona fide paid in money into the treasury of said bank, of the reserve fund and undivided net profits thereof at the close of business hours on the 31st day of December, 1889, and at the date of the verification of this statement." The statement of the actual condition and value of its assets and liabilities is as follows: "Statement of the liabilities and assets of the Bank of British North America (incorporated by royal charter, 1840) at the close of business hours on the 31st of December and April 4, 1890. "Actual condition and value of said bank's liabilities: Cash and specie at bankers and on hand.. Cash at call and short notice Investments Bills receivable and other securities Bank premises Total .... $ 2,321,978 42 3,749,518 76 333,588 52 20,225,487 78 407,645 26 $27,038,218 74" And to this statement is also annexed an affidavit of the manager, made April 4, 1890, that "the same is a true and correct statement of the actual condition and value of the assets and liabilities of said bank, and of the situation of the said assets, at the close of business hours on the 31st of December, 1889, and, to the best of the affiant's knowledge and belief, is a true and correct statement of the actual condition and value of such assets and liabilities, and of the situation of said assets, at the date of the verifiIcation of this statement." The provision of the statute is that the corporation shall publish and file for record a sworn statement "of the amount of capital actually paid into such corporation, or into such banking business, provided that nothing shall be deemed capital actually paid in except money bona fide paid into the treasury of such bank * * *; and a like sworn statement of the actual condition and value of the assets and liabilities." We are of the opinion that the statements under consideration are a substantial, as well as a literal, compliance with these provisions of the act. The statute does not contemplate a detailed schedule, setting forth each asset and liability of the corporation, but its object is to show their condition and value in gross, with such distribution into groups or classes as will enable those for whose benefit the statements are required to ascertain the general condition and financial standing of the corporation as a banking institution. The statement of assets contemplated by the statute is one from which can be ascertained their condition and value, and whether they 'furnish a sufficient security for the public in dealing with the corporation; and this would include the general character of the securities in which its capital, as well as the moneys deposited with it, are invested; what portion thereof is available for meeting its liabilities, or may be readily converted into money therefor; and what portion is in a more permanent investment, or held as a quasi guaranty for its depositors. On the other hand, the statute contemplates such a statement of its liabilities as will show what portion thereof is immediate, and what portion remote; whether there is such a disparity between the assets and liabilities of the corporation as to render it of doubtful standing, or whether its surplus of available assets is such as to justify the public in regarding it as prosperous, and safe to deal with. These statements are intended to be general in character, and to give results, rather than details. The "condition" of the several assets and liabilities which is to be set forth therein is not a detailed description, from which the solvency of each asset is to be determined, as that object is reached by requiring their "value" to be stated. 5. The statute requires that the statement shall also show where the assets are situated. The manifest object of this provision is to furnish information to the public within this state, and particularly to those in the locality where the corporation has its place of business, of the security which is afforded to those whom the corporation invites to deal with it as a banking institution; and for this purpose it is essential to know where its assets may be found, as well as their condition and value, in order that those wishing to deal with it may determine whether they are available for the purpose of meeting its liabilities within this state. A banking corporation doing business in California, whose assets are chiefly in a remote part of the world, would not offer as great an inducement for patronage as if its assets were within the state; and, although such fact does not prevent it from doing business here, it has been determined by the legislature that, for the protection and guidance of those who may deal with it, the public shall be informed where the assets of the corporation are situated. The declaration in the statement of the plaintiff herein is that its assets "are situated partly in the city of London, England; partly in the city and county of San Francisco, California; partly in the city of New York, New York; and partly at the other places in Canada mentioned in the affidavit hereto, where the said bank has agencies." And in the affidavit it is stated "that the places in Canada at which the said bank has agencies, and at each of which a certain portion of its assets are situated, are as follows, to wit: London; Brantford; Paris; Hamilton; Toronto; Brandon, Man.; Kingston; Ottawa; Montreal; Quebec; St. John's, N. B.; Fredericton, N. B.; Halifax, N. S.; Victoria, B. C.; Vancouver, B. C.; Winnipeg, Man." This statement fails to comply with this provision of the statute, by reason of the omission to state the amount of the assets which are situated at each of the designated places. A statement giving the amount of the assets, and that they are situated in "Great Britain" or "California," would not be a compliance with the statute, nor would the designation of six or more of the principal cities in both or either of these countries as the places where they are situated be the statement which the law requires, if the amount of the assets in each of the designated places is not also given. The requirement of the statute that the statement shall show where the assets are situated means that it shall not only point out and designate with approximate particularity the place in which they are situated, but also that, if they are situated in more than one place, the amount of the assets in each of |