its cashier. By the by-laws of the bank the president and cashier were each empowered "to discount bills, notes, or other evidences of debt, to buy and sell bills of exchange, to make loans with or without security, and generally to transact and carry on the business of the bank, subject to the direction of the board of trustees expressed through the by-laws, or such express resolution as may, from time to time, be passed; and they shall each report to the board of trustees, when required, each and everything by them, or either of them, transacted." The evidence shows, and the findings of the court below are to the effect, that the defendant was the active manager of the bank. Between the first day of January, 1871, and the first day of October, 1874, he loaned, personally and through the assistant cashier, to one De Blainville divers sums of the plaintiff's money-in the aggregate $36,599, or thereabouts. Those loans were made without any security being taken therefor, and no entry or memorandum thereof was made in the books of the bank. Nor was any note or memorandum of any kind whatever made or kept by defendant of the transactions with De Blainville save and except memoranda upon slips of paper, called, in the record, "tags," and kept in the bank on a wire, which tags showed the amounts loaned to and paid by De Blainville, and the balance due by him from time to time. On the twelfth day of March, 1877, there remained, and ever since has remained, unpaid, of the moneys so loaned to De Blainville by defendant, the sum of $9,247.49.

The by-laws required that the board of trustees should every month examine into the affairs of the bank, count its cash, and compare its assets and liabilities with the balances on the general ledger, for the purpose of ascertaining the condition of the bank and whether the books were correctly kept. The duty thus imposed upon the board. seems, from the record, to have been grossly neglected; for prior to the month of March, 1877, the cash does not appear ever to have been counted by it, and none but the most superficial examination made into the affairs of the bank. The board, however, met monthly, and to it at each meeting the defendant presented as his report a book of general balances, which, among other things, purported to represent the amount of cash on hand. These representations-so far, at least, as the item of cash was concerned-were untrue; for the amount of cash represented by the book of general balances was more than the amount of cash in the vaults of the bank by the amount represented by the "tags" already alluded to. The defendant thus represented to the board of directors that certain money of the bank was in the vaults, whereas in truth he had loaned it to a man, not only without security and without taking from him the slightest evidence of indebtedness, but, so far as appears, without interest, and from whom he never made the slightest effort to collect it. And there is testimony going to show that when, in March, 1877, the board of directors concluded to count the cash, defendant, on being informed v.3,no.14-55

of that intention, instructed the assistant cashier to put the "tags" away, immediately left the bank, and a few days afterwards resigned his position. To hold that one intrusted with the care and management, for profit, of funds of another, can dispose of those funds as did the defendant without liability to himself, would be, as we conceive, to do violence to the most obvious principles of law and justice. It is no justification of the defendant to say that the directors of the bank did not do their duty; that if they had counted the cash they would have found it short, and their attention would thus have been attracted to the "tags," and so to the fact of the loans to De Blainville. The defendant stood in a position of trust and confidence, and he was at least bound to act in good faith in respect to the property intrusted to him. If it be admitted that he was not bound to report the condition of the affairs of the bank to the board of directors, unless such report was by the board required, still he was bound in law and conscience to make such report as he did make speak the truth. Defendant was rightly held liable by the court below for the amount of the De Blainville indebtedness.

But upon another question in the case the judgment and order must be reversed, and the cause remanded for a new trial. The defendant was first appointed cashier, by the board of trustees of the plaintiff, on the thirtieth day of March, 1868, for the period of three months. On the first Wednesday of July, 1868, he was reappointed for the period of 12 months. After that there was an annual election or employment of him as cashier by the board of trustees, pursuant to the bylaws of the bank. Defendant's compensation as cashier was never fixed by any resolution of the board of trustees, but it appears that when first appointed there was a verbal understanding between himself and the trustees that he was to draw a salary of $200 per month; and this salary he did draw and charge himself with from the time of his entry upon the duties of his office to the first day of April, 1870. From the date last mentioned defendant drew the sum of $300 per month as his salary as cashier. This sum he caused to be charged against himself in the books of the bank, and he so returned it in the book of general balances presented to the board of trustees at their monthly meetings. The board must therefore be held to have had knowledge of the fact that defendant was charging and drawing for his services as cashier the sum of $300 per month, and with this knowledge they continued to reappoint him cashier for seven successive years. Under such circumstances the board of trustees must be held to have agreed to the charge made by the defendant for his services as cashier.

Judgment and order reversed, and cause remanded for a new trial.

We concur: MCKEE, J.; McKINSTRY, J.

(65 Cal. 254)

REGO v. VAN PELT. (No. 7,759.)

Filed May 20, 1884.

In ejectment, where both plaintiff and defendant claim under a common grantor, neither is called on to show a right of possession in said grantor, nor can either assail his title.

A quitclaim deed, even prior to the act of February 22, 1854, is sufficient to pass any estate the grantor had, and the grantee may maintain ejectment thereon if his grantor could have done so.

The complaint, in an action of ejectment, which avers that "defendants are in possession of said lands and the whole thereof, withhold the possession of the same from plaintiff, and exclude him from the same," sufficiently alleges an ouster by defendants.

Department 1. Appeal from the superior court of Santa Clara county.

S. O. Houghton and J. Reynolds, for appellant.

Moore, Laine & Johnston, for respondents.

BY THE COURT. Appellant says plaintiff and the grantor of defendant were not tenants in common, because their grantor, Evans, had no estate or interest in the premises, founded upon title, or rightful possession. But Evans had actual possession, and delivered such possession to his grantees. In ejectment, neither is plaintiff called on to show a right of possession in a person from whom both he and defendant deraign, nor can defendant assail the title of the common grantor. The unity of possession, where both derive from the same source, cannot be denied by either. The deed from Evans and wife to plaintiff and Hammond (grantor of defendant) was executed February 22, 1854, prior to the passage of the act which, it is claimed, firstmade quitclaim deeds operative as conveyances, without any precedent estate or interest in the grantee. But, as was said in Graff v. Middleton, 43 Cal. 344, "in this state, from the earliest times, quitclaim deeds have been in every-day use for the purpose of transferring title to land, and have been considered as effectual for that purpose as deeds of bargain and sale." In Sullivan v. Davis, 4 Cal. 291, decided at the October term, 1854, it was held that a quitclaim conveyed all the right and title of the grantor or releasor. And in Frey v. Clifford, 44 Cal. 343, the supreme court said that under the registry law a quitclaim deed, received in good faith and for a valuable consideration, which is first recorded, will prevail over an older deed subsequently recorded. So, in Lawrence v. Ballou, 37 Cal. 521, it was held that a quitclaim deed passed the title. No reference is made to the statute of 1855. Without making the rule in any respect dependent upon the statute, Downer v. Smith, 24 Cal. 123, and Carpentier v. Williamson, 25 Cal. 154, concur in construing Sullivan v.

Davis, supra, as holding that an ordinary quitclaim deed in this state is sufficient to pass any estate the grantor had, and to enable the grantee to maintain ejectment if his grantor could have done so. As we have seen, the defendant here cannot dispute the title of Evans, the grantor of plaintiff and Hammond.

The complaint (certainly in the absence of a special demurrer) sufficiently alleges an ouster by defendants. Payne v. Treadwell, 16 Cal. 244. It avers: "Defendants are in possession of said lands and premises, and the whole thereof, withhold the possession of the whole thereof from plaintiff, and exclude plaintiff from the same. Judgment affirmed.

(65 Cal. 267)

PEOPLE V. BENNETT. (No. 10,960.)

Filed May 20, 1884.

Errors in the admission evidence which are not prejudicial to the prisoner, are error without injury, and not a ground for reversal.”

Where, in a criminal prosecution, the jury comes into court with a verdict, and the defendant's attorney is notified of the fact, the court, after waiting a sufficient length of time for the attorney to come into court, if so disposed, is justified in receiving the verdict, polling the jury, and discharging it.

In bank. Appeal from the superior court of Solano county.

Jos. McKenna and G. Lamont, for appellant.

Atty. Gen. Marshall, for respondent.

SHARPSTEIN, J. Whether the deceased "usually walked with his hands in his pockets" would not have been of the slightest importance, and would therefore have been an immaterial circumstance, if the defendant had not, after the admission of evidence as to the habit of deceased in that respect, attempted to prove that when deceased was shot he had his hand in his pocket with the intention, as defendant supposed, of drawing a deadly weapon therefrom, with which to attack him. When the question objected to was asked, it was simply immaterial, and evidence that deceased usually walked with his hands in his pockets could not have prejudiced the defendant any more than evidence that the deceased usually walked with his hands outside of his pockets would. Such evidence in no way tended to strengthen the case of the prosecution. The only effect it could have had was to weaken that of the defendant. And whether introduced before or after the defendant had developed his defense, the effect would have been the same. So that the only question is whether it would have been admissible at any stage of the trial. The insistence of defendant's coun

sel is that it would not, "unless the knowledge of such habit" could be "brought home to the defendant." Precisely how this should have been done is not stated. If the deceased usually walked with his hands in his pockets, the defendant might or might not have observed it. The probability of his having done so would depend largely on the opportunities he had had for observing it. So that the weight of such testimony would depend on circumstances which it was proper for the jury to consider. But there is another ground on which such evidence was, in our opinion, clearly admissible. The defendant testified that when he shot the deceased the latter had his hand in his right pantaloons pocket. Several witnesses for the prosecution testified that he was walking with both hands in the front pockets of his pantaloons. Under such circumstances, evidence that he usually walked with them there tended to corroborate the evidence of the witnesses who testified that when shot he was walking with them there. It would have been better to have waited until the defendant had introduced evidence on this point before introducing the evidence objected to, and then to have introduced it in rebuttal. But, as before suggested, it would then have been no less prejudicial to the defendant. At most, it was error without injury.

When the jury came into court with a verdict, and the defendant's attorney was informed of the fact, we think the court, after waiting a sufficient length of time for said attorney to come into court, if he had been so disposed, was justified in receiving the verdict, polling the jury, and discharging it, as was done. It is impossible to see, and no attempt was made to show, how the defendant could have been prejudiced, in any degree, by the action of the court. Judgment and order affirmed.

Ross, J. I do not agree that the court below was right in admitting testimony as to the custom of deceased in walking with his hands. in his pockets; but, in view of the whole case, I do not think it was such an error as calls for a reversal. I concur in the judgment.