but it found enough to avoid the sale, and it was unnecessary to find more. The finding that the court in which the insolvency proceeding was pending" by an order duly made and given," appointed the plaintiff herein assignee of the estate of said insolvent, is attacked on the ground that there was not such proof as the law requires of the publication of the order appointing a meeting of creditors. In cases of voluntary insolvency it is provided that on receiving and filing the petition, schedule, and inventory, the court shall make an order declaring the petitioner insolvent, and appoint a time and place for a meeting of the creditors to prove their debts, and choose one or more assignees, and shall designate a newspaper or newspapers in which publication of said order shall be made, and that a copy of said order shall immediately be published by the clerk in the newspaper or newspapers designated as often as the newspaper is printed before the meeting of the creditors.

But in cases of involuntary insolvency, the court, on the filing of the creditors' petition, is required to issue an order requiring the debtor to show cause, at a time and place to be fixed by the court, why he should not be adjudged an insolvent debtor; and a copy of the petition and order to show cause must be served on the debtor. No provision is made for the service of any notice on the creditors, who are the plaintiffs in such cases. But the court is required to appoint a day for their meeting to elect an assignee. In a case of voluntary insolvency the proceeding as to creditors is one in invitum; but in case of involuntary insolvency, the reverse is true. The proceeding is then one in invitum as to the debtor, and the code provides how and in what manner he shall be served with notice, but makes no provision for the service of any notice on the creditors who are the moving parties, or the plaintiffs in the proceeding. In a case of voluntary insolvency the court does not acquire jurisdiction to appoint an assignee until after the order mentioned in section 6 has been made, and a copy of it published as provided in section 7. In a case of involuntary insolvency, jurisdiction is acquired by receiving the petition mentioned in section 8, making the order specified in section 9, and serving both the petition and order in the manner provided in section 10.

In this case the defendant objects that the creditors were not duly notified of a proceeding instituted by themselves, and therefore that the court did not acquire jurisdiction to appoint an assignee of his estate. We think jurisdiction was acquired in this case by the service of a copy of the petition of the creditors and order of the court on the debtor, and that the law did not require the publication of notice to creditors, as appellant contends. It does not appear that the debts of the petitioning creditors were created after the act of 1880 took effect, nor does it appear that they were not. We are informed by the transcript that "the creditors' petition in involuntary insolvency" was introduced in evidence by the plaintiff; contents not stated. It may have shown that the debts were created after the act of 1880 went into effect. If it did not, the appellant should have incorporated it in the record, in order to overcome the finding that the order appointing plaintiff assignee was duly made: and given.

Judgment and order affirmed.

THORNTON and MYRICK, JJ., concurred.

No. 9,229.

HAUSMEISTER v. PORTER.

Department One. Filed February 28, 1884.

JUDGMENT REVERSED on the authority of Meyer v. Porter, 1 West Coast Rep. 874.

APPEAL from a judgment of the superior court for Sacramento county, entered in favor of the defendant. This case was formerly decided and reported in 1 West Coast Rep. 877. An order was subsquently made vacating the judgment, after which the following opinion was filed.

Rosenbaum & Sheeline, and S. C. Denson, for the appellants.

W. A. Anderson, city attorney, and McKune & George, for the respondent.

By the COURT. On the authority of Meyer v. Porter, 1 West Coast Rep. 874, judgment reversed and cause remanded, with direction to the court below to overrule the demurrer and permit defendant to answer.

No. 8,915.

DE CELIS ET AL. v. PORTER ET AL.

Department Two. Filed February 28, 1884.

SUPREME COURT CAN NOT INFER ONE FACT FROM OTHER FACTS FOUND. The only inferences which it can draw from the findings are inferences of law.

JUDGMENT IN DE CELIS V. PORTER, 1 WEST COAST REP. 575, MCDIFIED as to the date from which interest should be allowed.

APPEAL from a judgment of the superior court for Los Angeles county. The facts are stated in the prior report of this case in 1 West Coast Rep. 575.

Glassell, Smith & Patton, for the appellants.

T. H. Howard, and Graves & Chapman, for the respondents.

By the COURT. The petition for a modification of the judgment calls attention to the fact that the interest should be charged on the credit allowed on the mortgage, five thousand two hundred and fifty-five dollars and thirty cents, with interest from the fourteenth of June, 1876, instead of from the seventh day of June, 1879. If it had been found as a fact by the court below, that the credit on the mortgage was allowed as of the fourteenth of June, 1876, we should unhesitatingly order the modification. But it is not so found. Of what date such credit was allowed is a fact which this court can not find, but which should have been found by the court below. It may be that the credit was allowed as of the fourteenth of June, 1876, but this can only be arrived at in this court by an inference of one fact from others found, which we can not make. The only inferences which we can draw from the findings are inferences of law. We are not allowed to draw inferences of fact from the facts found. If this court were to infer a fact from other facts, it would be usurping the province of the trial court, which alone can find the facts in issue. This is the rule with regard to special verdicts, and we are of opinion that the same rule applies to findings of fact. There is no finding that the credit referred to was allowed of an earlier date than that mentioned in

the opinion in the cause, and in directing a judgment on the findings we must adhere to the facts as found.

But the contract of the fourteenth of June, 1876, of which the mortgage sued on forms a part, which, it is held, was revived by the promise of Porter at the conference in relation to the judgment which was entered in this court in 1879, does bind Porter to pay interest on three fourths of this credit, at the rate of ten per cent. per annum; and the judgment should be modified so as to allow interest at the rate last named, as against Porter, from the seventh day of June, 1879. But Maclay has made no promise to pay interest at that rate. Maclay is only bound to pay the legal rate. And if Maclay should be called on to pay anything on the deficiency judgment, the interest, as against him, should be computed only at the rate of seven per cent. This applies not only to the computation to determine the amount of the deficiency, as against Maclay, but interest on the deficiency so determined, as against him, should be computed at the same rate.

The judgment is modified in this regard, and the court below, in entering judgment, will regard these directions, in addition to those given in the opinion filed on the twenty-ninth day of January, 1884.

No. 8,494.

SWEETSER ET ALS., Ex'rs, etc., v. DOBBINS.

Department Two. Filed February 28, 1884.

FINDINGS OF A JURY ON SPECIAL ISSUES SUBMITTED TO THEм, in an action for the reformation of a deed for an alleged mistake, are merely advisory to the court. If, in such action, the court files findings as to all the facts in issue, in which, after reciting that a jury had been impaneled to try special issues, and had rendered a verdict, it is. stated, "Now, from said verdict and the testimony adduced in said cause, after due consideration, the court finds the following facts," a judgment entered upon such findings will not be reversed for an erroneous instruction to the jury as to the character of the evidence necessary to warrant the relief asked.

THE COURT MAY CAUTION A WITNESS NOT TO GIVE EVIDENCE OF FACTS based on knowledge derived from his client, or by hearsay from others; and may strike out such evidence already given.

THE REJECTION OF IMMATERIAL EVIDENCE is not error.

CROSS-EXAMINATION MAY INCLUDE THE ORIGINAL COMPLAINT, although an amended complaint has been filed.

ERROR IN OVERRULING AN OBJECTION TO A QUESTION ASKED A WITNESS can not be taken advantage of when the answer was favorable to the appellant.

A MORTGAGE EXECUTED BY THE DEFENDANT MAY BE INTRODUCED IN EVIDENCE in an action to reform a subsequent deed, when the two instruments form parts of the same transaction.

IN SUCH ACTION THE SCRIVENER MAY TESTIFY AS TO THE DATA FURNISHED HIM for drafting such mortgage, and that he had compared the same with the data.

THE COURT HAS DISCRETION TO REFUSE A FURTHER EXAMINATION of the same witness on a point on which he has already been examined.

ERRONEOUS FINDING OF THE COURT ON AN IMMATERIAL ISSUE will not warrant a reversal.

APPEAL from a judgment of the superior court for Solano county, entered in favor of the defendant, and from an order denying the plaintiffs a new trial. The opinion states the facts.

George A. Lamont and George A. Nourse, for the appellants.

J. McKenna, Wendell & Kelley, and A. J. Dobbins, for the respondent.

MYRICK, J. The complaint in this case was filed to obtain a decree reforming a deed executed by defendant to plaintiffs' testator, so as to include a tract of land not included therein, and that said tract be conveyed to them in their representative capacity. The plaintiff's alleged that by the agreement of their testator and the defendant the tract was agreed to be embraced in the deed, and was omitted therefrom by the mistake and inadvertence of the scrivener. The defendant denied such agreement and mistake, and alleged that the deed contained all the land which he had agreed to convey. Special issues were submitted to a jury; and the verdict was, in effect, in favor of defendant. The court filed findings as to all the facts in issue, in which, after reciting the fact that a jury had been impaneled to try special issues and had rendered a verdict, it is stated: "Now, from said verdict and the testimony adduced in said cause, after due consideration, the court finds the following facts," etc. On this appeal points are presented by the plaintiffs, viz.:

1. The court instructed the jury that as to the first issue presented to them (which was merely as to whether the land of defendant was divided into seven or eight parcels), the rule was that a preponderance of evidence should govern them; but as to the other issues (which related to the alleged agreement and mistake), a different rule obtains from that in ordinary civil actions; that to establish a mistake in the execution of a written instrument, the evidence as to the mistake must be clear and convincing; that the evidence must be more than mere preponderance-it must be clear and convincing.

The plaintiffs allege this instruction to be error; that subdivision 5, section 2061, code of civil procedure, furnishes the rule in all civil cases, that "when the evidence is contradictory the decision must be made according to the preponderance of evidence;" that the instruction gave one rule to one class of civil cases, viz., an action to reform an instrument, and another rule to other civil cases.

It was decided by this court in Bates v. Gage, 49 Cal. 126, that the findings of a jury on special issues are merely advisory to the court, and if adopted by it are the findings of the court; in Wingate v. Ferris, 50 Id. 105, it was held that if a general verdict be rendered by the jury, the court can set aside the verdict (without motion for new trial), and find the facts and render judgment on the testimony already taken; and in Brandt v. Wheaton, 52 Id. 430, it was held that in case of general verdict, the court must, notwithstanding the verdict, find the facts.

If it be a correct principle that a general verdict may be disregarded by the court, and a decision be rendered by it on the testimony already given, and if a verdict on special issues is merely advisory, to be adopted by the court or not, as it is convinced, how far was it error for the court to instruct the jury as it did, conceding, for the purpose of this case, that the statute above quoted furnishes the rule for all civil cases?

The court found all the facts: it found that the agreement alleged in the complaint was not made; it found that the agreement alleged in the answer was made; it found that no parcel of land was omitted, through mistake or inadvertence, to be mentioned or described in the deed; it found that the deed included all the land intended to be conveyed, and correctly expressed the intention of the parties to the same. As above stated, the court said, as preliminary to the facts: " Now, from said verdict and the testimony adduced in said cause, after due consideration,

the court finds," etc. What answer of the jury did the court rely upon and adopt as the basis of its findings? and what finding was based on the determination of the court from the testimony? This does not appear. It does not appear that the court adopted any portion of the verdict, as distinguished from exercising its own judgment. It is true, the court said, "from said verdict;" but it also said, from "the testimony adduced in said cause, after due consideration, the court finds." The court had authority to rely on its own opinion in regard to the weight of evidence; and in doing so, it is to be presumed that it was governed by proper and legal rules. According to the section of the code above referred to, the jury is to be instructed by the court, "on all proper occasions," that when the evidence is contradictory the decision must be made according to the preponderance of evidence. This evidently refers to all cases where the decision of the jury is final as to the facts. In cases at law, the decision of the jury is final, unless set aside; but in equity cases it is merely advisory, and may be adopted or not, as the court shall be convinced. If this case had been tried by the court without a jury, there is no doubt that the court would have been governed by the rule that the law presumes the deed to speak the intention of the parties, and to overcome such presumption, the plaintiff would have been required to show, by proof clear and convincing, that it did not so speak; it must, therefore, necessarily follow, in cases where a verdict is but advisory, that the same rule should govern a jury. It can not be that the legislature intended one rule regarding the weight of evidence to apply to a court and another rule to a jury in arriving at a decision in the same case. The court was not bound to enforce upon the jury a rule which it was not bound in law or in conscience to apply to its own action. 2. It was not error for the court to caution the witness Lamont not to give evidence of facts based on knowledge derived from Pierce (plaintiffs' testator), or by hearsay from others; nor to strike out the evidence based thereon already given.

3. The witness Lamont was asked whether or not he would have attached certain property if he had not supposed it was mortgaged, and an objection to the question was sustained. Conceding it to be possible for a person to tell what he would or would not have done regarding a transaction now passed, we do not see that it could have affected the verdict. The matter for consideration was, What did he do? not, What would he have done?

4. We see no error in permitting the cross-examination of the witness Lamont to include the original complaint.

5. A witness (Rush) was examined as to a conversation had by him with the defendant. He had not a distinct recollection of what the defendant said; and on cross-examination, was asked as to the impression left on his mind from what was said. If the court erred in overruling the objection, the error did appellant no harm, because the answer was favorable to him.

6. The mortgage first executed by the defendant was a portion of the transactions between the parties culminating in the deed in question, and it was admissible in evidence.

7. It was not error to admit Coghlan's testimony as to the data had for drafting the mortgage made February 1, 1876; nor,

8. To allow Coghlan to testify he had no doubt that he had compared the instrument with the data from which it was drawn.