*

was unnecessary to specify the value of the personal property taken. People v. Townsley, 39 Cal. 405; State v. Burke, 73 N. C. 83. The authorities hold, almost universally, that the description of the property taken in robbery is required to be equally specific with that required in larceny. Prior to the amendment of 1880 to our Penal Code, a much greater degree of particularity was required in this respect than at present. By section 967, it is now provided that in an indictment or information for the larceny or embezzlement of money, bank notes, etc., it is sufficient "to allege the larceny or embezzlement * * * to be of money, banknotes, without specifying the coin, number, denomination or kind thereof." This statute does not, in terms, apply to cases of robbery, but as the latter crime is but larceny from the person, accomplished by force or fear, and as the same reasons exist for the modification of the rule in such cases, it may well be held that a rule which often required impossibilities in description, the existence of which courts often regretted, as tending to thwart rather than promote justice, should be modified. Be this, however, as it may, after judgment in an action without objection, whether in a civil or criminal case, a pleading which states a cause of action or offense, but states it defectively, cannot be successfully attacked. It is not, in such cases, a defective allegation, but a total lack of allegation, which renders the judgment void, and hence open to attack. There is here an attempt to describe the personal property taken,-a lame one, it must be confessed,-but, imperfect though it be, it is nevertheless such a one as will support a judgment. Wharton on Criminal Pleading and Practice, quoting Blackburn, J., says "that where an averment which is necessary to support a particular part of the pleading has been imperfectly stated, and a verdict on an issue involving that averment is found, and it appears to the court, after verdict, that unless this averment were true the verdict could not be sustained, in such case the verdict cures the defective averment, which might have been had on demurrer," and in this respect there is no distinction between the pleadings in civil and criminal proceedings. Section 760; People v. Swenson, supra. A review of the cases, coupled with the phraseology of our Code, leads to the conclusion that the defect in the information was waived by the defendant. Had objection been made at the trial to testimony describing the property taken from the prosecuting witness, upon the ground that it was not sufficiently described in the information, its admission might have been made the basis of error on a motion for new trial, but no objection on this ground was interposed.

At the trial the prosecuting witness described the robbery as having taken place on the "Chinese October 26th," and stated that she knew nothing of the American date,

but that it was the day before, she made and filed the complaint against defendants. Thereupon the district attorney, for the purpose of "fixing the date upon which the transaction was said to have occurred," offered in evidence the complaint made and filed against the defendants. The court admitted it for the purpose indicated, and the ruling is assigned as error. It was admissible as evidence for the purpose in view.

The court, at the trial, made several rulings excluding testimony in reference to the disappearance and whereabouts of a young daughter of the prosecuting witness, who, it seems, had disappeared on the day of the commission of the alleged offense, and these rulings are assigned as error. It appears that, on the night of the alleged offense, Chuey Ying Git, one of the defendants, called upon Ah Bow, the prosecuting witness, at her home in Bakersfield, and informed her that her girl was down at his house, and that thereupon she accompanied Ying Git to his house, where, according to her statement, she did not find her daughter, and where, as she testified, as do two other witnesses, the defendants, by force and violence, robbed her of her money and jewels. The proffered testimony in reference to the daughter was not pertinent to any issue in the case, and its exclusion was not error. Had it been otherwise, the error would have been cured by the testimony of the witness Brown, who seems to have a mission school, and who, in reply to a question by a juror, stated that he and his wife had taken the girl away, and sent her to a "good Christian home in San Francisco, and the girl is there now, [at the time of the trial,] comfortable and happy." The theory that the charge against the defendants grew out of the disappearance of this girl, in the face of the positive evidence of robbery against the defendants, is farfetched, and entitled to little consideration.

The other objections to evidence are not of sufficient importance to require comment. The judgment and order appealed from should be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

(4 Cal. Unrep. 369)

DREW v. ROGERS. (No. 18,245.) (Supreme Court of California. Dec. 19, 1893.) CHIEF OF POLICE-ELECTION-QUALIFICATION.

Where one, without the qualification of being a citizen of the United States, has been elected to the office of chief of police of a city, the election will be annulled, and his certificate canceled.

In bank. Appeal from superior court, Sac ramento county; W. C. VanFleet, Judge.

Robert T. & Wm. H. Devlin and Brusie & Layson, for appellant. Johnson, Johnson & Johnson and C. T. Jones, for respondent.

PER CURIAM. On March 8, 1892, there was a general municipal election in the city of Sacramento, at which the defendant, Rogers, received the highest number of votes for the office of chief of police of that city. He received a certificate of election, and entered upon the duties of the office. This proceeding was brought in the superior court, under section 1111 et seq. of the Code of Civil Procedure, to contest the right of said Rogers to hold said office, upon the ground that he was not eligible thereto at the time of said election. The court found that he was not eligible, and entered judgment annulling the election and canceling the said certificate. From this judgment Rogers appeals.

The appellant was born in Australia, of British parents, and came with them to this country when a child; and the question before the court was whether or not he had become a citizen of the United States 90 days before the election. He contends that he had at that time become a citizen-First, because his father, Thomas H. Baxter, was naturalized before appellant was 21 years old; and, second, because, while he was a minor, his mother, Mary Baxter, married one W. A. Rogers, who was a native-born citizen. As to the first of these contentions, the court found that appellant's father was not naturalized until after appellant had attained his majority; and the evidence upon that point was such, to say the least of it, as to leave no room for disturbing the finding. As to the second contention, the court finds that at the time of the alleged marriage of Mary Baxter to W. A. Rogers the husband of the former, Thomas H. Baxter, was living, and continued to live until after the death of said Mary; and that, while they had separated, they were never divorced; and this finding is clearly warranted by the evidence. Appellant contends that the law to sustain the second marriage will presume a divorce, but it is not necessary to inquire into the correctness or extent of such presumption, for the court finds that, independent of the absence of proof of divorce, there never was any marriage between appellant's mother and said W. A. Rogers; and we cannot say that the evidence does not warrant such finding. There are no other points in the case which we deem necessary to be noticed. As remarked by the learned judge of the court below, it is perhaps unfortunate that the judgment is not in harmony with the choice of a majority of the voters as expressed at the time of said election, but the will of the people can be exercised only by

scribed in their constitution and laws. The judgment appealed from is affirmed.

(100 Cal. 442)

SAN LUIS OBISPO COUNTY v. PETTIT et al. (No. 19,287.) (Supreme Court of California. Dec. 21, 1893.) COUNTY TREASURER-MISAPPROPRIATION OF FUNDS --ESTOPPEL.

A county auditor, as required by the county government act, (section 115,) settled the accounts of a tax collector, certified to the treasurer the amount payable into the county treasury, and, on the presentation and filing of the treasurer's receipt therefor, discharged the collector, and charged the treasurer with the amount. The county treasurer gave his receipt to the collector, and charged himself with the amount in his official books; and in making his monthly settlements with the auditor, as required by section 80, he made a sworn statement that he had received such amount from the collector, and that it was then on hand. Held, that the treasurer was estopped by his receipt and his statement under oath to deny the receipt of such amount from the collector.

Department 1. Appeal from superior court, San Luis Obispo county; V. A. Gregg, Judge. Action by the county of San Luis Obispo against B. F. Pettit and others on the official bond of said Pettit as county treasurer. From a judgment for plaintiff, defendants appeal. Affirmed.

Wilcoxon & Bouldin and McD. R. Venable, for appellants. F. A. Dorn, Dist. Atty., for respondent.

HARRISON, J. The defendant Pettit was elected treasurer of the county of San Luis Obispo at the general election in 1890 for the term of two years, and held his office until January, 1893. June 2, 1891, the other defendants became sureties on his official bond for the faithful performance by him of all his official duties. The present action was brought to recover the sum of $2.316.19, which it is alleged had been misappropriated or lost by Pettit while it was in his possession as such treasurer. Judgment was rendered in favor of the plaintiff and the defendants have appealed. The facts upon which the judgment was given are as follows: One Madison Graves was a license tax collector for the county, and by virtue of a county ordinance imposing license taxes collected various sums of money for the county, which it was his duty to pay into the county treasury. On the 1st of August, 1892, Graves made a settlement with the county auditor for the license taxes that had been collected by him, and such settlement showed that he had at that time in his possession $2,927.21 of license tax money collected by him and belonging to the county, and the county auditor issued to him a certificate showing that he had made such settlement, and that the above amount was due to the county. Graves delivered this certificate to Pettit ou

or about the 30th of September, 1892, and on the 4th of October, Pettit, as county treasurer, delivered to the auditor of the county a receipt, showing that he had received from Graves this sum of money. Thereupon the auditor made entries in his books charging Pettit with the amount mentioned in the receipt, and crediting Graves with the same amount; and entries were afterwards made by Pettit in the county treasurer's books, charging himself, as treasurer, with said sum, as having been received from Graves by him on account of license taxes. On the 1st of December, 1892, when the official count of the money in the treasury was made, there was a shortage of $2,316.19 in the moneys which should have been in the treasury, and when Pettit, at the expiration of his term, handed over to his successor the moneys in the treasury, there still remained this deficiency according to his books.

It is alleged by the sureties in their answer as a defense to the action that at the time when the receipt was given to the auditor, Graves did not in fact pay over the money therein named, except about $400, and that he has never paid any other portion thereof; and in support of this averment evidence was offered at the trial that at the time the receipt was given to the auditor Pettit had not received any of the money therein named, but that he delivered the receipt at the request of Graves, and upon his agreement that he would subsequently give him a check for the amount; that he did afterwards receive from Graves his check upon a local bank for the sum of $2,500, which he still held, for the reason that Graves had stopped its payment. Pettit made entries in his books in the early part of October to the effect that he had received this amount of money, and on the first of each month thereafter during his term made his sworn statement to the auditor, as required by law, that this amount of money was in his hands as treasurer of the county. Upon these facts it is contended by the sureties that, as Pettit did not receive the money from Graves, they are not liable upon his bond, and that Graves, and not Pettit, is indebted to the county for the amount of the check. Graves, however, testifies positively that he paid this entire sum of money to Pettit, as county treasurer, prior to October 4, 1892. But, assuming that the facts were as claimed by the appellants, we are of the opinion that they do not constitute a defense to the action. Section 115 of the county government act (St. 1891, p. 323) requires the county auditor to settle the accounts of all persons holding moneys payable into the county treasury, and to certify the amount to the treasurer; and provides that upon the presentation and filing of the treasurer's receipt therefor, he shall give to such persons a discharge, and charge the treasurer with the amount received by him. In Butte Co. v. Morgan, 76 Cal. 1, 18 Pac. 115, it was held that "the

auditor is not required to go to the treasurer and ask him whether the amount has been actually paid; or, in other words, whethe the receipt states the truth. He is authorized to accept the receipt as sufficient evidence of the fact of payment." This case presents many points similar to the present one, and must be regarded as controlling. Section 80 of the county government act requires the treasurer to settle his accounts with the auditor on the first Monday of each month, and, for the purpose of making such settlement, to make a statement under oath of the amount of money received prior to the period of such settlement, the sources whence the same was derived, and the amount remaining on hand. These settlements and statements were made by Pettit, and he ought not now to be permitted to exonerate himself from liability to the county by showing that these statements were false, and that, instead of requiring Graves to pay this money into the treasury, he had taken his individual promise to pay it at a subsequent date. By delivering to the auditor his receipt for the moneys which Graves had collected, he had authorized the auditor to enter upon his books a discharge of Graves' liability, and is thereby estopped from questioning the correctness of his receipt. If he chose to permit Graves to retain this money upon his promise to subsequently pay it to him, to that extent he failed to perform his official duty in requiring the money to be paid into the treasury, and must be regarded as having become himself, rather than the county, the creditor of Graves. If any loss occurred by reason of Graves' subsequent failure to pay his check, it should be borne by Pettit, rather than by the county, since the loss had been made possible by reason of Pettit's violation of his official duty; and his sureties are liable to the county equally with him for such misappropriation or loss of the money.

Whatever defect there was in the complaint by reason of its uncertainty was cured by the answer of the defendants, in which they allege that the amount of money for which this receipt was given, and which they allege was not paid, is the same money as that which is claimed in the action. The judgment is affirmed.

HARRISON, J. Proceedings to condemn certain lands for a public street in the city of San Luis Obispo. The jury assessed the value of the land taken from the defendants at $6,500. The plaintiff moved for a new trial upon the ground that the verdict was not sustained by the evidence. The court below was of this opinion, but held that the evidence would support a verdict for $5,000, and made an order that, if the defendants would remit $1,500, a new trial should be denied. The defendants having remitted that amount, the court denied a new trial, and the plaintiff has appealed.

We have carefully examined the record, and are unable to concur with the views of the learned judge of the court below. The land sought to be taken for the street has a frontage of 18 feet and 10 inches on Monterey street, and the highest estimate placed upon its value by any witness who testified upon the subject is $200 per front foot. Other witnesses estimated its value at a much lower amount. Some of the witnesses for the defendants stated that they estimated the land upon that side of the creek as worth about 25 per cent. more than land upon the other side, and one of them said that if he was to buy this property he would pay from 20 to 25 per cent. more than he would for property on the other side of the creek. Neither of these witnesses, however, gave any evidence of the value of the land on either side of the creek, and the only testimony of the value of the land upon the other side was that of the witness Warden, who said that he gave $150 a foot for it. The defendants introduced in evidence the report of the commissioners who had been appointed to determine its value, under the statute by virtue of which the proceedings were had, (St. 1889, p. 70,) from which it appeared that they had awarded to the owner of 10 feet of land on the other side of the creek, which had been taken under the same proceeding, the sum of $3,750, which was made up as follows: Land taken, $2,500; damages to improvements, $1,000; damages to realty affected, $250,-and that they had also awarded to these defendants, for the land in question, $3,900. These commissioners were also witnesses at the trial, and testified that the value of the land in question was $150 a front foot. They also stated that they had allowed the sum of $3,900 to the defendants for the reason that they were willing to pay more than the property was worth, for the sake of time and to pre

vent a lawsuit, and that they had been willing to pay more for the land on the other side of the creek than they thought the property was worth, in order to save a condemnation suit. We do not consider that this report of the commissioners was competent to show the value of the land in question. It has been held that, for the purpose of ascertaining the value of a piece of land, evidence may be received of sales of other parcels of land in the immediate vicinity, similarly situated, if recently made; but we have not been referred to any case in which it has been held that the value fixed by an agreement between the owner and a corporation seeking to condemn his land by virtue of eminent domain can be taken as a criterion of the market value of other land in that vicinity. As was said by the supreme court of Massachusetts in Cobb v. City of Boston, 112 Mass. 181: "The price so fixed by compromise, when there can be no other purchaser, and the seller has no option to refuse to sell, and can only elect between the acceptance of the price offered and the delay, uncertainty, and trouble of legal proceedings for an assessment, is not a reasonable or fair test of market value. It is in no sense a sale in the market." Mr. Lewis, in his treatise on Eminent Domain, (section 447,) says: "What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. The fear of one party or the other to take. the risk of legal proceedings ordinarily results in the one party paying more, or the other taking less, than is considered to be the fair market value of the property. For these reasons, such sales would not seem to be competent evidence of value in any case, whether in a proceeding by the same condemning party, or otherwise." See, also, City of Springfield v. Schmook, 68 Mo. 394; Railroad Co. v. McLaren, 47 Ga. 546; Fall River Print Works v. Fall River, 110 Mass. 428; In re Thompson, 127 N. Y. 463, 28 N. E. 389; Railroad Co. v. Pearson, 35 Cal. 262. In Waterworks v. Drinkhouse, 92 Cal. 532, 28 Pac. 681, where the court had endeavored to ascertain the value of the property sought to be condemned, and a witness had been asked how much the plaintiff had paid for other lands, we said: "However the rule may be in other states, it is settled here that such facts are not admissible as evidence in chief, but only by way of cross-examination, for the purpose of testing the fairness or honesty of an opinion which the witness may have given upon his direct examination, in relation to the value of the property involved in the action." In the present case the above evidence was proper in cross-examination of the plaintiff's witnesses, for the purpose of testing the accuracy and honesty of the opinions which they had given of the value of the land in their direct examination; but, as it would not have

1. Error in striking out parts of a complaint is waived by the subsequent filing of an amended complaint.

2. Under Civil Code, § 1265, providing that, upon the death of one of the spouses, the homestead vests in the survivor if it had been selected from community property, the children of homesteaders, upon the death of their father, acquire no interest by succession as his heirs at law in a homestead so selected, and hence no equity vests in them to redeem from the foreclosure of a mortgage on such homestead.

3. As an inducement to the signing by the wife of a mortgage on the homestead, the mortgagee agreed to convey to the wife and her children, in case of foreclosure, either a part of the mortgaged premises, or other land. Held, that the mortgagee's failure to so convey was no ground for the vacation of a decree foreclosing the mortgage, as the wife and children had an adequate remedy at law to enforce the agreement.

4. As under Civil Code, § 1265, the title to a homestead selected from community property vests, on the death of one of the spouses, in the survivor, the heirs of a deceased spouse are not necessary parties defendant to an action to foreclose a mortgage on the homestead, brought after the death of such spouse.

5. The fact that the mortgagee of a homestead, who, as an inducement to the signing of the mortgage by the wife, had agreed to convey to the wife and her children, in case of foreclosure, certain land, told the administrator of the husband and the attorney for the children, prior to instituting proceedings to foreclose, that there was no defense to foreclosure, does not constitute fraud on his part, and is no ground for the vacation of a decree of foreclosure.

Commissioners' decision. Department 1. Appeal from superior court, Santa Clara county.

Action by Oriville E. Collins and others against Angelia R. Scott and another to procure the vacation of a judgment foreclosing a mortgage, and all proceedings thereunder. From a judgment for defendants, entered upon an order sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

Henry E. Highton, for appellants. Galpin & Zeigler, for respondents.

SEARLS, C. This action is brought to procure a vacation, as to the plaintiffs, of a judgment of foreclosure and all proceedings thereunder, including a sale of the mortgaged premises, to have a certificate of sale and a sheriff's deed declared void, for an accounting by the purchaser and his successor in interest of the rents and profits, and for a decree allowing plaintiffs to redeem the undivided three-tenths of said mortgaged premises on paying a like three-tenths of the amount found due upon an accounting on said mortgage, etc. A demurrer was interposed to the amended complaint of plaintiffs, which was sustained by the court, and, upon plaintiffs' failure to amend, final judgment was entered in favor of the defendants, from which judgment plaintiffs appeal.

There is a bill of exceptions in the record, taken to the action of the court in striking out portions of the original complaint, but, as an amended complaint was subsequently filed, the error, if any, in the order striking out was thereby waived. Were it otherwise, the portion stricken out is substantially inserted, and at greater length, in the amended complaint.

The demurrer was based upon a failure of the amended complaint to state facts sufficient to constitute a cause of action, and this is the only question presented for consideration. The following synopsis of the allegations of the complaint are deemed sufficient to illustrate its salient points: On the 12th day of January, 1877, Lemuel P. Collins and Cymantha O. Collins, his wife, executed to Salvin P. Collins a mortgage upon two parcels of land situate in Santa Clara county, to secure the payment by Lemuel P. Collins to said Salvin P. Collins, mortgagee, of $10,000, with interest at 1 per cent. per month from date, and payable on or before January 12, 1878. The mortgaged property was community property of the mortgagors, Lemuel P. Collins and Cymantha O. Collins, his wife, a homestead having been duly declared thereon under and by virtue of the laws of the state of California. Cymantha O. Collins was possessed of separate estate and property, and, in purchasing the land mortgaged, Lemuel P. Collins, her husband, had used over $5,000 of his said wife's funds in paying the purchase price of said land, for which sum he was indebted to her at the date of the mortgage.. Salvin P. Collins, the mortgagee, knew the foregoing facts, and for the purpose of inducing Cymantha O. Collins, the wife, to unite in the execution of the mortgage, and for her benefit, and for the benefit of the children of herself and of her husband, at and immediately before the execution of the mortgage, promised and agreed with the mortgagors and their children that if she, the said Cymantha, would unite in the execution of the mortgage to him, he would, in the event of an action to foreclose and sell the mortgaged premises, set apart and convey to the said Cymantha