Procedure, and the implied denial thereof. When the court fails to find on a material issue, the judgment will not be reversed if the finding omitted must have been adverse to the appellant. Such is the rule laid down in Hutchings v. Castle, 48 Cal. 152. The rule has been since followed. McCourtney v. Fortune, 57 Cal. 617. If carefully examined, the cases apparently in conflict with it will be found not to be really so.

The time to commence an action under section 738 of the Code of Civil Procedure is limited only by a continuous adverse possession of the lands for 10 years on the part of the defendant. The mere assertion of an adverse claim, without possession or any proceeding to enforce it, can never ripen into a legal or equitable right as against one seized of the legal estate when the adverse claim was first asserted. Each day's assertion of an adverse claim gives a cause of action to "quiet title" until such an action has been brought. An actual adverse possession of the land, accompanied by a claim to the fee, will give the legal title, in which will be merged all lesser estates or equitable claims which the possessor may have asserted. Here, on facts proved beyond controversy, the court could not have found a 10-years' continuous adverse possession by the original defendants or their grantors.

The persons named in the acts of 1857 and 1862 entered into the possession under the contract with the state set forth in the former and substantially repeated in the latter act. The three years prescribed in the act of 1862 within which lands were to be reclaimed, as a condition precedent to the vesting of the state title in the grantees, expired April 10, 1865. There is nothing in the evidence to indicate that the grantees commenced to occupy adversely after the expiration of the three years. But if this had appeared, the adverse holding was not continued for 10 years. On the contrary, on the eleventh day of November, 1867, the persons named in the act of 1862, or their assignees, received a patent, signed by the governor, with the state seal attached, purporting to grant to such persons and their assigns the state title to the lands to which this action relates, under which and the acts aforesaid the original defendants herein claim to have acquired the title. If it be conceded the patent is void, the reception of it and claim under it were, nevertheless, a recognition of the title of the state, which would have suspended the running of the statute, even had the running of the statutory limitation commenced. Farish v. Coon, 40 Cal. 33. If, therefore, the court below had found 10 years' adverse possession by the defendants or their predecessors, the plaintiffs would have been entitled to a new trial, since there was no evidence to sustain such a finding.

Again, the "grantees" entered into possession of such lands as they took possession of under a contract, by which they agreed that no title should pass unless the governor and surveyor general should certify to certain reclamations. It is obvious that the defendants, who

have neither reclaimed the lands nor received the certificate, had not been holding adversely to the state when this action was commenced.

8. Appellants contend that the attorney general has no powers except such as are conferred by statute, and no statute authorized him to bring this action. In People v. Stratton, 25 Cal. 242, the supreme court said that without any statute expressly conferring the power, the attorney general may file an information, in the nature of a bill in chancery, to annul a patent, when the matter involved in the suit immediately concerns the interests of the state; but it is claimed that the statement was merely dictum. However this may be, the legislature has expressly recognized the pendency and approved of the prosecution of the present suit. St. 1877-78, p. 358. This approval and ratification of the conduct of the attorney general relates to the filing of the complaint, and is equivalent to an original authorization to commence the action and prosecute it to judgment.

9. The patent relied on as constituting a certificate of reclamation was issued without authority of law. Of this we take judicial notice. The patent is therefore void. Inasmuch as the instrument, if it remained uncanceled, would not pass the title, nor cast upon the state the burden of proving its invalidity by extrinsic evidence, liable to loss, or to be availed of only in a court of equity, it is no cloud on the plaintiffs' title. Pixley v. Huggins, 15 Cal. 127, and many cases following the rule there laid down. But the action is brought not only to annul the patent, but for a decree that the plaintiffs out of possession are the legal owners entitled to the possession, and that the defendants have acquired no rights under the acts of the legislature. The question whether they have acquired rights under the acts of the legislature is to be determined upon evidence that the defendants or their predecessors did or did not reclaim the lands, or at least that the governor and surveyor general had so certified, as required by the acts. Under the Code the plaintiffs were entitled to have determined the claim of the defendants that they were the owners of the lands, or had acquired some rights in them. Inasmuch as the court below declared as a conclusion of law, on the facts found, that the original defendants have no right, title, or interest in the lands to which they assert a claim, the further conclusion of law, that the patent is void and they have acquired no rights under it, is unimportant. As the greater includes the less, the declaration that the defendants have no right, title, or interest would include a declaration that they have none under the patent, if the last had been omitted. We ought not to grant a new trial merely because of an unnecessary and immaterial statement in the conclusions of law.

10. The notice, termed a notice of appeal from the judgment, was served and filed prior to the entry of any final or other judgment in the court below. The appeal from the judgment should therefore be dismissed. McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal. 43.

The appeal from the judgment is dismissed, and the order denying a new trial is affirmed.

We concur:

Ross, J.; SHARPSTEIN, J.; MYRICK, J.

THORNTON, J. I adhere to my opinion formerly given in this case. If the full case were before us, I would concur in the opinion of Justice MCKINSTRY. I say this upon a full examination of all the points discussed by him.

(66 Cal. 575)

FULTON, Adm'r, v. ONESTI and others. (No. 8,774.)
Filed April 8, 1885.

MALICIOUS PROSECUTION-INSTRUCTIONS AS TO PROBABLE CAUSE.

Where, in malicious prosecution, the facts constituting the alleged probable cause are admitted, or clearly established, the determination of their effect is a matter of law, and the court should instruct the jury that there was or was not probable cause; but if the facts are controverted, and the evidence conflicting, their legal effect becomes necessarily hypothetical, and the court should instruct the jury that if they find in a certain way the facts as found will or will not amount to probable cause; but the instruction should in no case be such as to leave to the jury the determination of whether or not the established facts amount to probable cause.

Department 2. Appeal from the superior court of the city and county of San Francisco.

Chas. B. Darwin and Jos. Kirk, for appellants.

J. C. Black and Wm. Matthews, for respondent.

BY THE COURT. Appellants (defendants) ask for a reversal because of errors in the charge of the court. The only exception to the charge, given by the court of its own motion, was as follows:

"That it 1 ft it to the jury to find probable cause or not, without advising them what facts, if found by them to be true, would constitute probable cause. It left a question of law, namely. What facts constitute probable cause?—to` the jury."

Respondent does not claim that the foregoing was an insufficient specification of the portions of the charge objected to. The court charged:

"If you are satisfied from the evidence that the defendant procured the arrest and imprisonment of plaintiff as alleged in the complaint herein, and that the same was done with malice, and without probable cause therefor, then you will find for the plaintiff."

And again:

"If, on the other hand, you find that no malice or want of probable cause has been shown on the part of the defendants, then your verdict will be in favor of the defendants."

In Harkrader v. Moore, 44 Cal. 152, it was said:

"When the facts in reference to the alleged probable cause are admitted, or established beyond controversy, then the determination of their legal effect is absolute, and the jury are to be told that there was or was not probable cause, as the case may be. When, however, the facts are controverted and the evi

dence is conflicting, then the determination of their legal effect is necessarily hypothetical and the jury are to be told that if they find the facts in a designated way, then that such facts, when so found, do or do not amount to probable cause. But in neither case are the jury to determine whether or not the established facts do or do not amount to probable cause."

The charge was erroneous.

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

(66 Cal. 572)

POMEROY V. GREGORY. (No. 8,244.

Filed April 8, 1885.

1. FINDINGS NECESSITY OF, AS TO ADMITTED FACTS. A finding as to admitted facts is not necessary. 2. INSOLVENCY-PROOF OF NOTICE TO CREDITORS.

In an action on a promissory note, where the defense of a discharge in insolvency is pleaded, a finding that notice to creditors to prove debts and choose assignee was given, is not material if the court finds, in accordance with allegations in the answer, that an order appointing an assignee was duly made, and that the plaintiff appeared in the insolvency proceedings.

Department 1. Appeal from the superior court of the county of Monterey. Action on a promissory note; the defense set up of discharge in insolvency.

Wm. H. Webb and Jas. A. Wall, for appellant.

N. 4. Dorn and W. M. R. Parker, for respondent.

BY THE COURT. The appeal is from a judgment in favor of the defendant.

1. The findings that the defendant made and delivered the promissory note sued on, on the eighth day of May, 1881, and that there is due interest thereon (less $70) from that day, are immaterial. The complaint avers that the note was executed and delivered on the day it bears date, May 8, 1878; that no part of the interest has been paid, except $70. The answer contains no denials of these averments.

2. The answer sets forth certain proceedings initiated by the petition of defendant, and culminating in a judgment or order discharging him from all his debts and liabilities. It is contended by appellant that the findings are fatally defective, because there is no finding that the notice to creditors to prove their debts and choose assignees was published as alleged in the answer. But the defendant, in his answer, avers that the court, on the return-day of the notice, "duly gave and made" an order appointing an assignee, and there is a finding that the order was duly given and made. The defendant further alleged and the court found that the plaintiff appeared in the insolvency proceeding. The averments and findings were sufficient, independent of the averment as to publication. Code Civil Proc. 457.

3. Plaintiff further contends the court failed to find that defendant had been discharged from his debts. If it be conceded that the judgment of discharge is a different thing from the certificate provided for in section 51 of the insolvent act of 1880, the finding is that the

court granted a discharge. For aught that appears, the writing set forth in the finding is a copy of the judgment. It is headed, "Certificate of Discharge," but was filed with the clerk of the court. Judgment affirmed.

(66) Cal. 574)

POMEROY V. GREGORY.

(No. 8,341.)

Filed April 8, 1885.

1. INSOLVENT ACT, WHAT DEBTS DISCHARGed under.

The California insolvent act of 1880 authorizes a discharge of a debt contracted in 1878.

2. NOTICE TO CREDITORS IN INSOLVENCY-SERVICE, HOW MADE.

The California insolvent act of 180 authorizes a service of notice to creditors by mail or person; and either is sufficient.

Department 1

Monterey.

Appeal from the superior court of the county of

Wm. H. Webb and Jas. A. Wall, for appellant.

N. A. Dorn and W. M. R. Parker, for respondent.

BY THE COURT. 1. Defendant could be discharged, under the insolvent act of 1880, from a debt contracted in 1878. Hundley v. Chaney, 4 Pac. REP. 238.

2. The act of 1880, p. 83, § 7, authorizes a service by mail or personally. Either form of service is sufficient.

The orders are affirmed.

(66 Cal. 576)

Estate of HAMILTON. (No. 9,972.)
Filed April 9, 1885.

ESTATES OF DECEDENTS-ALLOWANCE TO WIDOW-EFFECT OF SECOND MAR

RIAGE.

Where out of the estate of a decedent an anowance is made for the maintenance of the widow, and she marries again, she is no longer the widow of deceased, and therefore no longer entitled to have maintenance out of the estate as such, and an order of allowance to her made therefor, terminates at her second marriage, without further order of the court.

Department 2. Appeal from the superior court of the county of Sacramento.

Brown & Daggett, for appellant.

Atwell & Bradley, for respondent.

BY THE COURT. When Mrs. Hamilton, widow of the deceased, became the wife of Mr. Dale, she was no longer the widow of the deceased, and was no longer entitled to have maintenance out of the estate as such. The order of allowance to her therefor made, terminated at her second marriage, without the further order of the court. There are no minor children, and therefore no question as to the maintenance of such children. Doubtless the court below can, upon final distribution, treat as advances to Mrs. Dale the amounts improperly paid to her, and have the same deducted from her distributive share.

The order appealed from is affirmed.